text:
    Harris Trust and Savings Bank, Plaintiff-Appellee, v. Loncte D. McCray, Defendant-Appellant.
    (No. 59855;
    First District (4th Division)
    July 24, 1974.

      Ron Fritsch, of Chicago, for appellant.
    Chapman and Cutler, of Chicago (Michael W. Ford and Terry A. McIlroy, of counsel), for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This action was filed in order to recover a judgment for an amount of money allegedly due on a credit card account. The defendant filed a motion to dismiss the complaint, and the trial court denied the motion. The only question presented in this appeal is whether a credit card issuer may commence an action based upon the holders failure to pay for the purchase of goods more than 4 years after the issuers cause of action accrued.

The facts are undisputed. Defendant made two purchases with a credit card issued to her by the plaintiff. On December 14, 1966, she purchased goods for $400, and on December 19, 1966, she purchased additional goods for $102.27. She made no other purchase and incurred no other debts, except for interest, through the use of the plaintiffs card.

Defendant made three payments on her account with plaintiff: $20 in April 1967; $39.98 in June 1967; and $35 in March of 1968. Finance charges of $58.30 were charged to the account from February to September 1967. The defendant’s account was “charged off” plaintiff’s books in September 1967, when the balance due was $500.59. Defendant’s final payment of $35 was made after her account was “charged off.”

On June 13, 1972, plaintiff filed a complaint against the defendant seeking a judgment for the balance of $465.59 plus $77.32 attorney fees, for a total of $542.91. On January 16, 1973, the defendant filed a motion to dismiss which asserted that plaintiffs claim was barred by the 4-year limitation in section 2 — 725 of the Uniform Commercial Code. (Ill. Rev. Stat. 1971, ch. 26, § 2 — 725.) Plaintiff filed a counter petition on March 27, 1973, objecting to defendant’s motion to dismiss on the ground that its cause of action was not brought upon a contract for sale but rather a debtor-creditor relationship. On April 24, 1973, the Honorable Joseph A. Solan denied the defendant’s motion to dismiss.

On November 8, 1973, the cause was tried without a jury before the Honorable George W. Kasserman, who found for the plaintiff. Judgment was entered against the defendant in the amount of $542.91 and costs. On November 30, 1973, the defendant filed this notice of appeal.

Defendant argues that, when she purchased merchandise with a credit card issued by plaintiff, she entered a “contract for the sale of goods.” She contends that plaintiffs cause of action is based upon a breach of this contract, which occurred when she failed to pay for the goods, and is thus governed by the 4-year limitation of section 2 — 725 of the Uniform Commercial Code. That section provides:

“(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.” Ill. Rev. Stat. 1971, ch. 26, § 2 — 725.

Plaintiff’s position is that the credit card transaction involved herein created a debtor-creditor relationship. It argues that the cause of action could not have arisen from the failure to pay for the goods because the goods were paid for by the bank. Instead, plaintiff urges, the cause of action arose when the defendant failed to repay the bank for funds advanced on her behalf to the merchant where the goods were purchased. Therefore, plaintiff argues, the applicable statute of limitations is that dealing with written contracts, including promises to pay money, which provides:

“Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’, enacted by the Seventy-second General Assembly, actions on bonds, promissory notes, biHs of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, biH, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.” Ill. Rev. Stat. 1971, ch. 83, § 17.

Before discussing the specific question raised in this appeal, we deem it advisable to consider briefly the nature of the transaction involved herein.

The bank credit card system involves a tripartite relationship between the issuer bank, the cardholder, and merchants participating in the system. The issuer bank estabfishes an account on behalf of the person to whom the card is issued, and the two parties enter into an agreement which governs their relationship. This agreement provides that the bank wül pay for cardholder’s account the amount of merchandise or services purchased through the use of the credit card and wiH also make cash loans available to the cardholder. It also states that the cardholder shaH be Hable to the bank for advances and payments made by the bank and that the cardholder’s obfigation to pay the bank shaH not be affected or impaired by any dispute, claim or demand by the cardholder with respect to any merchandise or service purchased.

The merchants participating in the system agree to honor the banks credit cards. The bank irrevocably agrees to honor and pay the sales slips presented by the merchant if the merchant performs his undertakings, such as checking the list of revoked cards before accepting the card. The sales slips signed by the cardholder at the time of the purchase contain the following undertaking by the cardholder:

“I hereby authorize the Issuer of the Midwest Bank Card imprinted above to pay the amount shown as Total hereon upon presentation hereof to Issuer by a bank which is a member of the Midwest Bank Card system. I hereby promise to pay said Issuer the amount shown as Total hereon (together with other charges due thereon, if any) subject to and in accordance with the terms of the cardholder agreement governing the use of Issuers Midwest Bank Cards.”

These slips are forwarded to the member bank which originally issued the card. The cardholder receives a statement from the bank periodically and may then decide whether to make payment to the bank in full within a specified period, free of interest, or to defer payment and ultimately incur an interest charge.

Defendant contends that the foregoing transaction does not establish a debtor-creditor relationship between the issuer bank and the cardholder. She points out that no money was in fact loaned in this transaction, even though the agreement provides for cash advances. Defendant concedes that money advanced to her would be a loan, but she contends that money paid directly to merchants constitutes a sales contract for the purchase of goods.

We believe that money advanced to a merchant in payment for merchandise received by the defendant constitutes a loan. The defendant promised to repay the bank for money it paid to the merchant for her benefit. The credit card allowed defendant to make use of the resources of the issuer bank, and the merchant is in the same financial position as if he were receiving cash from the bank at a small discount for its service. Under this arrangement, the bank assumed the risk that the cardholder would not pay the debt and has no recourse against the merchant.

Defendant argues that the terms of the cardholder agreement itself recognize a difference between a cash advance made directly to the cardholder and payment for merchandise purchased through the use of the credit card. Thus, she urges, we should consider the former a loan and the latter an assignment of a retail installment sales contract from the merchant to the bank.

Plaintiff contends that it is not possible to read into this distinction the conclusion that the direct advance creates a loan and the indirect advance is the acceptance of an assignment of a retail installment sales contract. It urges, to the contrary, that the distinction is merely for the purpose of reflecting the different methods involved in disbursing these loans and computing the amounts necessary to repay them.

Defendant’s argument is belied by the definition of a retail installment sales contract in effect at the time the transactions in question occurred in 1966. Although the act expired the following year, it is interesting to note that it stated:

“ ‘Retail installment contract’ or ‘contract’ means and includes any agreement, negotiated or entered into in this state, including a chattel mortgage, conditional sale contract, or any other form of instrument evidencing an agreement to purchase goods for delivery to a person residing in the State of Illinois, other than for a commercial or business use of for the purpose of resale, by payment of the purchase price in two or more installments over a period of time and pursuant to which title to, or a hen upon the goods, which are the subject matter of the sale, is retained or taken by the seller as security, in whole or in part, for the buyer’s obligation.” Ill. Rev. Stat. 1965, ch. 121%, § 223.

Title to the goods in the case at bar unquestionably passed to defendant when she signed the sales slip and took possession of them, no hen was retained thereon, and the payment of the purchase price did not involve two or more installments. Thus, the statutory definition of a retail installment sales contract in effect at the time of the transaction in question clearly did not include the tripartite agreement involved here.

We are not persuaded to reach a contrary conclusion by the two cases defendant cites in support of her argument. She rehes upon Johnson v. Sears Roebuck & Co. (1973), 14 Ill.App.3d 838, 303 N.E.2d 627, as authority for the proposition that Illinois courts have rejected the notion that a credit card account is in substance a loan of money. However, Johnson involved a department store credit card, used solely for credit purposes, in which there were only two parties, the store and the customer. Here, there was a tripartite relationship in which the bank paid merchants for goods purchased by the cardholder, and the defendant agreed to repay the bank rather than the merchant. Thus, in our opinion, Johnson is not authority for defendant’s contention that a three-party bank-charge-card transaction is in substance a loan of money.

Defendant also cites Berry v. G. D. Searle Co. (1974), 56 Ill.2d 548, 309 N.E.2d 550, wherein the Supreme Court of Illinois held that § 2-725 of the Uniform Commercial Code is applicable to the sale of birth-control pills. We do not believe that Searle is applicable here because the relationship between the defendant and the bank was that of debtor-creditor.

In view of the foregoing, we conclude that the payments made by the plaintiff to the merchants pursuant to the cardholder agreement constituted a loan of money. Thus, plaintiff’s cause of action was governed by the 10-year limitation applicable to written contracts, including promises to pay money. It was not barred by the expiration of the 4-year statute of limitations governing contracts for the sale of goods.

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
    Lorraine Spiron, Plaintiff-Appellant, v. Albert Spiron, Defendant-Appellee.
    (No. 56393;
    First District (5th Division)
    July 26, 1974.

      Philip E. Howard, of Chicago (William J. Harte, of counsel), for appellant.
    James J. Hoffnagle, of Chicago (Taylor, Miller, Magner, Sprowl & Hutchings, of counsel), for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff filed a two-count complaint for personal injuries alleging in count I defendant’s negligence and in count II his willful and wanton misconduct. At the close of plaintiffs case, the trial court granted defendant’s motion to strike and dismiss count II, but reserved ruling on defendant’s motion for a directed verdict on count I. At the close of all the evidence, defendant submitted the following special interrogatory: “Was the plaintiff before and at the time of the occurrence using ordinary care for her own safety?” The jury answered “No” to the special interrogatory and returned a verdict for plaintiff in the amount of $37,400. Defendant filed a post-trial motion seeking the court to declare the general verdict inconsistent with the special interrogatory. The court denied this motion, but entered judgment n.o.v. in favor of defendant holding that plaintiff was guilty of contributory negligence as a matter of law.

On appeal plaintiff contends: (I) that the trial judge erred in overturning the jury verdict and holding plaintiff guilty of contributory negligence as a matter of law; and, alternatively, (2) that the court erred in removing from the jury’s consideration the question of defendant’s willful and wanton misconduct. Defendant cross-appeals contending that the jury’s general verdict is inconsistent with its special finding of fact thereby necessitating the court to enter judgment n.o.v. for defendant.

Four witnesses testified at trial with respect to the occurrence. Plaintiff testified that she divorced her husband in July, 1964, and established her residence at 3801 North Odell Avenue with her parents Mr. and Mrs. Schomburg. She was awarded custody of their minor son Kenny while her husband was permitted visitation rights that were to be exercised one day a week on either Saturday or Sunday. On Saturday, April 9,1966, at approximately 10:00 A.M. defendant called for Kenny. Plaintiff opened the door and Kenny walked out and down the front steps. As defendant turned and followed, plaintiff asked him what time he would bring Kenny home. Defendant did not respond and plaintiff repeated the question. Defendant maintained his silence and continued to walk toward his car parked in front of the house facing north. Plaintiff followed asldng defendant again and again, her voice increasingly louder, but still getting no reply. Defendant placed Kenny in the front seat of his car and then entered himself on the driver’s side. Plaintiff bent over alongside the driver’s side of the car placing her right hand on the door handle and left hand on the side view mirror and continued asking defendant when he would bring Kenny home. Defendant still declined to answer but instead started the engine and began allowing the car to slowly move forward north on Odell. She followed walking alongside the car while bent over so that her lower torso was facing north and her upper body was twisted toward the car. The speed of the car remained constant, creeping slowly for the length of the neighbor’s house. She was now quite agitated and was hollering. As the car reached the house north of her parents, it suddenly and without warning increased its speed. Plaintiff was jerked off balance, her left hand flying off the side view mirror while her right hand grasped the door handle to keep from falling. The acceleration of the car spun her around so that her back was against tire car although her right hand remained on the door handle. The next moment she found herself on the street. She only vaguely remembers the ambulance ride to Northwest Hospital and the subsequent events.

On cross-examination plaintiff testified that defendant had always brought ICenny home at the end of the day and that she had no reason to suspect that defendant would harm Kenny. She had no recollection of defendant handing her an envelope when he came to the door or of looking inside any envelope, nor did she know until after the accident that defendant had obtained a court order that allowed him to keep Kenny overnight.

Defendant testified that when he called for Kenny on the day in question, plaintiff answered the door. He handed her an envelope containing the previous week’s child-support money and in answer to her question Concerning the current week’s child-support payment replied that he would have it when he brought Kenny back the next day. He did not explain to plaintiff that he had recently obtained a court order permitting him to keep Kenny overnight. Plaintiff voiced an objection to keeping Kenny overnight and followed defendant out the door and to his car. Defendant placed Kenny in the back seat of the car, climbed in the front seat, locked the doors and raised the windows. Plaintiff stood in front of the car blocking its path, but when he turned on the engine and started to back up, she moved alongside the driver’s side pounding on the window and demanding that defendant release Kenny. He started the car forward and she walked along with it, bending over, keeping her right hand on the door handle and pounding on the window with her left hand. She continued her demand to let Kenny out of the car but defendant did not respond. They had traveled three to four houses down from her mother’s home when, without a prior warning, he increased the speed of the car. Plaintiff had to trot to keep up with the car. After three quarters of a block, she stopped moving, grabbed the door handle with both hands, and allowed the car to drag her along. He stopped the car immediately and she fell to the ground near the rear tire. She did not drag for more than a foot or so.

Mary Schomburg, plaintiff’s mother, testified that on the day of the accident she was sitting in the living room of her home watching television when defendant arrived. Kenny went out the door and defendant placed him in the car on the passenger’s side. Plaintiff followed and stood by the driver’s side of the car. It appeared that she was talking to defendant. The car started moving forward slowly and plaintiff was walking alongside it on the driver’s side. The witness went out to the porch and called her to come back to the house. The car started moving faster as it passed the second house until it pulled away and she saw her daughter lying on the pavement.

Officer Thomas Swane, the investigating police officer, testified that he was called to 3801 North Odell, and the accident occurred in front of 3815 North Odell. He further testified that plaintiffs mother told him that plaintiff appeared to be hanging onto the door and that the mother hollered three or four times to let go of the car.

OPINION

Plaintiff contends that the trial judge erred in overturning the jury verdict and holding plaintiff guilty of contributory negligence as a matter of law. The standard to be applied for entering judgment n.o.v. and for finding that the proof presents no factual question for the jury’s consideration is the same, namely, that all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant, that no contrary determination based on that evidence would ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504; Baran v. City of Chicago Heights, 43 Ill.2d 177, 251 N.E.2d 227.) The dispute here is simply the application of this standard to the particular facts of this case.

From the record in this case, it cannot be said that plaintiff’s conduct was contributorily negligent as a matter of law. Viewing all the evidence in its aspect most favorable to plaintiff, it cannot be said that defendant has met his burden in demonstrating that plaintiffs actions proximately caused her injuries, and that no contrary conclusion could ever stand. The testimony of plaintiff and plaintiff’s mother suggests that the sudden acceleration of defendant’s automobile, without warning, caused plaintiff to fall and injure herself. Plaintiff testified that the sudden acceleration spun her around so that her back was against the car. She hollered for defendant to stop and the next thing she remembered was that she was lying in the street. Plaintiff’s mother testified that her daughter was walking alongside the car when it started to go faster and pull away. She next saw her daughter lying on the street. Defendant admits to having increased the speed of the car without warning, but denies that this sudden acceleration caused plaintiff to fall. It was his testimony that she was forced to trot when he increased the speed of the car, that she started to grab for the side view mirror as she was falling, but then grabbed onto the door handle with both hands and allowed herself to be dragged by the car. He immediately stopped the car and she fell to the ground. He indicated that she was carried by the car not more than a foot.

The investigating police officer’s testimony does not substantiate either version. His accident report only indicates that plaintiffs mother thought her daughter was hanging onto the door and that the mother called to her daughter to let go. Considering all the evidence presented, it cannot be said that the evidence when viewed most favorably to plaintiff overwhelmingly supports a conclusion that plaintiff’s actions proximately caused this accident. Hie trial court therefore erred in entering judgment n.o.v., holding plaintiff guilty of contributory negligence as a matter of law.

However, defendant contends that the jury’s answer “No” to the special interrogatory: “Was the plaintiff before and at the time of the occurrence using ordinary care for her own safety?” required that judgment be entered in favor of defendant. Defendant argues that the jury’s answer is a finding of plaintiff’s contributory negligence, that, as such, it is inconsistent with the general verdict and therefore required the judgment n.o.v. We find no merit in this contention. It is well settled that contributory negligence requires the finding that: (1) plaintiff’s conduct was negligent, and (2) that the negligence proximately caused plaintiff’s injuries. (Buehler v. White, 337 Ill.App. 18, 85 N.E.2d 203.) The special interrogatory did not address itself to the second element, i.e., the question of the proximate cause of the injury.

Nor can defendant claim that the failure of plaintiff to object to the deficiency in the special interrogatory when it was given forecloses his claim now that the jury’s answer does not control the general verdict. The responsibility for the incomplete special interrogatory must fall on defendant. (Debolt v. Wallace, 56 Ill.App.2d 380, 206 N.E.2d 469.) Since the jury’s answer cannot be said to be inconsistent with its general verdict, the special interrogatory is not controlling.

We have reviewed the record and find that the evidence supports the jury’s general verdict. Hierefore, since the special interrogatory is not controlling and because plaintiff was not guilty of contributory negligence as a matter of law, judgment should have been entered on the jury’s general verdict. In light of this conclusion, it is unnecessary to consider plaintiffs other contention. The judgment is reversed and the cause remanded with directions to enter judgment on the verdict of the jury.

Reversed and remanded, with directions.

DRUCKER and BARRETT, JJ., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Coula Papadatos, Plaintiff-Appellee, v. National Tea Company, Defendant-Appellant.
    (No. 58430;
    First District (5th Division)
    July 26, 1974.
    Robert W. Karr, of Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellant.
    Alan M. Depcik and Kenneth A. Helmin, both of Katz, Karacic & Mansfield, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

A jury awarded plaintiff $10,000 for personal injuries sustained in a fall in defendant’s parking lot adjacent to its store. On appeal, defendant contends the evidence failed to establish any negligence on its part and that the trial court should have directed a verdict in its favor or entered judgment notwithstanding the verdict.

It appears that plaintiff parked her car in defendant’s lot on a late afternoon in May and, as she walked toward the store entrance, stepped on something round which caused her to twist her ankle and fall forward. She testified that the pavement was a combination of asphalt and pressed stone and that there was a large hole about 2 feet in circumference in the surface of the lot and on prior occasions she had observed that when automobiles drove through the hole, stones were thrown from the hole onto the pavement adjoining it.

Plaintiff further testified that she was about 2 feet from a manhole cover when she first started to slip, and she stumbled forward about 10 feet before falling. She did not see the object that she stepped on, nor did she know whether it was a stone, pebble or some other object. Neither could she say how the object happened to be there or how long it had been on the ground. She testified that it felt like a foreign object, a foreign stone, and that “It was more of a round object.” After she fell, she looked back and saw papers, stones and glass in the area of her fall. Photographs taken 5 days later were identified as portraying the condition of tire area at the time of the occurrence. They show the hole described by plaintiff and also that loose pieces of stone were in the hole and on portions of the pavement adjacent thereto.

Defendant’s store manager testified that the lot was swept every Monday, Thursday and Friday morning. On other days, he would make morning and afternoon inspections and, if necessary, he would then have it swept. Plaintiff told him she had fallen, and he noticed she was bruised and had blood on her forehead. She pointed out the general area of her fall but did not point to any object as having caused her to slip. She told him that she must have fallen on a pebble, but he saw none in that area. The witness testified he could not recall whether there was a hole with stones in it in the parking lot on that day. He stated the lot was swept on the morning of the occurrence; however, he was impeached by an answer in his discoveiy deposition that he could not swear to the fact that the lot was swept on the day of the occurrence.

OPINION

Defendant contends that actionable negligence was not established because “plaintiff did not know what the object was, how long it had been there, the size of the object, whether the object was placed at the point plaintiff fell by defendant, a third person or by no one at all, or whether the object was related to defendant’s operations.” It argues that because plaintiff was unable to specify the reason for her fall that the trial court should have directed a verdict in its favor or entered judgment notwithstanding the verdict.

The standard applied in determining whether or not to grant a directed verdict or a judgment n.o.v. was set forth in the case of Pedrick v. Peoria and Eastern R. R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

It was also enunciated in the Pedrick decision that a similar standard should determine when negligence and contributory negligence questions become questions of law rather than questions of fact.

“Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue.” Pedrick, supra, at 503.

It is not questioned that plaintiff’s status at the time of the injury was that of a business invitee. As such, defendant owed her the duty of maintaining the premises in a reasonably safe condition. (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153, 125 N.E.2d 47.) Where a business invitee is injured by slipping on a foreign substance, liability may be imposed if the article was there through the negligence of the proprietor or his servants. If there is no showing as to how the article got there, the proprietor can still be held liable if it appears that either he or his servants knew of its presence or that it had been there a sufficient length of time so that its presence should have been discovered in the exercise of ordinary care. Donoho v. O’Connell’s, Inc., 13 Ill.2d 113, 148 N.E.2d 434.

The basic question involved here concerns whether negligence was established by plaintiff in the absence of any testimony concerning the exact reason for her fall. The bulk of the cases dealing with this question involve falls on stairways or slippery floors inside business establishments. While these cases may not be exactly in point, they provide a rational basis to assist in determining here whether the trial court erred in denying defendant’s motion for directed verdict and judgment n.o.v. For example, in Mraz v. Jewel Tea Company, Inc., 121 Ill.App.2d 209, 220-221, 257 N.E.2d 548, a directed verdict was sought by defendant, claiming that negligence could not be attributed to it merely by plaintiff s showing that she had been injured on its premises. In response thereto, the court noted:

“We find the evidence in the instant case was sufficient for the jury to reasonably infer that defendant’s employees were the only possible source of the dropped lettuce leaf and that the question of actual or constructive notice was not material here. The lettuce was related to defendant’s business, and the negligence was circumstantially proved by the testimony that the first time a customer actually came in contact with the parcel of groceries was when the Jewel employees had finished ringing up the bill and had finished packing it into bags, and then the customer was given the bags to take home or given his grocery cart to wheel out to his car. There is testimony that empty produce boxes, including ‘lettuce boxes,’ were brought to the front of the store for use by the cashiers in packaging, and if the area had been swept just before the occurrence, we think it reasonable to infer that the sweeping had been negligently performed.
Although a supermarket is not an insurer for all injuries suffered on its premises, and ‘reasonable care to see that premises are reasonably safe is all that is required’ (Schmelzel v. Kroger Grocery & Baking Co., p. 506), we conclude that the negligence issue was properly submitted to the jury by the trial court. The presence of the lettuce leaf on the floor, under the circumstances portrayed here, ‘makes it more probable’ that defendant or its employees dropped it. Donoho v. O’Connell‘s, Inc., p. 125.” (121 Ill.App.2d at 220-221.)

Also, in Burns v. West Chemical Products, Inc., 12 Ill.App.3d 947, 955, 299 N.E.2d 455, the court, in response to defendant’s contention of a lack of sufficient proof establishing negligence, noted:

“‘[Wjhere a business invitee is injured by slipping on a foreign substance on the defendant’s premises, and there is evidence tending to show that the substance was on the floor through the acts of defendant or his servants, the issue of negligence will be submitted to the jury.’ ”

Of greater significance, and perhaps more analagous to the instant case, are cases involving stairway falls. In particular, the cases of Holsman v. Darling State Street Corp., 6 Ill.App.2d 517, 128 N.E.2d 581, and Wright v. Stech, 7 IIl.App.3d 1068, 1070, 288 N.E.2d 648, contain useful points. In Holsman, the plaintiff was injured after falling down a stairway in defendant’s building. Plaintiff, there, testified that while descending the stairs “something happened,” not being able to describe with specificity the immediate cause of the fall. Defendant argued insufficient evidence on the question of negligence and causal connection. The court quoted from Kidd v. Thomas Gilcrease Foundation (5th Cir. 1952), 194 F.2d 129, 130-131, as follows:

“ ‘In 38 Am. Jur., Negligence, Section 334, it is said: “In accord with the rule governing proof of negligence generally, proximate cause need not be established by the testimony of eyewitnesses, nor by direct or positive evidence, but may be proved by circumstantial evidence; it may be determined from the circumstances of the case.”
‘e ° * We conclude that it was within the province of the jury to decide whether the defendant was negligent and whether such negligence proximately caused the plaintiff’s injury, and that the Court erred in directing a verdict for the defendant.’ ” (6 Ill.App.2d at 522-523.)

The Holsman court also stated as follows, at pages 523 and 524:

“The defendants also assert that the evidence concerning the cause of the plaintiff’s fall was purely circumstantial and they contend that circumstantial evidence cannot establish a factual conclusion unless such conclusion is the only one that can reasonably be drawn therefrom. In support of their argument they cite the case of Celner v. Prather, 301 Ill.App. 224. In Lindroth v. Walgreen Co., 407 Ill. 121, the Supreme Court set out the correct rule with reference to circumstantial evidence. The court said:
“In the case of Tennant v. Peoria and Pekin Union Railway Co., 321 U.S. 29, the court, in holding the evidence was sufficient to submit the case to the jury, said, “The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury.” * * *
‘In Devine v. Delano, 272 Ill. 166, and Town of Cicero v. Industrial Com., 404 Ill. 487, this court held the rale to be that reasonable inferences may be drawn from established facts and all that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion.’
In the case before us there was evidence in the record that the stairs were maintained in a condition which might have caused the plaintiff to fall. The plaintiff was walking down the defective stairs. He testified that he fell because of some interference with his feet on the stairs. That he slipped is supported by the evidence of another witness. There is sufficient evidence from which the jury might reasonably draw the inference that his fall was caused by the worn and defective condition of the stairs.”

In Wright, the court responding to a Pedrick-rale argument for the direction of a verdict in a fall case, noted as follows:

“No direct evidence of fire circumstances surrounding the fall was available, as there were no eyewitnesses to it. The question presently before this court then is whether the testimony of Christine White, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant that no verdict for the plaintiff could ever stand.
There can be no question that from the testimony concerning the condition of the stairwell and stairs on the day of the fall the jury could have concluded that the defendant was negligent in maintaining them. The staffs were littered with garbage and debris and had been for some time. The stairwell was dark, the only illumination being provided by the skylight, which was also partially covered with debris. The electric light fixture intended to provide additional illumination was inoperative.
A more difficult question is whether the jury could have found that the decedent’s fall resulted from the defendant’s negligence. There was no eyewitness to the fall and hence no direct evidence concerning its cause. However, it is not essential that causation be shown by direct evidence; it may be established by facts and circumstances which, in the light of ordinary experience, reasonably suggest that the defendant’s negligence operated to produce the injury.” (7 Ill.App.3d at 1070.)

Further, in Burg v. Great Atlantic and Pacific Tea Co. (7th Cir. 1958), 256 F.2d 613, 614, involving a fall in defendant’s store as the alleged result of a waxed incline, the plaintiff testified that she had no idea what caused her to fall. The defendant claimed that a directed verdict should have been granted. (The Pedrick rule was not involved.) The court held:

“It was not necessary for appellant to establish what actually caused her to fall if from the circumstances, as revealed by the evidence, it would be reasonable for a jury to infer that the fall was occasioned by the fact that the incline had been waxed.” (256 F.2d 613, 614.)

The court, in Burg, reversed the trial court’s direction of a verdict for defendant and remanded, stating there was sufficient evidence to require the submission of the issue of negligence to the jury.

Finally, in Donovan v. Raschke, 106 Ill.App.2d 366, 246 N.E.2d 110, involving injuries sustained as the result of certain materials being placed on a sidewalk, the defendant contractors maintained that they were not shown to be negligent because there was no direct evidence presented linking them to a roll of wire (which apparently caused the injury). Hiere the court stated, at page 373:

“We find that the trial court correctly submitted that issue to the jury. Direct evidence is not required if there is a reasonable basis from which a jury could have drawn the inference that the wire mesh had been placed at the scene by Lanite or Eugene Tilseth.”

In the instant case, although there is no direct proof as to how the object, allegedly stepped on by plaintiff, came to be on the pavement, plaintiff did testify that it was round and that it felt like a pebble or a stone. In addition, from the photographs received in evidence, it appears there were many small stones on the pavement and that there was a hole or depression in defendant’s lot which had small stones in it. Plaintiff also testified she had seen the hole on prior occasions during the year she had shopped at that store and had previously observed automobiles driving through the hole, causing stones to be thrown onto the pavement.

We have examined the cases cited by defendant in its briefs, and we find that each was decided on the basis of failure of plaintiff to establish defendant’s actual or implied, knowledge of the presence of the object or of the condition which caused an injury.

Here, we believe that it could be reasonably inferred from the facts outlined above that defendant had prior knowledge of the existence of the hole as well as the fact that small stones were on the pavement in the area around the hole and that a reasonable inference could also be drawn that defendant knew or should have known that automobiles passing through the hole in the pavement caused stones to be thrown on the surface of the lot.

In accordance with the Pedrick rule, we have viewed the evidence in a light most favorable to plaintiff, and we cannot say that evidence so overwhelmingly favors defendant that no contrary verdict could ever stand.

For the reasons stated, the judgment is affirmed.

BARRETT and LORENZ, JJ., concur.


author: Mr. JUSTICE DRUCKER

text:
    Jorge Rodriguez, Plaintiff-Appellant, v. The City of Chicago, Defendant-Appellee.
    (No. 58876;
    First District (5th Division)
    July 26, 1974.

      Lane, Falasz, Pollman & Munday, of Chicago (Fred Lane and John Munday, of counsel), for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Peter Fitzpatrick, Assistant Corporation Counsel, of counsel), for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff, the driver of an automobile, sued defendant for personal injuries resulting when his vehicle went out of control and struck an iron fence post at the side of the roadway. He alleged that the proximate cause of the accident was a chuckhole located in one of defendant’s streets. The jury found in favor of defendant and against plaintiff, and judgment was entered on the verdict.

Plaintiff does not contest the sufficiency of the evidence to support the verdict. On appeal he contends that: (1) the court erred in refusing to allow certain rebuttal testimony to be introduced; (2) defense counsel committed reversible error by his closing argument; (3) error was committed when defense counsel offered to stipulate to the introduction of a police report; and (4) the court erred in denying plaintiff’s motion for a mistrial following a volunteered hearsay statement.

Since the sufficiency of the evidence is not in issue, we shall only highlight the relevant facts. This accident occurred on the Damen Avenue bridge, which is four lanes wide, two lanes going northbound and two going southbound. Plaintiff was driving north, in the outside lane, in his 1967 Camero automobile. He testified and introduced evidence to show that as his car passed over the chuckhole, his head hit the roof of the auto, and he was knocked semi-conscious. He then lost control of the vehicle, and, after traveling 1400 feet, the car struck an iron fence post. Defendant introduced evidence, including expert testimony on a 1967 Camero’s suspension system, which contradicted plaintiff’s theory of the accident and which, if believed, would demonstrate that even if plaintiff’s auto had struck the chuckhole, a fact contested by defendant, the chuckhole would not have caused plaintiff to strike his head against the roof. OPINION

Plaintiff first contends that the court erred in refusing him the opportunity to offer testimony to rebut the expert testimony of defendant’s witness, Dr. Easton. Easton testified to the characteristics of a 1967 Camero automobile and specifically described its suspension system. In answer to hypothetical questions, he stated that striking the chuckhole under the circumstances presented would not deflect or change the course of the automobile, nor would it cause the driver to strike his head against the roof of the car. On cross-examination plaintiff brought out for the first time that Dr. Easton had conducted some road tests, although the results of these tests were never introduced into evidence. In rebuttal plaintiff called Dr. Nagler, who contradicted and further explained Dr. Easton’s testimony concerning the suspension system and the results that would occur if the car struck the chuckhole. Then plaintiff called Edmund Rahal to testify in rebuttal. By way of qualifications it was shown that Rahal was in the profession of reconstructing automobile accidents and running road tests. Plaintiff attempted to introduce the results of Rahal’s tests and have him answer hypothetical questions but was not allowed to do so.

A party holding the affirmative can introduce in rebuttal only such evidence as tends to answer, explain, repel, contradict, or dispose of new affirmative matter introduced by the defendant. (Pope v. St. Johns Hospital, 128 Ill.App.2d 325, 262 N.E.2d 369; Ordway v. Buckingham, 152 Ill.App. 45.) The allowance of rebuttal evidence is a matter within the sound discretion of the trial judge. (Johnson v. Chicago & North Western Ry. Co., 9 Ill.App.2d 340, 132 N.E.2d 678.) Furthermore, as stated in Pepe v. Caputo, 408 Ill. 321, 328, 97 N.E.2d 260:

“It is well settled that where testimony might properly have been introduced, as part of the proof in chief, it is discretionary with the trial court whether such testimony shall be admitted in rebuttal. (City of Sandwich v. Dolan, 141 Ill. 430.) The evidence offered here did not rebut any specific testimony of the defendant’s witnesses. It was definitely cumulative evidence by those who testified in chief.”

Rahl’s testimony concerning road tests could not have rebutted any evidence brought out by defendant for defendant never introduced any evidence of road tests. Only when plaintiff cross-examined Dr. Easton were road tests mentioned, and even then no results of these tests were ever introduced into evidence. If plaintiff was attempting to contradict Dr. Easton’s testimony through Rahal, at most it would only be cumulative to Dr. Nagler’s rebuttal testimony. Plaintiff also argued that such tests would be probative on the issue of liability. This testimony would then more properly belong in plaintiff’s case-in-chief, and the court did not abuse its discretion in refusing to allow it in rebuttal.

As to the court’s refusal to allow Rahal to answer hypothetical questions relating to whether the chuckhole caused plaintiff’s head to strike the car’s roof, the only basis for Rahal’s testimony stemmed from the road tests he conducted. Therefore, if he was allowed to answer these hypothetical questions, plaintiff would be achieving indirectly what he couldn’t do directly. Furthermore, after reviewing the hypothetical questions actually posed, we find that they were improper in that the questions were phrased in a manner in which only one answer was possible, and further, they assumed facts not supported by the evidence.

Plaintiff argues that the court erred in refusing to allow him to offer evidence, in rebuttal, of a prior inconsistent statement made by defendant’s witness, Officer Versteegh. On cross-examination of Versteegh the following colloquy occurred:

“[By plaintiff’s counsel] Q: Yes, somebody asked you to come over to our office or talk with us about this collision, is that correct?
A: I received, I think, several phone calls.
Q: Yes, and you told Mr. Feta that you couldn’t talk with us unless you got permission from the defense lawyers, is that correct?
A: I don’t recall that I told him that. I explained to him that this was a case involving the city of Chicago, and as a police officer, my duty is to testify as to the report and as to what I found at the scene of the accident.
Q: I know, but did you give a statement to them?
A: I didn’t give no written statements. I had a conversation with—
Mr. Lane: Okay. I have no further questions.”

Plaintiff then attempted to call Mr. Feta to testify as to Versteegh’s statements but was not allowed to do so.

“The testimony of a witness as to a collateral or immaterial matter is not subject to impeachment by proof of his prior contradictory statements. People v. Pfandschmidt, 262 Ill. 411, 104 N.E. 804; Wheeler v. City of Le Roy, 296 Ill. 579, 130 N.E. 330.” (Sullivan v. Farmer, 58 Ill. App.2d 37, 46-47, 206 N.E.2d 492.) The trial court in its memorandum opinion on post-trial motion stated that this would constitute impeachment on an immaterial matter. Whether or not Officer Versteegh had told plaintiff’s counsel he could not speak with them without first obtaining permission from defense counsel certainly is at best collateral to the principal issue of what proximately caused the accident. The trial court was correct in the exclusion of this prior statement.

Plaintiff alleges that the court erred in refusing to allow him to recall, in rebuttal, a witness who testified in plaintiff’s case-in-chief in order to clarify his testimony concerning the dimensions of the chuckhole. William Royal was the only witness to give testimony as to the dimensions of the chuckhole. These dimensions were used by both counsel in hypothetical questions to their expert witnesses. Also during a conference between the court and both counsel during trial, plaintiff’s counsel confirmed the dimensions as originally given. After the defense had rested, plaintiff tried to recall Royal in rebuttal. In plaintiff’s offer of proof it is evident that Royal was going to testify that the hole was actually a foot longer in a north-south direction than he had originally indicated.

It was in the trial court’s discretion whether to admit testimony in rebuttal which more properly should have been in plaintiff’s casein-chief and which does not controvert new matter introduced by defendant. (Gray v. Bonfield, 59 Ill.App. 381; Johnson v. Chicago & North Western Ry. Co.) It would have been highly inequitable to allow plaintiff to contradict the undisputed dimensions of the chuckhole, at this stage of the proceedings, especially when these dimensions were originally introduced in his own case-in-chief. Therefore, the trial court did not abuse the discretion vested in him.

Plaintiff urges that prejudicial error was committed when defense counsel during his closing argument averred that the City did not have sufficient funds to compensate every person who gets hurt on a city street. He relies on Panelle v. Chicago Transit Authority, 31 Ill.2d 560, 202 N.E.2d 484, to support his contention. In Panelle a similar closing argument was made. Although objections to the argument were sustained, no instruction was given to the jury to disregard the remarks. Later the trial judge granted a new trial because of the remarks, and this was upheld on appeal.

In Enloe v. Kirkwood, 120 Ill.App.2d 117, 123, 256 N.E.2d 459, the court discussed the trial court’s superior opportunity to weigh the prejudicial effect of improper argument when it said:

“The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a. remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322, 163 N.E. 17.”

Objection to this fleeting remark was quickly made and sustained. Additionally, the jury was instructed to disregard the remark. The trial court, in its memorandum opinion, felt that the curative actions taken immediately after the remark was made were sufficient to overcome any possible prejudice. We find, after reviewing the record, that this decision was not an abuse of discretion.

During plaintiff’s cross-examination of Officer Versteegh many questions were posed concerning a diagram contained in the officer’s police report. The diagram was prepared from the officer’s personal knowledge gained at the scene of the accident. After a few questions, some confusion arose between the witness and plaintiff’s counsel as to lines contained in the diagram. At this point defense counsel stated, “I’ll agree to put that in evidence if there’s any question about it.” Plaintiff, relying on Smith v. Johnson, 2 Ill.App.2d 315, 120 N.E.2d 58, urges that the offer to introduce a police report was reversible error. It should be noted that in Smith defendant “insisted” that the report be introduced into evidence, while in the instant case defendant merely suggested its introduction to assist plaintiff in clearing up any confusion.

Although police reports are usually inadmissible in evidence, it has been held that a diagram made by the officer and contained within the report may be admissible. The diagram is explanatory in nature and would give the jury a clearer picture so that they could more intelligently consider the officer’s testimony. (Walls v. Jul, 118 Ill.App.2d 242, 254 N.E.2d 173.) From reviewing the record we conclude that defense counsel’s remarks were directed solely at the diagram, and since it would have been admissible anyway, we find no prejudicial error was committed.

Finally, plaintiff argues that the court erred in denying his motion for a mistrial when on cross-examination of Officer Versteegh the witness allegedly volunteered a hearsay statement that plaintiff was traveling too fast for conditions. The colloquy went as follows:

“Q: [By plaintiff’s counsel] Now, your job as a police investigator is to make a determination as to what caused a collision, is that correct?
A: Yes, Sir.
Q: All that you determined in your police report is that the automobile skidded and ran off the road and struck the iron guard rail, is that correct?
A: I believe I indicated on the police report that the vehicle was traveling too fast for conditions.”

Plaintiff’s objection was sustained, and the jury was instructed to disregard the remark.

It is a well-established rule that counsel cannot complain about error he himself invited. (Kelley v. Call, 324 Ill.App. 143, 57 N.E.2d 501.) Officer Versteegh’s answer was responsive to the questions asked him, so plaintiff is hardly in a position to complain about responsive answers which his own questions evoked. Furthermore, the court’s prompt actions cured any error that might have existed.

After reviewing the entire record, we find no reversible error. The judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.


author: Mr. JUSTICE BARRETT

text:
    John L. Jamison, Plaintiff-Appellee, v. John B. Lambke et al., Defendants-Appellants.
    (No. 59138;
    First District (5th Division)
    July 26, 1974.

      Thomas R. Phillips, L. Bow Pritchett, and Edward Butts, all of Chicago, for appellants.

      Joseph A. Rosin, of Chicago, for appellee.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Plaintiff commenced this action in the circuit court of Cook County to recover damages for injuries allegedly sustained on June 21, 1967, when he was struck as a pedestrian by an automobile driven by defendant Lambke. At the time of the accident, Lambke was working in the course of his employment for defendant Illinois Bell Telephone Company and was driving a company-owned car. After a jury trial, a verdict was returned in favor of plaintiff for $100,000. The jury also answered a special interrogatory consistent with the general verdict. The court entered judgment on the verdict from which this appeal is taken.

The accident occurred on Washington Boulevard within Garfield. Park in Chicago.

Washington Boulevard passes through Garfield Park in an east-west direction. At the west edge of the park, it intersects with Hamlin Avenue (3800 West). This intersection is controlled by traffic lights. Proceeding east from Hamlin Avenue, Washington Boulevard makes a shallow “S” curve. It then straightens out as it approaches a pedestrian crosswalk. The crosswalk is 30 feet wide and marked by two white lines. Washington Boulevard is 50 feet wide at the crosswalk, with two traffic lanes both east and west.

The accident occurred slightly after 2:00 P.M. At the time, the weather was drizzling rain but visibility was fair. Even though Washington Boulevard curved slightly in an “S” fashion, a pedestrian standing on the curb at the south side of the crosswalk could observe the intersection of Washington and Hamlin approximately 534 feet away.

At the time of the accident, plaintiff was taking his 11-year-old son for a school medical check-up in a park building located in Garfield Park on the north side of Washington Boulevard. Plaintiff and his son walked through the park traveling north toward Washington Boulevard. Plaintiff walked a short distance ahead of his son.

Plaintiff testified that as he approached Washington Boulevard he stopped at the south curb at approximately the middle of the crosswalk. He looked to the left (west) and he could see all the way to the intersection of Hamlin and Washington. He observed that the traffic light was red for traffic on Washington Boulevard and that traffic was stopped. He observed no moving vehicles on Washington Boulevard between Hamlin and the crosswalk. Looking to his right, plaintiff could see that the traffic fight was also red for traffic on Washington Boulevard at its intersection with Central Park (3600 West). Plaintiff observed no moving traffic.

Plaintiff further testified that after looking both ways, he stepped off the curb and started to walk across the street in the middle of the crosswalk. When he was half-way across the outer eastbound or curb lane, he looked back over his right shoulder toward his son who was standing on the curb. Plaintiff told his son to come on before the traffic started. Plaintiff then continued to walk while looking back over his shoulder.

After looking back to his son, plaintiff again looked to his left and observed that there still were no eastbound vehicles. He continued to walk across the street. As he reached the white fine separating the two eastbound lanes, he again looked back to see if his son were coming. By then his son had stepped off the curb.

When he was approximately 3 feet into the second or inner eastbound lane, plaintiff looked to his left for the third time. For the first time, plaintiff observed defendant’s vehicle traveling east in the inner lane. The vehicle was 20 to 25 feet away. Plaintiff stopped and “just froze.” The vehicle was too close for him to do anything. “I threw up my hands and froze.”

Plaintiff then testified that he was struck and thrown up onto the hood of the car. He felt himself hit the windshield. At the time he was struck, he was near the middle of the 30-foot crosswalk. When he came to rest after the impact, he was lying in the street at least 15 feet east of the east edge of the crosswalk.

Romel Jamison testified for plaintiff that he and his father came up to the south curb near the middle of the crosswalk. His father looked both ways, stepped off the curb, took about two paces, turned around, and told Romel to come on. Before Romel started to follow, he looked for oncoming vehicles and noticed nothing. By the time plaintiff reached the second lane, Romel was about in the middle of the first lane. At this point, Romel saw defendant’s vehicle about 20 feet west of the crosswalk. He then saw plaintiff throw up his hands prior to being struck by the oncoming vehicle.

At the time of the accident, defendant Lambke worked as a communications consultant for Illinois Bell Telephone Company, and was driving a company-owned Ford Falcon. He was on his way to make a customer call and was driving east on Washington Boulevard in the inside lane closest to the center line.

Lambke testified that his speed was 20 to 25 miles per hour. As he came around the curve going into the straightaway before the crosswalk, he noticed plaintiff and his son approaching the curb of Washington Boulevard. The boy was a little behind and to the west of plaintiff. They were about 10 feet away from the curb. As defendant proceeded eastward, he noticed plaintiff come up to the curb. As defendant continued to approach the crosswalk, he observed plaintiff look to his right and dart into the street in a northeasterly direction and east of the crosswalk. Defendant testified that he sounded his horn, applied his brakes and attempted to swerve to the left. Contact was made with plaintiff and the extreme right-hand portion of the car just as the car came to a stop. The vehicle did not move at all after impact.

Mr. Willard A. Alroth, a consulting traffic engineer, testified as a rebuttal witness for plaintiff. He stated that a vehicle traveling 25 miles per hour moves approximately 37 feet per second; a vehicle traveling 20 miles per hour moves approximately 29 feet per second. Over objection, Alroth testified that the approximate braking distance of a vehicle traveling 25 miles per hour under the conditions extant during the accident would be 25 to 50 feet. At 20 miles per hour, the approximate braking distance would be 17 to 35 feet.

Further testimony indicated that as a result of the accident, plaintiff incurred severe back injuries. At the time of the trial in December, 1972, plaintiff was still under care as an outpatient, and he continued to complain of pain in his back and left leg. He had not been able to work since February, 1972.

OPINION

The first issue raised by defendants on appeal is whether the verdict and the finding of the special interrogatory were against the manifest weight of the evidence. Specifically, defendants allege that plaintiff committed contributory negligence as a matter of law.

Relying on Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, defendants contend that the evidence, when viewed in its aspect most favorable to plaintiff, so overwhelmingly favors defendants that the verdict for plaintiff based on that evidence cannot stand. Defendants base their contention on the fact that plaintiff testified he could see all the way to Hamlin Avenue, 588 feet away, and yet he did not see defendant’s vehicle until he had walked at least 15 feet into the street and the vehicle was only 25 feet away. We disagree.

A situation similar to the case at bar was presented in Moran v. Gatz, 390 Ill. 478, 62 N.E.2d 443. In that case, the plaintiff was crossing the street at a crosswalk and testified that she did not see the defendant’s car before the impact even though she looked both before and after entering the crosswalk in the direction of defendant’s car. A verdict was returned for the plaintiff. The Illinois Supreme Court reversed an adverse ruling of the appellate court and held, at page 486, that:

“a pedestrian’s failure to keep a constant lookout, or to look again after having determined that he can safely cross ahead of approaching traffic, is not contributory negligence as a matter of law but it is a question for a jury whether he was in the exercise of ordinary care for his own safety.”

Testimony showed that Lambke did not see plaintiff until he was 100 feet or less to the west of the crosswalk after coming out of the curve. From this testimony, the jury could plausibly infer that because of the curve in the street, plaintiff, having looked in a westerly direction, did not see defendant’s car. It is logical and plausible, therefore, that plaintiff looked to his left, as he testified, and did not see defendant’s car at the time he stepped into the street, or during the time he was in the outermost lane of traffic.

In light of the fact that the law does not compel a pedestrian to constantly stare in the direction of oncoming trafile, we uphold the jury finding that plaintiff exercised due care and caution for his own safety. Although the issues in this case were seriously controverted, and the case itself was very close on the facts, we cannot reserve the jury finding that defendants were negligent. Lambke had a clear field of vision, could readily see plaintiff and had a duty to yield the right-of-way. We hold that there was ample evidence to support the finding that Lambke was negligent for failing to keep a proper lookout or for failing to yield the right-of-way to plaintiff.

The next issue raised on appeal is whether the trial court erred in giving plaintiff’s issue instruction. Defendants raise two objections to the issue instruction: first, that it places undue emphasis on a disputed question of fact and secondly, that it incorporates disputed questions of fact and thus would tend to cause the jury to assume as a fact one of the hotly disputed issues in the case. Defendants specifically objected to the inclusion in the charge of the phrase “who was then and there a pedestrian crossing Washington Boulevard in a marked crosswalk.” Defendants argue that this instruction placed undue emphasis on plaintiff’s alleged position in the street and caused the jury to assume as a fact one of the most disputed issues in the case, i.e., whether or not plaintiff was in the crosswalk.

The instruction under examination is an issue instruction and is intended to set out plaintiffs claim. Plaintiff had the right to incorporate contested questions of fact into its issue instruction. The issue instruction should rightfully incorporate all matters of plaintiff’s claim supported by the evidence. (Rose v. B. L. Cartage Co., 110 Ill.App.2d 260, 249 N.E.2d 199.) The issue instruction included an aspect of plaintiff’s claim which was supported by the evidence and was therefore properly submitted to the jury. Plaintiffs testimony placed the point of impact in the crosswalk and defendant’s testimony placed the point of impact outside the crosswalk. The jury was instructed on the rights and duties of pedestrians and motorists within and without a marked crosswalk. Based on the verdict, the jury obviously believed the testimony of the plaintiff. This was their right.

Defendants next allege that the trial court erred in allowing plaintiffs expert to state an opinion on braking distances. Defendants argue that the expert testimony constituted reconstruction testimony, which was an inadmissible substitute for available eyewitness testimony. (Plank v. Holman, 46 Ill.2d 465, 264 N.E.2d 12.) We cannot agree.

The witness, Mr. Alroth, testified to two facts, each of which was properly received in evidence. First he testified that a car traveling at defendant’s stated speed of 25 rn.p.h. would travel approximately 37% feet per second. Next, he stated that the minimum braking distance of an automobile traveling 20 to 25 rn.p.h. was 25 feet. This testimony was relevant and properly admitted to assist the jury in determining factual issues. The trial judge is allowed a wide area of discretion in permitting expert testimony which would aid triers of fact in their understanding of the issues even though they might have a general knowledge of the subject matter. (Stanley v. Board of Education, 9 Ill.App.3d 963, 293 N.E.2d 417.) We hold that the trial court did not abuse its discretion and properly admitted testimony of plaintiffs expert witness.

Defendants next argue that the trial court committed reversible error in its rulings on objections to the medical testimony. Specifically, defendants objected to the hypothetical question posed to Dr. Reisman, who testified prior to any testimony as to the occurrence facts, or testimony of the initial treating physician. Defendants argue that the hypothetical question was based on facts not in evidence and that the question misstated facts concerning plaintiff’s medical case. The trial court reserved its ruling on the defendants’ objection and did not overrule the objection until all of the testimony was completed. Defendants also objected to the testimony of Dr. Moczynski on the ground that the hypothetical question put to the doctor contained facts not yet in evidence. Defendants also objected to the testimony of Dr. Malayter and Dr. Robert C. Busch, although when those doctors were called the plaintiff had testified as to the occurrence. The record is not clear, but assuming that the trial judge reserved his ruling on objections to all medical hypothetical questions, he did not overrule the objections until all of the testimony was completed. It therefore must be assumed that the court was satisfied that in considering all of the evidence the hypothetical questions as put to the several doctors and the answers thereto were proper.

We recognize that permitting an expert witness to answer hypothetical questions based upon facts which have not been previously adduced in evidence, regardless of whether there is a guarantee that such facts will be subsequently adduced in evidence, is not desirable and is strongly to be discouraged. Whether or not such practice will be permitted in a particular situation is within the sound discretion of the court. (Gibson v. Healy Bros., 109 Ill.App.2d 342, 248 N.E.2d 771.) By reserving its ruling on the objection to the hypothetical questions, and overruling the objections only after all of the evidence was in, the trial court obviously was satisfied that the manner in which the evidence was presented was not prejudicial to the defendant, and we accordingly hold that its failure to sustain defendants’ objection was not an abuse of discretion and did not constitute error.

Five doctors testified as to the plaintiff’s condition and rendered their opinion as to causal connection. All of the doctors (except Dr. Busch) at one time or another were treating doctors to plaintiff and had personally taken a history. On the record, we regard the evidence of causal connection overwhelmingly in favor of the plaintiff. Furthermore, the jury was instructed on the requirement of causal connection between the injury and the condition of ill-being of the plaintiff at the time of trial.

Finally, defendants argue that during closing argument plaintiff’s counsel used “inflammatory, untrue, and misleading statements” which deprived defendants of a fair trial. We disagree.

Plaintiff’s closing argument consisted of a fair recitation of the evidence and reasonable assumptions to be drawn therefrom. (Walsh v. Chicago Railways Co., 303 Ill. 339, 135 N.E. 709.) Defendants at no time raised any objection during plaintiff’s closing argument and any error that may be assigned thereto was accordingly waived.

For the reasons stated herein, we believe that the issues in this case were primarily questions of fact and that the trial court properly submitted those questions to the jury under appropriate instructions. The judgment of the circuit court of Cook County is supported by the record and is therefore affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


text:
    Robert Scherer, Jr., a Minor, by Robert Scherer, his Father and Next Friend, Plaintiff-Appellee, v. Ravenswood Hospital Medical Center, Defendant-Appellant.
    (No. 59223;
    First District (5th Division)
    July 26, 1974.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, John D. Cassidy, and Stanley J. Davidson, of counsel), for appellant.
    Baskin, Server, Berke & Rosenbloom, of Chicago (Alan I. Boyer, of counsel), for appellee.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Pursuant to Supreme Court Rule 308, defendant was granted leave to appeal from an interlocutory order denying its motion to dismiss count I of plaintiff’s amended complaint. (Ill. Rev. Stat. 1973, ch. 110A, par. 308.) The question of law identified by the judge of the chancery division of the circuit court is “whether the Probate Courts approval of a minor’s settlement is a bar to the minor bringing a subsequent suit based on the same incident when the minor alleges that there was a mutual mistake of fact as to the nature of the damages sustained by the minor as a result of such incident.”

The question arose under the following circumstances: On October 16, 1961, when 2 months old, plaintiff was allegedly injured while a patient in defendant hospital. Plaintiffs father, as duly appointed guardian, petitioned the probate court for approval of a settlement reached by the parties. The probate court order, entered October 18, 1962, recited that from the petition it appeared that plaintiff had suffered a linear fracture of the head. The court ordered that the claim against defendant be settled for $1,500 and that the guardian execute and deliver to defendant a full and complete written release and discharge from all liability on account of injuries to the minor.

On February 28, 1972, plaintiff filed suit at law against defendant seeking damages for injuries alleged to have resulted from the incident of October 16, 1961. There was no mention in the complaint of the October 18, 1962, court-approved settlement and release. Defendant’s motion to dismiss the complaint on the basis of the prior order of settlement and release was denied.

Thereafter, on his own motion, plaintiff filed a two-count amended complaint. In count I plaintiff acknowledged that his claim had been settled and released, but asked that the release and court order approving the settlement be vacated, set aside, and adjudged void and of no effect. In support of this request plaintiff alleged that the release and court approval were procured as a result of a mutual mistake of fact, in that the parties settled for $1,500 in the mistaken belief that plaintiff had been completely cured of his injuries. In both original and amended complaints, plaintiff alleges he suffers from brain damage as a result of defendant’s conduct in 1961, which alleged damage could not be detected or evaluated in 1962 by virtue of the infancy of the plaintiff. Had both parties known of the brain injury now alleged, the settlement would not have been made. Inasmuch as the relief sought in count I of the amended complaint sounds in equity, the cause was transferred to the chancery division of the court.

Defendant filed a motion to dismiss count I on the basis that it failed to set forth any equitable grounds upon which the release approved by the probate court could be set aside. Defendant appeals from the denial of this motion. Ill. Rev. Stat. 1973, ch. 110A, par. 308.

OPINION

Defendant contends that in approving a minor’s settlement the court makes a determination that the settlement is reasonable. Thus, it argues, the order had the force of a judgment and may be vacated only upon a showing of actual or constructive fraud, lack of jurisdiction, or improper legal representation of the minor. Plaintiff maintains that no such determination of reasonableness is made. He argues that the order merely authorizes the guardian to execute a release on behalf of the minor, who is incompetent to do so himself. Under plaintiff’s theory, the court-approved release has the force of a release between two adults and may not be rescinded on grounds of infancy. But as is the case with releases between two adults, a release executed on behalf of a minor, plaintiff claims, may be set aside upon a proper showing of mutual mistake of fact.

Although the court is not required to approve every settlement that a minor and an alleged tortfeasor might reach, the proceeding in which approval is sought is essentially the submission of a predetermined agreement to the court. The court may lend its wisdom and experience to the minor in an effort to prevent overreaching by the tortfeasor. But its participation cannot realistically lead us to consider the proceeding an adjudication, since the alleged tortfeasor is not a party to the proceeding, no issues of fact are controverted, and the court neither makes findings nor enters judgment. In the case at bar, the order merely recites the matters that “appear” to the court (apparently from the petition of the guardian of plaintiff’s estate) and orders the guardian to perform specified acts, including the execution of a written release.

Under the release, then, the minor and the alleged tortfeasor should attain the same legal position as two adults who have settled an un-liquidated claim without resort to litigation. We find no persuasive reason why a minor, whose claims cannot satisfactorily be compromised and released except through court approval, should be more rigorously denied relief than an adult from mutual mistake, simply because a court was laboring under the same mistake. Annot., 8 A.L.R.2d 460, 462 (1949).

Although we have found no Illinois cases that explicitly resolve this issue, our conclusion is supported by the fact that the judicial policy applicable to the vacating of a release between two adults was applied to a release executed by the guardian of a minor pursuant to a court order. Hudson v. Thies, 35 Ill.App.2d 189, 182 N.E.2d 760, aff'd, 27 Ill.2d 548, 190 N.E.2d 343.

Illinois follows the majority of jurisdictions in allowing a court to set aside a release executed by a tort victim when the facts indicate that the parties were mutually mistaken as to the extent of the releasor’s injuries. (Welsh v. Centa, 75 Ill.App.2d 305, 221 N.E.2d 106.) In cases involving releases between adults our courts have not drawn the distinction urged by defendant, i.e., that a release may be set aside for mutual mistake of fact only when the releasor sustained separate and distinct injuries that were not known or considered at the time settlement was approved, and may not be in validated when known injuries resulted in unknown and unexpected consequences. (See, e.g., Clancy v. Pacenti, 15 Ill.App.2d 171, 145 N.E.2d 802, 71 A.L.R.2d 77; Ruggles v. Selby, 25 Ill.App.2d 1, 165 N.E.2d 733; Smith v. Broscheid, 46 Ill.App.2d 117, 196 N.E.2d 380.) Rather, they have treated the question whether there was a mutual mistake of fact as a question of fact for the judge in chancery, who is able to be flexible in exercising his discretion so as to avoid an unconscionable result. (Reede v. Treat, 62 Ill.App.2d 120, 210 N.E.2d 833.) We see no reason why the same principles should not be applied when a minor is a party to the release.

We appreciate the concern of defendant and potential future defendants that a release may or may not be considered final when once approved by the court. We hold only, however, that the probate court’s approval of a minor settlement is not a bar to a subsequent suit by a minor based on the same incident when the minor alleges there was a mutual mistake of fact as to the nature of the damages sustained by the minor as a result of such incident. The mutual mistake of fact must be proved by clear and convincing evidence by the minor. (Welsh v. Centa, 75 Ill.App.2d 305, 221 N.E.2d 106.) Accordingly, we hold that the trial court properly denied defendant’s motion to dismiss and the cause is remanded to the trial court for an evidentiary hearing on the issue of a mutual mistake of fact.

Affirmed and remanded.

SULLIVAN, P. J., and LORENZ, J., concur.


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    Angelina Raney, Plaintiff-Appellee, v. Patrick Raney, Defendant-Appellant.
    (No. 59742;
    First District (5th Division)
    July 26, 1974.
    Wisch and Dyer, of Chicago (Dinah B. Dyer, of counsel), for appellant.
    Daniel Nagle, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order requiring the payment of $2,858.00 to plaintiff following a hearing on a post-divorce decree petition filed by plaintiff, in which she sought payments from defendant pursuant to the provisions of a property settlement agreement incorporated into the 1969 divorce decree.

The plaintiff has not seen fit to appear as appellee or to file a brief. Under such circumstances a reviewing court may reverse without considering the case in detail or it may consider and determine the case on its merits. (Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264, 275, 254 N.E.2d 814.) We chose the latter.

Initially, we note that paragraph 7 of the decree placed the following responsibility upon defendant:

“7. During the course of the parties marriage, the Husband incurred several debts and obligations which resulted in liens being placed on the real estate commonly known as 14716 Kenwood, Dolton, Illinois. That the Husband shall pay all of these claims and hens, including an FHA mortgage placed on said real estate. The Wife hereby agrees to pay, and keep current, the first mortgage made by the parties at the time the property was purchased by them. The Husband hereby agrees to pay all other claims or hens against the property, with the exception of current real estate taxes, which shall be paid by the Wife. The Husbánd shall also pay to the Wife the sum of $155.88 which sum represents three (3) payments of $51.96 each, which the Wife advanced on the FHA mortgage.”

For our purposes, the relevant portions of plaintiffs petition asserted that because defendant failed to pay certain debts and obligations mentioned in paragraph 7, she was obhged to do so upon the sale of the property in 1973. The petition further sought a rule requiring defendant to show cause why he should not be held in contempt for failure to comply with the terms of the decree. By way of an answer, defendant contended that the property was originally purchased by them in 1957 in joint tenancy; that in 1967 the property was deeded in trust to plaintiff's mother, with plaintiff being the sole beneficiary; that the intention of the parties was to retain ownership in joint tenancy; that, under these circumstances, a resulting trust was created in his favor, entitling him to one-half the proceeds received from the sale of the property. In her reply to defendant’s answer, plaintiff admitted only that the property was conveyed to her mother, with plaintiff being the sole beneficiary. Moreover, the reply asserted that since the date of the conveyance, plaintiff has made every mortgage payment on the property and that prior to the filing of his answer to her petition, defendant had made no prior claim to any interest in the property.

A hearing was held on the petition, after which the court entered an order directing defendant to pay to plaintiff $2,858.00 as the balance due her because of his failure to pay Hens and claims including the FHA mortgage on the property. Defendant has appealed from this order, contending he did not receive a fuH and impartial hearing as to (1) the question of whether a resulting trust was created in his favor; and (2) the amounts of the Hen and encumbrance payments allegedly made by plaintiff.

OPINION

I.

Defendant’s contention concerning the creation of a resulting trust, raised for the first time in his pleading in the trial court, is not one that can be raised in a post-divorce petition proceeding. It is our belief that the divorce decree entered in 1969 operates as a bar to such reHef here. If defendant felt that a resulting trust had inured to his benefit, he should have raised that contention at the time of the parties’ divorce, since all questions concerning the disposition of the parties’ property were resolved there. We think that Dryz v. Bol, 19 Ill.App.2d 406, 410, 153 N.E.2d 859, is dispositive of the issue here. There, the plaintiff husband raised a substantially similar argument and the defendant, in response thereto, aUeged that (1) plaintiff’s claim was barred by a prior divorce decree; (2) the agreement entered into between the parties concerning their respective claims against each other’s property operated as a stipulation in the divorce case; and (3) plaintiff was estopped from asserting the claim by his failure to assert it prior to the execution of the stipulation and during the pendency of the divorce case. The court, in response to defendant’s arguments, concluded:

“A careful reading of the pleadings, stipulation, findings and decree in the divorce case convinces us that the parties intended to bring and brought before the court the question of the disposition of all property in which they both had a possible claim or interest. We conclude that the court in the divorce case decided the matter at issue in the instant case. The failure of the court in that case to specifically mention the question at issue in the instant case does not impair the appHcation of the doctrine of estoppel by decree. City of Elmhurst v. Kegerreis, 392 Ill. 195, 208.” 19 Ill.App. 2d 406, 410.

We beheve that the property settlement agreement entered into between the parties here and used as the basis for the findings and decree of divorce determined the rights of the parties with respect to the property contained therein. The court in Dryz, in this regard, went on to say:

“The only reasonable construction of the stipulation in the divorce case, which formed the basis for the finding and decree relative to property rights and the waiver of alimony, is that it enumerated all the property to which both parties had a possible claim or interest, and therefore necessarily implied that the plaintiff herein had no claim or interest to the realty in question since such property was not enumerated in the stipulation.” (19 Ill.App.2d 406, 410-411.)

Here, paragraph 7 of the decree specifically refers to the property in question and, under the reasoning of Dryz, defendant cannot now assert rights to that property which should properly have been raised prior to the original decree.

II.

Defendant also contends that he was deprived of a fair and impartial hearing on the question of the lien and encumbrance payments allegedly made by plaintiff, and for which he was held to be responsible. Our examination of the record reveals that no specific dollar amount of the alleged payments was set forth in plaintiff’s petition or in her reply. Furthermore, the report of proceedings fail to reveal any reference to the amount ultimately found owing by defendant in the trial court’s order, Neither does the record disclose that any discussions were held in the hearing on plaintiffs petition relating to an amount paid by plaintiff nor, as far as we are able to ascertain, was there any proof of payment which would have allowed defendant to respond to plaintiff’s allegations in this regard. In a case substantially similar in its absence of any formal hearing regarding a post-divorce decree petition and in the absence of a brief filed by plaintiff, the court reversed a finding of the trial court and remanded with instructions to conduct a full hearing with respect to all matters involved in the petitions. Murphy v. Murphy, 19 Ill.App.3d 899, 312 N.E.2d 314.

We feel constrained to follow the course taken by the court in Murphy, and accordingly, we reverse and remand with directions to conduct a hearing on the matters alleged in plaintiff’s petition.

Reversed and remanded with directions.

BARRETT and DRUCKER, JJ., concur.


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    Louis S. Cole et al., Plaintiffs-Appellants, v. Helen F. McGillicuddy et al., Defendants-Appellees.
    (No. 60221;
    First District (5th Division)
    July 26, 1974.
    Arthur Rosenblum and Harry G. Fins, both of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner and Michael Kreloff, Assistant States Attorneys, of counsel), for appellees.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

This appeal arises from an order overruling objections to the nominar tion papers of Charles Durham, a candidate for nomination to the office of judge of the circuit court of Cook County, Illinois.

On December 10, 1973, Judge Sigmund J. Stefanowicz of Cook County sent a letter of resignation to Chief Judge John S. Boyle of the circuit court of Cook County. On December 11, 1973, Judge Boyle forwarded a copy of the resignation letter to the Administrative Office of the Illinois Courts. Also, on December 11, 1973, Judge Stefanowicz sent a letter to the Supreme Court of Illinois, stating that he wished to resign as a judge of the circuit court “effective December 16, 1973.” This letter was received by Chief Justice Robert C. Underwood of the Illinois Supreme Court and acknowledged on December 13, 1973.

On December 14, 1973, Charles Durham, a candidate for nomination in the March 19, 1974, Democratic Party primary election to fill the vacancy caused by Judge Stefanowicz’s retirement, filed nomination papers with the State Board of Elections. Included in these papers were a statement of candidacy, executed on December 12, 1973, a non-communist affidavit, executed on December 12, 1973, and 124 pages of petitions containing sufficient names for nomination on sheets executed on December 10, 11, 12 and 13.

Subsequently, pursuant to election code procedures, plaintiffs, legal voters of Cook County, filed objections to candidate Durham’s nomination papers. Specifically, plaintiffs contended that candidate Durham circulated, executed and filed Ins nomination papers prior to the resignation of Judge Stefanowicz. Plaintiffs argued that circulating, executing and filing nomination papers for an office which was not at that time vacant nullified the filing of the nomination papers.

Pursuant to the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 10 — 9 (3)), objections to the nomination papers were heard by the County Officers Electoral Board of Cook County. Plaintiffs’ objections were overruled on the basis that they were insufficient in law and in fact.

In accordance with section 10 — 10.1 of the Illinois Election Code (Ill. Rev. Stat. 1971, ch. 46, par. 10 — 10.1), plaintiffs sought judicial review of the County Electoral Board’s decision in the circuit court of Cook County.

The circuit court sustained the decision of the County Officers Electoral Board, and this appeal followed.

OPINION

On appeal, plaintiffs argue that the nominating petitions, statement of candidacy, and oath executed on behalf of Charles J. Durham were nullities because they were executed and filed prior to the existence of a vacancy in the Stefanowicz judgeship. We cannot accept this contention.

The first issue raised is whether the Stefanowicz vacancy existed prior to the “effective date” of Judge Stefanowicz’s resignation (December 16, 1973). Illinois law is clear on this point. A resignation once tendered is final and becomes effective when it is received by, or filed with the officer authorized by law to fill the vacancy. If a resignation were not final until the effective date, there would be no certainty that a vacancy in fact existed. (Allen v. Powell, 42 Ill.2d 66, 244 N.E.2d 596.) Public policy clearly requires that there be certainty as to who are and who are not public officers. (People ex rel. Adamowski v. Kerner, 19 Ill.2d 506, 167 N.E.2d 555.) For tins reason we hold that a resignation which becomes effective at a later date creates a vacancy in that office when received. In the instant case, it appears that the Stefanowicz resignation was sent to Chief Justice Underwood on December 11, 1973. The resignation was received somewhere between December 11, 1973, and December 13, 1973. Since the nomination papers of Charles Durham were filed on December 14, 1973, they were properly filed after notice of resignation was received by the Illinois Supreme Court, and after the Stefanowicz vacancy became effective.

In regard to the nominating petitions circulated by Durham prior to receipt by the Illinois Supreme Corut of the Stefanowicz resignation, we hold that the petitions were valid. Appellants have cited no authority to support their contention that since the office was not vacant until a certain date, nominating petitions may not be circulated until after that date has passed. Nowhere in the statutes is a candidate prohibited from circulating nominating petitions until the office sought is actually vacated.

We hold that the requirements of nomination papers for judicial office as set out in the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 7 — 10) were complied with by candidate Durham. He properly described the office sought, specifying the particular vacancy for which he was a candidate. The law requires nothing more than compliance with the statute.

For the reasons stated above, we affirm the order of the circuit court of Cook County which affirmed the overruling of plaintiffs’ objections by the Electorial Board.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.