text:
    Bernice Levy, Plaintiff-Appellant, v. Harvey Burton Levy, Defendant-Appellee.
    Gen. No. 53,510.
    First District, Fourth Division.
    December 3, 1969.

      Harold A. Liebenson and Milroy R. Blowitz, of Chicago (Harold A. Liebenson and Milroy R. Blowitz, of counsel), for appellant.
    Alfred M. Walter, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

In a post-divorce decree proceeding the trial court ordered that the custody of the 12-year-old son of the parties be changed from plaintiff to defendant. Plaintiff, who is the mother, appeals from that order. Plaintiff argues:

(1) that the evidence did not establish a substantial change of circumstances affecting the welfare of the child to justify changing custody to defendant;
(2) that neither defendant’s remarriage nor the child’s preferences were sufficient to cause a change of custody;
(3) that the court erred in the admission of certain evidence and
(4) that defendant failed to sustain his burden of of proof.

The parties were married on April 5, 1951, and their son was born on September 4, 1955. On March 8, 1966, the parties were divorced and the decree granted plaintiff custody of their son. Prior to the parties’ divorce, their son demonstrated severe emotional behavioral problems. Plaintiff went to live in Camden, New Jersey, and was granted leave to have her son live there with her. The court provided defendant have the right to visit and telephone his son and that the son visit defendant in Chicago during the summer months and vacation periods.

In the summer of 1968, the son visited defendant pursuant to the provisions of the decree of divorce, but the son did not return to plaintiff’s custody.

Plaintiff then filed a petition demanding the return of the child and for a modification of the decree to provide that the child remain in school for the summer. Defendant filed an answer and a ' counterpetition to modify decretal provisions relative to custody by now awarding custody of their child to defendant.

EVIDENCE

BERNICE LEVY, plaintiff, testified:

She is a resident of Camden, New Jersey, and prior to the divorce the child lived with her, and was attending a school for emotionally disturbed children at the time the decree of divorce was entered. The child had been treated as a weekly outpatient at the Community Child Guidance Clinic of Camden, New Jersey for about 1% years before the divorce of the parties. Upon recommendation of the Clinic the child was enrolled in the Southern Home for Children, because he did not respond to plaintiff. The child was disobedient, started fires, hurt animals and destroyed his own and others’ property.

Plaintiff visited the child twice a week. He would come home for Sundays and spend every other weekend with plaintiff at home.

In the spring the child returned from Chicago where he had been visiting defendant and plaintiff testified that the child seemed very despondent and unhappy telling plaintiff “Dad is going to have another baby” and “Oh, my father can keep his babies.” Plaintiff further testified the child was upset over the fact that defendant was married and had a family and that he was not the only child anymore. She believed that this contributed to the child receiving low grades in school.

When the child is home from school plaintiff is always with him. After the divorce plaintiff purchased her own home and the child had his own room, and has a dog and a cat as pets.

At the present time plaintiff has no major problems with the child, but the child is unhappy, torn between plaintiff and defendant. He hates his school, but the Clinic people advised her that once the child commences to like the place then the child must be institutionalized. The school advised plaintiff that if the child does not return he will lose his place, because the school has a long waiting list.

On cross-examination plaintiff testified:

She is a waitress supplementing her income doing a musical novelty act which requires some travelling. The nightclub acts are on weekends and not more than 60 or 100 miles from home, allowing her to return. When she has club dates on weekends, when the child is home, plaintiff engages the services of a babysitter who has known the child since he was 5 years old. The babysitter handles the child fairly well.

The child is now obedient enough and regardless of any of the normal routines, he is able to accept them and the child has improved.

The child has indicated he would prefer to live with defendant and told the plaintiff that he would live with her if she would remove him from the school. The preference for defendant is based upon the fact the child has a good time when staying with the defendant because he is not living the day-by-day life he was in New Jersey but is in Chicago for a good time. She further testified that the defendant has always been a “good time Charley.”

She never indicated a desire to be separated from her son and resisted placing the child into the Home, succumbing only because she was advised that it would be difficult to treat the child as an outpatient. The child has been enrolled at the Southern Home for Children for the past two years and is responding. Twice a week she has individual conversations with the caseworker. She stated that the child is aggravated with her because she keeps him at the Home and he is afraid of the fact that they might hit upon the truth.

Defendant has written letters to the school, but has never called them. He has visited the child at school and constantly receives reports regarding him.

JACOB H. MALTZ, called as a witness on behalf of plaintiff, testified:

He is a psychiatrist, licensed in the State of Illinois, and has been practicing for 20 years. He is board certified in psychiatry for 12 years, an examiner for the psychiatric creditation board and was Superintendent of the Chicago State Hospital. Pursuant to his duties at Chicago State he had any number of emotionally disturbed children under his care. At the present time he is Medical Director of Ridgeway Hospital, which is a private psychiatric facility which deals primarily with emotionally disturbed children, adolescents and emotionally disturbed adults. He had overall responsibility for the supervision and direction of the treatment program.

He saw plaintiff in his office and discussed the status of the parties’ child with her. The witness telephoned the Southern Home for Children and talked to the child’s psychiatric social worker. Plaintiff’s Exhibit No. 1, a letter from the psychiatric social worker at Southern Home, which plaintiff delivered to the witness was admitted into evidence over defendant’s objection.

The witness also produced a letter he received from the psychiatrist who was attending the child at the Southern Home for Children. This was admitted into evidence as plaintiff’s Exhibit No. 2 over defendant’s objection.

The witness then testified that based upon his conversation with the psychiatric social worker, plaintiff, and plaintiff’s Exhibits Nos. 1 and 2, he formed an opinion as to the child’s condition and what should be done for his future to help him. It was his opinion that the child has been making satisfactory progress at the Southern Home and is being handled on a daily basis with individual psychotherapy and that the prognosis is favorable if the child is permitted to continue in this setting. This witness has never talked to the child.

Over defendant’s objection, Plaintiff’s Exhibit No. 3, a progress report from the Philadelphia Public elementary school system, was admitted into evidence.

The witness testified that the child’s grades for the first semester were excellent and good for most part, but after his visit to Chicago the grades declined and there were many unsatisfactory grades. The witness expressed another opinion that from glancing at the reports and the school records it was his opinion that the child should remain with plaintiff and in the Southern Home for Children.

On cross-examination, Dr. Maltz testified as follows:

His opinion is based upon the exhibits, conversations with plaintiff and the psychiatric social worker. Plaintiff’s Exhibit No. 1 leads the witness to believe that the child was admitted to the Southern Home with the present symptoms of poor social and academic adjustment in school.

The witness assumed that the grades the child received for the school year ending in 1968 were better than the grades for his first year. The exhibits indicate to the witness that the child is making satisfactory progress during the period of treatment. The witness then quoted from the exhibits wherein it was stated that the child had made sizable gains in adjusting to his family situation. The exhibits revealed he was receiving milieu therapy, meaning environmental treatment. Such therapy is designed to enable him to function as an individual in an emotionally healthier way. While its goal is to enable him to adjust to the family structure, it does not necessarily enable him to live normally in such a family structure. The witness further related that from his reading of the Exhibit No. 2, the psychiatrist’s report, the child’s release from the Home is dependent upon his responsiveness to plaintiff’s discipline and direction. The exhibit further reflected that the child’s response lacked consistency.

DR. JACK ARBIT, called as a witness on behalf of defendant, testified as follows:

He is not an M.D., but a clinical psychologist with a doctorate in psychology and is registered to practice in the State of Illinois. He received his doctorate 13 years ago and has received his Bachelors, Masters and Graduate degrees from the University of Illinois. He had a Post Doctorate Fellowship with the Veterans Administration and taught at the Illinois Institute of Technology and Northwestern University, where he is on the full staff of the University Medical School. As a director of clinical psychology at Northwestern University he has had occasion to examine and evaluate the mental condition of emotionally disturbed children, and sees an average of 3 or 4 a week.

At the request of Dr. Israel Zivin, a psychiatrist and neurologist, the witness examined the child on July 5, 1967. He conducted tests and found that the child functioned intellectually in the average range, though intellectually he was not functioning at the optimal capacity in terms of actual achievements, but was functioning significantly below this. The witness attributed this to the presence of the child’s marked anxiety.

He believed the child should be in a situation where the child could have a family with which to interact and identify and that the anxiety was perpetuated by the presence of the effects of being unsettled. The placement of the child in an institutional school program for emotionally disturbed children did not seem to be appropriate.

The witness again saw the child almost a year later on July 17, 1968, two days before the witness testified in these proceedings. He found the child’s condition had deteriorated and that he had moved from a youngster functioning in the average range to one functioning in the dull-normal level. Scholastically, while he was one to two years behind, he was now almost three years behind what one would expect on the basis of such abilities as arithmetic.

The witness found the child had suffered an intellectual and emotional regression during the past year. The child was much more depressed, agitated and distraught internally.

It was the opinion of this witness that the child should be in a home where there is a father and mother who can provide what he needs by way of some stability in a family. The child would also need some definite form of outpatient treatment which the witness believed to be better than institutional treatment.

On cross-examination, Dr. Arbit, testified:

He diagnoses and evaluates emotionally disturbed children who are sent to him by psychiatrists, neurologists and orthopedics. If any patient needed some form of somatic or physical treatment like electric shock, pills or insulin, he would refer them to a psychiatrist.

The Psychiatric Clinic of Northwestern University is headed by a psychiatrist. The witness is the Director of the Clinical Psychology Services.

The court inquired, “I do not believe I understood the results of the personality test in 1967,” and the witness responded that the child produced a lot of material that is associated with the very intense feelings of anxiety and symptomatic of a very fearful, very agitated, very distraught youngster. There was some evidence of post depressive quality at that time, but this was less marked in the fact that this seemed to be a very anxious youngster. He was not psychotic, not autistic or regressive; he had problems.

In 1968 there was a precise pattern, only much more severe. It was the same pattern of very severe anxiety with marked convictions. He does not determine the individuals involved or motivating or contributing factors.

RALPH LEVY, the child of the parties was called as a witness on behalf of defendant and testified:

He recalled a conversation in chambers with the judge and both counsel. He was not happy in the Southern Home for Children because he lacked a family at the Home. If he is not at the Home he does not want to stay at his mother’s home because he has no family there, no sisters like he has at defendant’s home. He likes his sisters and denied that he told his mother he was angry because his father remarried.

He had gone out to dinner with his mother a few days before and they had a nice evening, but his mother told him that if he lived in Chicago his mother would never see him again, and he would have to give up his pet dog and trains. The witness said he felt that his mother loved him, but he still desires to live with his father even though the witness will have to take responsibilities and go to a doctor or psychologist for treatment in addition to going to school, but the witness is willing to do this.

On cross-examination the child testified:

While no one told him what to say, he had discussed his testimony with both his mother and father. He had certain responsibilities, among them listening to his parents and watching over his sisters. The food at the Home was not the greatest. He would see his mother once a week and on weekends and every other week he would go home. He does not want to stay there because it’s not a family and he lacks a father there. He feels he belongs with his family and sisters. The witness said that he has discussed with his mother the possibility of her marrying again, but she told the witness that she cannot remarry again because of the witness and can only remarry again when the witness is out of the Home. He likes his father’s present wife who treats him well, but does not always mind her. She has to yell at him and tell him what to do and not to do.

HARVEY BURTON LEVY, defendant, testified as follows:

He is the father of the child and is presently married to Leslie Levy. They have two young daughters, one 15 months old and the other one month of age. The child has visited and gets along very well with the family. Defendant and his wife can handle the child coming to live with them. The child gets along very well with the two daughters.

After Dr. Arbit’s first examination and evaluation of the child the witness was advised that the child needed a permanent family structure, but notwithstanding this, the witness allowed the child to return to the Home because the witness hoped the child would have a marked improvement with the therapy he received at the Home. The witness related that he did not intend to keep the child when he came for a visit, in fact, he had purchased a round trip ticket for him. However, when it came time to return, the child became emotional and upset and did not want to return. The witness then sought the advice of legal counsel and the services of Dr. Arbit were retained again.

The witness and the child attend religious services together.

The witness is a musician since 1943 and plays in the Red Garter, a nationally franchised chain of banjo band nightclubs.

Introduced into evidence at this time were three letters written by the child to the defendant and his wife.

On cross-examination defendant testified:

He is of the Jewish faith and provided for the child’s religious education. The last time he attended a Temple was on Yom Kippur, and celebrated Chanukah with the child participating at their home.

His gross salary is $175 a week, and take home salary is $151. They occupy a two-bedroom apartment. The child shares a bedroom with the 15-month-old daughter and each has his own bed. Arrangements have been made for a major medical policy which covers the child’s medical expenses.

On redirect defendant testified:

He is paying the medical bills for the child’s therapy.

In response to the court’s inquiry at to whether defendant feels he is in a position to offer the child the home he needs at the present time, defendant responded that he is in a great position to offer the child all the intellectual stimulation and emotional security that the child needs. The court inquired of defendant if the child had exhibited any problems for defendant and his wife that they could not cope with. Defendant testified that there had been no problems other than those normally attributable to a 12-year-old boy. The witness agreed with the court’s observation that the living arrangements as they are presently are not ideal, but defendant needs more room, which defendant said he is seeking.

The court also inquired as to defendant’s opinion as to the wisdom of removing the child from the Home and changing custody from plaintiff to defendant. Defendant answered that he believed the foregoing would be to the best interest of the child and promised the court that the defendant would never disparage plaintiff, but maximize her virtues which are many and minimize her defects in personality which have been a cause or a contributory cause to some of the child’s maladjustments. The child will have a good Jewish home.

EVELYN LESLIE LEVY, called as a witness on behalf of defendant, testified as follows:

She is the wife of defendant and the child of the parties has visited their home 5 to 6 times since the witness married defendant. She has had no discipline problems with the child. Prior to her marriage she was employed as a medical secretary and technician. She has found the child to be helpful and very good and has taken him to visit her parents who live at a private lake in Indiana. She comes from a very large family and when she visited them with the child, he has always been well behaved and has not exhibited any emotional disturbances during any visit. She is prepared to offer the child a home and assist defendant in the sacrifice that might be necessary for outpatient treatment, and she has discussed with defendant the deprivation of luxury to accomplish this.

On cross-examination the witness testified:

She is of the Protestant faith and regularly attends church and defendant is a very religious man. The child would be raised in the Jewish faith as are the two children of the witness and defendant. She and defendant are financially able to properly care for the child.

The court proceeded to propound inquiries of the witness and she responded that she found no special problems attendant with having the child live with them.

The witness is aware of the child’s problems in the past and how they were manifested, but she related that they are not out of her control and that she never really had a problem with the child. She found him to be good and very responsible and that she has a good rapport with him. If the court permits the child to live with the witness and defendant, she is aware of all the attendant circumstances and can treat the child and afford him the same love, respect, care and affection as she gives her own children. The witness further testified that the child is a boy and wants a lot of love and it’s very easy to give.

OPINION

The order appealed from specifically finds:

. . That, notwithstanding some possible initial improvement in the emotional problems of the said minor child immediately after his placement in the Home he has shown a marked regression during the past twelve months, and it is for the best interests and welfare of said child that he be removed from the said Home and provided with an environment where he can associate and identify himself with a stable family structure, establish permanent family roots, and receive outpatient treatment, if necessary. ...”

The parties are in agreement that subsequent to a divorce decree, custody of a child of the parties is subject to the order of the court and may be changed from time to time as the child’s best interest and welfare demand. Nye v. Nye, 411 Ill 408, 105 NE2d 300 (1952).

Plaintiff argues that there is no substantial change of circumstances, and contends that “the circumstances are the same as when the divorce decree was entered”; that is, that the child was in need of medical treatment then and still requires therapy.

The trial court was confronted with the issue of whether the child’s progress at the Home showed promise or whether the promise was lacking and an actual regression was taking place. If the court determined that a regression had occurred the issue then became whether a change in custody would be in the best interests of the child.

We find that defendant sustained his burden of proof and that the trial court properly exercised its discretion in making a determination that the child would be afforded more promise to regain his health if custody were changed to defendant who could afford a stable family structure, permanent family roots and outpatient treatment, if necessary, whereas the continuation of the status quo revealed not only a lack of substantial recovery, but an actual regression touching directly upon the best interest and welfare of their son.

It is apparent from the record that both parties are entirely fit and proper persons to have custody of their son, but that “[t]he guiding star is and must be, at all times, the best interest of the child.” Nye, supra, at page 415.

Although the trial court also made a finding that defendant had remarried and the child expressed a preference to reside with defendant, the court did not order the change of custody solely upon those circumstances.

Plaintiff in support of her argument that the remarriage of defendant and preference of the child is insufficient to justify a change of custody, relies upon Hirth v. Hirth, 59 Ill App2d 240, 207 NE2d 114, 116 (1965) and Stickler v. Stickler, 57 Ill App2d 286, 206 NE2d 720 (1965).

However, in Hirth, supra, the remarriage of defendant in that case was the sole circumstance relied upon to effect and justify a change of custody and the evidence failed to establish that plaintiff had become less fit to have custody or that the welfare of the children required a change.

In Stickler, supra, the court said, page 290:

“We do not mean to say that a child’s preference may not properly be a factor to be considered by the court, but we do mean to say that, when custody has once been awarded, it may not properly be changed on that ground alone.”

In the case at bar the record amply reflects that the trial court did not find the substantial changes in circumstances effecting the best interests and welfare of the child to have been defendant’s remarriage or the child’s preference to live with defendant, although the child’s preference is a factor which could have been considered by the court.

Plaintiff also contends that the trial court violated the constitutional guarantee of due process of law because the trial court based its findings in part on a private interview with the child.

The record reveals that the court interviewed the child in chambers in the presence of both counsel and no objection was advanced by either party. At the termination of the interview the court took the bench and in open court, prior to commencing the hearing said:

The Court: “Let the record reflect that prior to the commencement of this hearing there has been a conference in chambers with both counsel outside the presence of the respective clients in which the court interviewed the minor child of the parties hereto, namely, Ralph Levy.”

In Oakes v. Oakes, 45 Ill App2d 387, 195 NE2d 840 (1964), in a proceeding regarding the change of custody, the parties stipulated that the trial judge interview the child in chambers out of the presence of the parties, their counsel and the court reporter to determine the child’s preference. The child was not sworn nor did she testify at the proceedings, but the trial judge, at the conclusion of the proceedings, announced the child’s preference.

In the case at bar the child was sworn and testified in open court and expressed his views and feelings at considerable length both on direct and cross-examination.

The court in Oakes said, at page 394:

“The right of the court to exercise a proper discretion with respect to interviewing the child in chambers should be legalized, and it is our conclusion that it was properly done in the instant case. To protect the right to appeal, the court wpon motion should state for the record, if that becomes necessary, the substantive parts of the child’s statement to him.” (Emphasis supplied.)

We find no violation of due process resulting from the court’s interview with the child.

The following documents were introduced into evidence by plaintiff, properly objected to by defendant, and on appeal plaintiff now contends that court erred because the admission into evidence of these documents violated the hearsay rule:

(1) A letter dated July 10, 1968, addressed to “Whom it may concern” from a social worker at the Home regarding the child’s health, prognosis, programs and treatment.
(2) A medical report from a psychiatrist at the Home, mailed to Dr. Maltz, at his request, which report discussed the child’s progress, symptoms, treatment and prognosis.
(3) A report card reflecting the child’s performance at school.

Plaintiff’s documentary evidence of which she now complains was placed in evidence by plaintiff to afford her witness, Dr. Maltz, a basis upon which to express his expert opinion. Plaintiff cannot now successfully argue the impropriety of admitting the documents into evidence when she offered them into evidence, and they were received over defendant’s proper objections. Zeigler v. Illinois T. and S. Bank, 245 Ill 180, 91 NE 1041 (1910).

Plaintiff also contends that the trial court erred in admitting into evidence, over plaintiff’s objection, Defendant’s Exhibit No. 1, which was a cover letter and summary addressed to defendant’s attorney and dated December 2, 1965. It was a clinical summary conducted by the Community Child Guidance Clinic of Camden, New Jersey of the clinic’s contacts with the child, his family, along with diagnostic, prognostic information and the clinic’s recommendations in terms of the child’s future treatment. It was furnished to defendant’s attorney with the written approval of plaintiff with the proviso that copies be furnished her attorney.

It is noted that defendant’s Exhibit No. 1 was dated December 2, 1965, and the decree of divorce and the awarding of the child’s custody to plaintiff was entered March 8,1966.

The record does not reflect that the trial court relied upon any portion of defendant’s Exhibit No. 1 in the determination of any of the issues in this matter or considered any evidence prior to the date of the decree of divorce. This was a trial without a jury and there is also presumption that the trial court considered only competent evidence. Cf. Pippert v. Schiele, 315 Ill App 563, 566, 43 NE2d 407 (1942).

We therefore find that the trial court properly changed the custody of the child from plaintiff to defendant and that this order was predicated upon evidence of a substantial change of circumstances that directly affected the best interest and welfare of the child. We therefore, affirm the order of the trial court of July 26,1968.

Judgment affirmed.

DRUCKER, P. J. and LEIGHTON, J., concur.


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    Lena Kathryne Hayes, Plaintiff-Appellee, v. Alfred R. Hayes, Defendant-Appellant.
    Gen. No. 68-125.
    Fifth District.
    December 3, 1969.

      Lester R. Lightfoot, of Harrisburg, for appellant.
    Donald G. Musick, Kirk & Musick, of Mt. Vernon, for appellee.
   EBERSPACHER, J.

The plaintiff, Lena K. Hayes, brought this suit for divorce against the defendant, Alfred R. Hayes, on the grounds of mental cruelty. The matter was heard by the trial court which granted the plaintiff a decree of divorce. The defendant appeals from that decree, contending that the granting of the divorce was contrary to the manifest weight of the evidence; that the acts and conduct of the defendant do not constitute extreme and repeated mental cruelty.

The pleadings reveal that the original complaint was filed on January 25, 1968, alleging extreme and repeated mental cruelty. The defendant filed his answer on March 4, 1968. No affirmative pleadings were contained in the answer.

Also on January 25, 1968, the plaintiff filed her motion for temporary support. The motion was heard on January 31, 1968, and on February 2, 1968, the court granted plaintiff’s motion and made an award for temporary support.

The following June 25th, 1968, defendant filed a motion for Summary Judgment on the basis of the plaintiff’s testimony at the January 31st hearing. The motion for Summary Judgment was denied on August 1, 1968. Trial was held on September 11, 1968, without a jury and the court awarded a decree of divorce to the plaintiff with alimony of $250 per month.

At the trial it was stipulated that the evidence adduced at the January 31st hearing for temporary support should be considered as evidence.

The record indicated that the parties had been married almost 30 years at the time of the trial and that there were two adult children; further that the plaintiff was 51 years of age at the time of the trial and the defendant was 53.

Only the plaintiff testified in support of her allegation of mental cruelty. She testified, with regard to the defendant’s conduct, that he had threatened her, that he would fly into a rage, that he “looking like he hated me” kicked a' coffee table and rammed it into her knee, that he would stomp and hit the door and curse if she spoke, that he just “wants me to sit there.” The plaintiff further testified that the conduct of the defendant had caused her to almost have a nervous breakdown.

The plaintiff is a woman of poor health. The evidence indicates that she has had cancer within five years of the trial. She had, in 1965, a complete hysterectomy and prior to that, breast surgery. She was not suffering from the malady at the time of the trial. She does, however, suffer from allergy and arthritis, and is a mild diabetic. As a result of these ailments and her nervous condition, she states she is not able to perform a full-time job. She has worked at several unskilled part-time jobs, and was so employed at the date of the trial.

Two letters prepared by a psychiatrist who had examined the plaintiff were received in evidence by stipulation. These letters in evaluating the plaintiff’s condition, state in part: “She complains of his (her husband) moodiness, verbal and at times physical abuse. . . . After a quarrel with her husband, Mrs. Hayes made a suicide gesture by taking an overdose of diabetic pills and other medications. She is under stress concerning her health.” Then further, “There is no question that a profound emotional incompatibility now exists between them.” The letters also contained reference to visits by the defendant. The doctor commenting thereon stated “he confirms her constant suspicion and the emotional problem between them.” The defendant testified in direct contradiction to the plaintiff. He stated that he had great affection for his wife, that he had never laid a hand on her, that he had no idea why his wife left him, that his wife falsely accused him of being with other women which caused him to be nervous, further that he never threatened her, that he tried to talk things out with his wife, that he never drank to excess, that he never did anything to cause his wife any extreme mental strain, stating, “I have always tried to get along with my wife. I went along with her on everything.”

The defendant then further gave evidence that he is afflicted with asthma and is under a doctor’s care, that he is regularly employed as a truck driver and in 1967 earned $10,000 in such capacity. His average weekly wage at the time of the trial was approximately $170 per week net take-home pay.

Only one independent witness testified in person at the trial, he having been called by the defendant. This witness, a neighbor who had known the parties for five or six years, stated that he never saw any misconduct on the part of the defendant, never heard any disturbances, bickering or arguments.

It is within the province of the trial court to make the determination whether there has been sufficient evidence with which to establish either party’s contentions. In the instant case the trial court heard the evidence, viewed the witnesses and was in a better position to conclude the issues. This court will not set aside the findings and judgment of the trial court unless the decision reached by such trial court is against the manifest weight of the evidence. Hoffman v. Hoffman, 40 Ill2d 344, 239 NE2d 792 (1968); Curran v. Curran, 19 Ill2d 164, 166 NE2d 13 (1960), and the trial court’s findings are presumed to be correct. Gillespie v. Gillespie, 70 Ill App2d 38, 216 NE2d 462.

“Whether certain acts will constitute physical or mental cruelty still depends upon the total factual background surrounding the conduct under question. This includes the particular emotional and personal makeup of the parties and the varying circumstances under which any of the incidents occurred that may have given rise to the acts.” Stanard v. Stanard, 108 Ill App2d 240, 247 NE2d 438 (1969). In this case the emotional makeup of the plaintiff must be considered in determining the effect of the conduct of defendant in providing grounds for the mental cruelty allegation. Plaintiff’s testimony, taken with the psychiatrist’s reports, furnish an adequate basis for the court’s findings.

The defendant urges also that he has set forth the defense of recrimination which has not been denied by the plaintiff. This issue, however, was not raised by the pleadings and this may not now be considered. Stanard v. Stanard, supra.

Finally, the defendant urges that the court erred in awarding alimony to the plaintiff. In making such contention, he assumes an absence of fault and that under such circumstances he should only be required to furnish support at his domicile. His theory takes no recognition of the doctrine pronounced in Fox v. Fox, 9 Ill2d 509, 138 NE2d 547, to the effect that alimony may be awarded to an erring wife under certain circumstances, and ignores the trial court’s finding “that defendant has been guilty of extreme and repeated mental cruelty” as charged in her complaint.

From a careful consideration of the record we cannot find that the decision of the trial court is against the manifest weight of the evidence.

The judgment of the Circuit Court of Saline County is affirmed.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Mary E. Kirby, Plaintiff-Appellee, v. Ruth S. Swedberg, Defendant-Appellant.
    Gen. No. 69-50.
    Second District.
    December 3, 1969.

      Maynard and Brassfield, of Rockford, for appellant.
    Reno, Zahm, Folgate & Skolrood, of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Mary E. Kirby, was injured while crossing a street intersection, when struck by a car driven by the defendant, Ruth S. Swedberg. Upon trial, the jury returned a verdict for the plaintiff in the sum of $3,750 and also answered a special interrogatory wherein it found that the plaintiff was guilty of contributory negligence. The court set aside the answer to the special interrogatory and entered judgment in favor of the plaintiff on the general verdict.

On appeal, the defendant asserts that the trial court erred: (1) in denying her post-trial motion to set aside the general verdict in favor of the plaintiff and in refusing to enter judgment for the defendant in conformity with the answer to the special interrogatory; (2) in ruling as a matter of law that the plaintiff was not guilty of contributory negligence; and (3) in ruling that the answer to the special interrogatory was against the manifest weight of the evidence.

The evidence indicates that the plaintiff was struck while walking in the crosswalk, from the south to the north, across Fifth Avenue. The accident occurred shortly after noon; the weather was partly cloudy, yet bright; it had snowed the night before and the streets were wet from the melting snow. The defendant was proceeding south on Sixth Street—a one-way street—and had stopped at the stop sign, at its intersection with Fifth Avenue. Stop signs were located at the corner of this intersection for the east and west traffic on Fifth Avenue and for the southbound traffic on Sixth Street.

At the request of the defendant, the following special interrogatory was submitted to the jury:

“Does the jury find from a preponderance of the evidence that the plaintiff was free from contributory negligence immediately at and prior to the occurrence in question which proximately caused or contributed to cause the alleged injuries?”

The jury answered the special interrogatory, “No,” yet returned a general verdict for the plaintiff, as aforesaid.

The defendant filed a post-trial motion asking that the general verdict be set aside, and that the court enter judgment for the defendant on the basis of the answer to the special interrogatory. The plaintiff filed a post-trial motion asking that judgment be entered on the general verdict; that the answer to the special interrogatory be set aside as against the manifest weight of the evidence, and conditionally for a new trial in event the trial court entered a judgment in favor of the plaintiff on the general verdict and such judgment is reversed on appeal.

The trial court denied the defendant’s motion and granted the plaintiff’s motion, in part, stating that it found as a matter of law that the plaintiff was not guilty of contributory negligence; that the answer to the special interrogatory was against the manifest weight of the evidence, and ordered that it be set aside. The court then entered judgment for the plaintiff on the general verdict and denied the plaintiff’s conditional motion for a new trial.

Section 65 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 65) provides that when a special finding of fact is inconsistent with a general verdict, “the former controls the latter and the court may render judgment accordingly.” It has been stated that the reason for the rule is that the jury is presumed to more clearly understand a particularized special issue on which its attention has been focused, than a composite of all of the questions in a case. Borries v. Z. Frank, Inc., 37 Ill2d 263, 266, 226 NE2d 16 (1967).

While the answer to the special interrogatory will normally control the general verdict, such answer has no binding effect upon the trial court when it has no substantial evidentiary support, or when the determination is contrary to the manifest weight of the evidence. Borries v. Z. Frank, Inc., supra, 266; Freeman v. Chicago Transit Authority, 33 Ill2d 103, 106, 109, 210 NE2d 191 (1965).

When the answer to the special interrogatory is inconsistent with the general verdict, the court may enter judgment on the general verdict only when there is a valid basis on which to set aside the answer to the special interrogatory. This may be done on an evidentiary basis under the same conditions that a general verdict may be set aside. Freeman v. Chicago Transit Authority, supra, 105, 106.

We believe that an answer to a special interrogatory should be set aside only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the party presenting the special interrogatory that no contrary answer to the interrogatory based on that evidence could ever stand. It is only in such case that it is proper to set aside the answer to the special interrogatory and enter a judgment on the general verdict notwithstanding such answer. See: Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967). If the answer to the special interrogatory is contrary to the manifest weight of the evidence, then a new trial should be ordered. Borries v. Z. Frank, Inc., supra, 266; Freeman v. Chicago Transit Authority, supra, 105, 106.

In her post-trial motion, the plaintiff did not contend that judgment should be entered for her on the general verdict and notwithstanding the special verdict on the ground that there was no substantial evidentiary support for the answer to the special interrogatory. Yet this, in essence, is what the trial court found when it held, as a matter of law, that the plaintiff was not guilty of contributory negligence and entered judgment on the general verdict. Section 65 of the Civil Practice Act empowers the trial court to enter judgment in accordance with the answer to a special interrogatory which conflicts with the general verdict simultaneously returned, and such action is particularly appropriate where the special interrogatory has substantial evidentiary support. ■ However, there is no corresponding authority in the trial court to enter judgment upon a general verdict when it decides that the inconsistent finding of the special interrogatory is against the manifest weight of the evidence. Borries v. Z. Frank, Inc., supra, 266; Ill Rev Stats 1967, c 110, par 65. In the absence of an allegation in the plaintiff’s post-trial motion that there was no substantial evidentiary support warranting a judgment on the general verdict notwithstanding the answer to the special interrogatory, the trial court found, without proper basis, as a matter of law, that the plaintiff was not guilty of contributory negligence, and erroneously granted relief to the plaintiff in excess of that prayed in her post-trial motion. Ill Rev Stats 1967, c 110, par 68.1(2). In addition, the trial court also found that the answer to the special interrogatory was contrary to the manifest weight of the evidence, as contended by the plaintiff. We concur in this finding.

The defendant testified that she stopped at the intersection, in the far left traffic lane of Sixth Street; that she put on her turn signal to indicate a left turn onto Fifth Avenue; that the sun was shining in her eyes; that she proceeded to make her left turn at about two miles per hour; that she did not see the plaintiff until she was about two or three feet from her; and that she applied her brakes but struck the plaintiff. The plaintiff was approximately halfway across Fifth Avenue and was within the crosswalk when the defendant’s car struck her. It appears from the defendant’s testimony that she believed that her vision was obstructed by the sun which was shining in her eyes.

The plaintiff testified that she looked in all directions before she started to cross Fifth Avenue, and did not think that the defendant’s car was then at the intersection ; that when she was nearly halfway across, she saw a car approaching on Fifth Avenue from the east, but knew that it would stop, and continued to walk; and that she then turned and saw the defendant’s car for the first time when it was right beside her. When we consider that the plaintiff had walked about halfway across the avenue when she was struck, it seems highly probable that she had looked carefully in all directions, and that the defendant’s car was not then at the crossing. In the light of her testimony that she had been looking to her right, as a car approached from this direction in the west-bound traffic lane which she was about to cross, it was natural that her attention was then directed there, rather than toward a car which was turning from an intersecting street.

The plaintiff is aided by the fact that, while crossing within the marked crosswalk, she had the right to assume that the automobiles which were being driven on the street would be driven with reasonable care so that they would not collide with her. Rees v. Spillane, 341 Ill App 647, 656, 94 NE2d 686 (1950); Ill Rev Stats 1967, c 951/2, pars 171(c), 167. The defendant suggests that because the sun was shining in her face and its rays were apparently reflecting off the snow and the wet street, she did not see the plaintiff. However, under such circumstances, she should have exercised considerable caution in driving over a crosswalk where pedestrians might reasonably be walking. Duffy v. Cortesi, 2 Ill2d 511, 518-520, 119 NE2d 241 (1954).

We are of the opinion that the trial court was correct in finding that the answer to the special interrogatory was contrary to the manifest weight of the evidence, and we believe the trial court should have ordered a new trial under the circumstances. Borries v. Z. Frank, Inc., supra, 265, 266; Freeman v. Chicago Transit Authority, supra, 106. The trial court denied the plaintiff’s conditional motion for a new trial, and that determination is properly before us on this appeal. Ill Rev Stats 1967, c 110, par 68.1(6).

We are not unmindful that in Freeman the Supreme Court held that it was proper for the trial court to order a new trial under similar circumstances even though no such relief was sought in the post-trial motion, and that the trial court could order such relief on its own motion. By analogy, it could be argued in the case at bar, that the trial court could, on its own motion, under the standards of Pedrick, enter judgment notwithstanding the answer to the special interrogatory. However, in this case, we believe that the trial court purported to act on the motion before it, and not on its own motion, and that the relief which may be granted upon review under these circumstances, is limited to the errors specified in the post-trial motions of the plaintiff and the defendant, as provided in section 68.1 (2) of the Civil Practice Act.

For the reasons stated herein, the cause is reversed and remanded for a new trial.

Reversed and remanded with directions.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: STOUDER, J.

text:
    Robert C. Sutton and Dorothy Sutton, Plaintiffs-Appellants, v. Robert D. Harrison, Defendant-Appellee.
    Gen. No. 69-23.
    Third District.
    December 3, 1969.

      Elliot B. Young, of Peoria, for appellant.
    Barnes & Barnes, and Pace & Paolucci, of Lacon, for appellee.
   STOUDER, J.

This is a personal injury action instituted in the Circuit Court of Marshall County by Robert C. Sutton and Dorothy Sutton, husband and wife, Plaintiffs-Appellants, seeking damages from Robert D. Harrison, DefendantAppellee, on account of the latter’s alleged negligent operation of his automobile. The jury returned a verdict against plaintiffs upon which judgment was entered and from which judgment the plaintiffs have appealed.

On January 3, 1962, at approximately 8 o’clock p. m., plaintiff, Robert Sutton, was driving his automobile in a northerly direction on Illinois State Route 29. Sutton’s wife also a plaintiff, was seated behind him and the automobile contained two other passengers. The night was dark and misty. Illinois Route 29, a two-lane highway, was damp. After passing through Henry, Rlinois, and resuming his speed on the open highway, plaintiff noticed an object in the highway which he identified as a stalled automobile blocking the northbound lane.

According to plaintiffs and the passengers in their car, there were no lights on the stalled vehicle. According to Sutton he slowed his vehicle and turned into the left or southbound lane in order to pass the stalled vehicle. As he did so he saw a person running across the road from the left side of the stopped vehicle. Sutton stated that in order to avoid hitting the person, he turned his car to the right and applied his brakes hard, but his vehicle struck the defendant’s vehicle, shoving it ahead approximately two car lengths and causing the injuries sustained by plaintiffs.

Defendant, Robert Harrison, testified that on the night in question he, accompanied by Newell, a passenger, drove his stationwagon on a blacktop road northwest from the Village of Henry to a point where the blacktop road intersected with Rlinois Route 29. He stopped for the intersection, then turned right and proceeded a short distance, when his motor died. He tried to get the vehicle completely off the highway but only the right front wheel was off before the car came to a stop. During the estimated five minutes before plaintiffs’ car reached the scene, defendant had looked under the hood to ascertain what might be wrong, but could find no trouble. He and his passenger attempted to push the vehicle off the highway but could not move it. According to defendant and his passenger, the dome light, a trouble light and the rear lights were all on at the time. According to Harrison, as he was standing on the left side of the car with his trouble light, he observed the plaintiffs’ car approaching in the northbound lane. According to Harrison, the plaintiffs’ car made no effort to avoid the stalled vehicle and Harrison, apprehensive of being struck, ran across the highway as plaintiff applied his brakes, thereafter striking defendant’s vehicle. At the time of the collision the passenger of defendant was in the stalled vehicle and according to his testimony, was pumping the brakes in order to afford a flashing red light to be observed by those approaching from the rear.

In seeking to reverse the judgment in favor of defendant entered on the verdict of the jury, plaintiffs argue that the liability of the defendant was established as a matter of law and consequently a new trial should be awarded on the issue of damages only or in the alternative a new trial should be awarded generally because of errors in instructions.

Basic to this dispute is the application of chapter 951/2, section 185, Ill Rev Stats 1961. The Statute provides, “(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway.” Subsection (c) of section 185 provides, “This section shall not apply to the driver of any vehicle which is disabled while on the paved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position; . . . .”

Explicit in plaintiffs’ argument that defendant is liable as a matter of law is the assertion that defendant was negligent as a matter of law. Plaintiffs’ reasons in this respect are substantially the same as those urged in justification of its contention that error was committed in rulings on instructions. For that reason the matters will be considered together.

Plaintiffs tendered a “statutory duty” instruction in the language of subsection (a) of section 185, chapter 951/2, Ill Rev Stats 1961. Pursuant to objection by defendant, the court declined to give such instruction but instead gave defendant’s “statutory duty” instruction which included both subsections (a) and (c) of section 185, chapter 951/2, Ill Rev Stats 1961.

Plaintiffs insist the evidence is uncontradicted that defendant’s vehicle was stopped or parked on the highway in violation of subsection (a). The court erred according to plaintiffs, by including in such instruction the exemption specified in subsection (c) because in the absence of evidence of the cause of the motor failure, defendant’s vehicle could not be considered disabled.

We have reviewed the authorities cited by plaintiffs but conclude that they are either inapplicable to the circumstances of this case or, in fact, support the propriety of the judgment.

In Crawford v. Cahalan, 259 Ill App 14, an early case dealing with a different but somewhat similar statute prohibiting stopping or parking on the highway, the court held that the only excuse for such conduct was an emergency or exigency that left no choice. In the Crawford case, plaintiff’s son had stopped the vehicle on the highway to observe an overturned vehicle in a ditch completely off the highway. Damages to the vehicle were sought from a defendant who ran into the vehicle while it was so stopped. The court concluded that stopping to view another vehicle was not an emergency or exigency justifying the stoppage of the vehicle on the highway, and consequently reversed a judgment in favor of the owner of the stopped vehicle because it concluded that the driver thereof was guilty of contributory negligence as a matter of law. To the same effect is Fitzpatrick v. California and Hawaiian Sugar Refining Corp., 309 Ill App 215, 32 NE2d 990, also relied upon by plaintiffs.

As indicated in the Crawford case, a mechanical breakdown or failure may constitute an emergency justifying the stopping of a vehicle on the highway, notwithstanding the potential danger which may ensue. This view is in accord with section 185, chapter 951/2, Ill Rev Stats 1961, which not only recognizes the urgency of removing stopped or parked vehicles from the highway but also that under some circumstances such may not be possible or practical. In this respect that part of subsection (a) which provides **. . . when it is practical to stop . . . such vehicle off the highway . . .” should be considered with that part of subsection (c) “. . . disabled ... to such extent that it is impossible to avoid . . . leaving such disabled vehicle in such position.” Both sections contemplate that there are many circumstances to be considered in determining whether the leaving of the vehicle on the highway is justified. Such circumstances would include the character of the vehicle, the nature of the disabling condition, as well as the adjacent terrain and the resources or means available to move such vehicle from the highway. Neither the language of the statute, its purpose nor the cited cases require that technical evidence of the cause of the mechanical failure of a vehicle be presented before the vehicle can be deemed disabled. Indeed, if mechanical failure, or, as in the instant case, motor failure, does occur the reasons for such failure are immaterial so far as the purpose and object of the statute are concerned.

In Jines v. Greyhound Corp., 33 Ill2d 83, 210 NE2d 562, defendant’s bus struck a stalled vehicle injuring the plaintiff, a passenger therein. Although holding that the issues of negligence and contributory negligence were properly jury issues, the court reversed the judgment granting the plaintiff a new trial on account of an evidentiary error. The evidence erroneously admitted was the testimony of an expert that the brake drum on the left rear wheel was locked or “frozen solid.” Such opinion was based on an examination of the vehicle some months after the incident, without any evidence tending to show the wheel was in the same condition at the time of examination as at the time of the incident. The court stated “an essential part of plaintiff’s theory was that the plaintiff and his associates were unable to push the stalled car off the roadway.”

The Jines case illustrates the duty to avoid leaving a vehicle on the highway even when it may be disabled to some extent. Another aspect of the basic duty to avoid leaving vehicles on the highway is that relating to the duty to exercise reasonable care in warning other motorists of the dangerous condition so created. Moore v. Bethel, 4 Ill App2d 270, 124 NE2d 352.

In our view of this case, there is evidence that defendant’s vehicle was disabled and that it could not be moved off the highway under circumstances existing at the time. Accordingly, we find no error in the giving of the instruction on section 185, including subsection (c) applying to disabled vehicles. To say as do plaintiffs, that defendant could and should have done something different such as “go for help” does not demonstrate the absence of conflicting evidence. On the contrary, the resolution of such issue was one appropriately submitted to the jury. Additionally, we observe that there is direct conflict in the evidence concerning the lights on defendant’s vehicle and, therefore, the reasonableness or adequacy of defendant’s warning of the danger. Likewise, there is a basic dispute as to whether plaintiff veered his car into the car of defendant in order to avoid hitting the defendant running across the road or whether defendant ran across the road in order to avoid being hit by plaintiffs’ vehicle. The resolution of such conflicts is significant and material in determining whether defendant was or was not negligent, and the jury’s verdict is supported by ample evidence.

Plaintiffs have directed our attention to other alleged errors in the court’s rulings on instructions. We believe a discussion of such assignments of error is not required and that it is sufficient to say that such rulings were not erroneous.

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

Judgment affirmed.

ALLOY and RYAN, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond A. Newton, Defendant-Appellant.
    Gen. No. 53,337.
    First District, Third Division.
    December 4, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard F. Sprague, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Raymond A. Newton, was charged with the theft of an automobile valued in excess of $150 in violation of Ill Rev Stats 1967, c 38, § 16-1 (a). He was also charged with criminal trespass to an automobile. After a bench trial, defendant was found guilty of both crimes. He was sentenced for a term of one to three years in the penitentiary for theft, and to sixty days in the County Jail for trespass.

Defendant appeals only the conviction for theft of the automobile. In his brief, defendant had contended that his jury waiver was not knowingly and understandingly made. However, at oral argument, counsel for defendant waived this argument. The remaining point on appeal is that the State did not prove that the value of the automobile was in excess of $150. Defendant argues, therefore, that the sentence should be reduced to one appropriate to a misdemeanor for theft of property not exceeding $150 in value. The Criminal Code provides that a person first convicted of theft of personal property exceeding $150 in value shall be imprisoned in the penitentiary from one to ten years, while a person first convicted of theft of property not exceeding $150 in value shall be fined or imprisoned in a penal institution other than a penitentiary not to exceed one year. Ill Rev Stats 1967, c 38, § 16-1 (a).

David Joseph, the complaining witness, testified that on December 30, 1967, he drove to work in his 1962 Chevrolet. He arrived at work about 8:00 a. m., and at 1:00 p. m., noticed that the automobile was gone. He next saw his car at the police station. He purchased the automobile new in 1962, and over the objection of the defense, testified that the car was presently worth close to $1,000.

Police officers testified that they observed a 1962 Chevrolet traveling at a high rate of speed. After a chase of a few blocks, the automobile stopped and the police apprehended defendant. One of the officers testified that the automobile was in average condition.

Generally, where the value of property is relevant, it must be proved, and the proof must show the fair cash market value at the time and place of the theft. People v. Johnston, 382 Ill 233, 46 NE2d 967 (1943). And where defendant is charged with theft of an automobile worth more than $150, the fair cash value of the automobile must be proved beyond a reasonable doubt. People v. Kurtz, 69 Ill App2d 282, 216 NE2d 524 (1966).

In the absence of contrary evidence, testimony as to the worth of property is proper proof of its value. People v. Franklin, 415 Ill 514, 114 NE2d 661 (1953). Although generally a nonexpert witness cannot give his opinion as to value, the owner of personal property has been allowed to testify to its value, where he has some familiarity with the property. In Brenton v. Sloan’s United Storage & Van Co., 315 Ill App 278, 42 NE2d 945 (1942), the court, at p 280, stated:

“This court has previously concluded that where personal property is of a usual and ordinary nature, such as household goods, the value thereof was a matter of common knowledge, and any person, including a housewife, may testify as to its value (citations omitted). Plaintiffs in this case, therefore, as the owners of the property, were competent witnesses to testify as to their (sic) actual value (citations omitted).”

And in People v. Harden, 42 Ill2d 301, 247 NE2d 404 (1969), where no objection was made by the defendant to the testimony, the court held that the opinion of a person with sufficient knowledge of the property and its value to give a reasonable estimate was sufficient, in the absence of contrary evidence, to establish the value of the property in question.

In 20 Am Jur, Evidence, § 894, the applicable rule is set forth as follows:

“The right of the owner of a chattel to testify as to its value, although he may not possess sufficient knowledge or skill to testify as an expert on the subject, is generally recognized. The theory is that he has such familiarity with his property that he may generally be presumed to know what it is worth; and it is not therefore essential, as a condition precedent to the admission of his testimony, to prove that he knew the value, nor is the owner required to state the elements entering into their value to him as a necessary qualification for giving his opinion.”

In the instant case, the owner of the automobile testified that its value was close to $1,000. He purchased the automobile new in 1962, and had owned it until the date of its theft. That he had sufficient knowledge and familiarity with the vehicle to know its value is evident. There was additional testimony that the automobile in question was not only driveable and in average condition, but that it was also capable of being operated at a high rate of speed. Automobiles, like household furniture, have become items of usual and ordinary nature. For these reasons, we find that the owner was competent to testify as to the value of the automobile on the date of the theft, and the weight to be given to his testimony was, of course, for the trier of fact to determine.

Cases cited by defendant are distinguishable. In People v. Kelly, 66 Ill App2d 204, 214 NE2d 290 (1965), the owner testified that he did not know if his automobile was worth $150 at the time of its theft. In People v. Fognini, 374 Ill 161, 28 NE2d 95 (1940), the court found that the value of two men’s suits, old, shopworn and out of style, had not been established because of their age and unmarketability. In People v. George, 398 Ill 318, 76 NE2d 60 (1947), the court reversed because the owner of a watch and pen set failed to testify as to the value of the property, but testified as to what his son had told him about the cost of the set.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Thomas J. Bowler and John P. Bowler, copartners, d/b/a Brighton Building & Maintenance Co., Plaintiffs-Appellants, v. The Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 53,534.
    First District, Third Division.
    December 4, 1969.

      L. Louis Karton and Harry M. Brostoff, of Chicago, for appellants.
    Shulman, Baum and Marcus, Daniel S. Shulman and Bernard M. Baum, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In November 1962, the Metropolitan Sanitary District of Greater Chicago advertised for bids for the construction of a sewer known as Calumet Intercepting Sewer, Contract 11-8. The plaintiffs, Thomas J. Bowler and John P. Bowler, doing business under the name of Brighton Building and Maintenance Company, submitted a bid in December 1962. They were successful and the contract was awarded to them in February 1963. In May 1963, the City of Chicago passed an ordinance granting an easement to the project which provided that the City would perform certain services such as replacing and maintaining water mains and electrical systems where these conduits traversed City property. Under the terms of the ordinance the sanitary district was required to reimburse the City for such work.

The plaintiffs constructed the sewer and as the work progressed the City billed the district for its services. The district paid the City and reimbursed itself by deducting the same amounts from the periodic payments due the plaintiffs under their contract.

The plaintiffs disputed the right of the district to charge them for the payments it made to the City. They started this action for declaratory judgment, seeking an interpretation of their contract and the recovery of the sums withheld from them. They estimated that the deductions would total $91,334.83. They subsequently sought, in a different suit, a determination of damages for the use of additional labor and material. The second suit was consolidated with the present action. The district answered the complaint for declaratory judgment, stated that it had been billed by the City in the total sum of $75,081.53, and admitted that this sum had been deducted from the money owed the plaintiffs. The district asserted that the plaintiffs knew the ordinance was contemplated, were notified when it was adopted and agreed to assume and perform all the covenants contained therein insofar as they pertained to the plaintiffs’ undertaking. The district further alleged that the plaintiffs had agreed to keep it harmless from liability or expense incurred by reason of the ordinance. The plaintiffs replied to the answer, denied its affirmative allegations, and asserted that they became informed of the terms of the ordinance after its adoption.

The district then moved for summary judgment and its motion was granted. Although the plaintiffs’ claim for damages was undisposed of, the trial court, pursuant to Supreme Court Rule 304, found that there was no just reason for delaying an appeal from the order granting summary judgment to the defendant.

The plaintiffs contend that the payments were wrongfully withheld from them because at no time did they assume the district’s obligation to pay the City. They stress the fact that the ordinance was not in existence at the time their contract was executed, that the easement was negotiated by the district without their knowledge or participation, and that at the time the contract was signed they had no reason to anticipate that the district would enter into an agreement which would entail payments by them of sums then unknown and unascertainable. They further contend that since the contract was prepared by the district it should be construed most strongly against the district; that the contract is ambiguous and that its ambiguity is shown by the district’s inconsistent interpretations of its easement provisions. They point to an easement obtained from the Pennsylvania Railroad which contained conditions similar to the City’s ordinance but state that under the railroad easement the district did not shift its obligations to the plaintiffs as it did under the City’s easement.

The district’s proposal for the Calumet Intercepting Sewer was incorporated in its contract with the plaintiffs. Pertinent provisions of the proposal are these:

“Ordinances, easements and permits are being acquired for a crossing under their respective rights of way and property for the construction of the intercepting sewer from the following:
“Ordinance from City of Chicago
a
“The contractor hereby agrees to assume, carry out and perform all of the covenants and conditions of said easements insofar as they pertain to the construction of the work under this contract.”

The specific instructions to bidders which also became part of the contract stated:

“In preparing a proposal for doing the work herein specified, the bidder shall examine and inform himself as to the covenants and conditions prescribed in the various laws, ordinances and permits hereinafter mentioned in Article 2 of the General Conditions, and in the easements mentioned in the Contract (when easements are required).”

In Article 2 of the General Conditions section of the proposal and contract the contractor’s obligations under a municipal ordinance are further articulated:

“The contractor . . . shall strictly comply with all ordinances, statutes, and regulations of the Sanitary District, and municipalities within which the work is being carried on, the State of Illinois, and the United States Government in any manner affecting the work hereunder or controlling or limiting in any way the actions of those engaged on work pertaining to this contract.”

In Article 2 the plaintiffs also agreed to:

. . save and keep the Sanitary District harmless from any liability or expense, incurred in the above mentioned permits, ordinances, statutes or regulations.”

The plaintiffs cite many cases in support of their position that the provisions in the contract, whereby they assume all obligations under easements acquired by the district, cannot be construed to extend to and include the assumption of an obligation which was not then in existence and which was so vague, uncertain and indefinite as to be unenforceable. There can be no disagreement with the broad propositions of law governing the construction of contracts stated in these cases, but none of the authorities is applicable to the present case. The rule that a contract must be construed most strongly against its author comes into play only when other rules of construction fail. Farber v. Fleck, 51 Ill App2d 145, 200 NE2d 903 (1964). In construing a contract, its determinative factor is the intention of the parties. That intention must be ascertained, if possible, from the contract itself. If the intention can be ascertained from the wording of the contract, rules of construction have no application. Every provision in a contract must be given meaning and effect because it is assumed that all provisions were inserted deliberately and for a purpose. Industrial Commodity Corp. v. E. J. Brach and Sons, 92 Ill App2d 163, 235 NE2d 857 (1968).

Upon a review of the entire contract and particularly of the provisions quoted above, we find no merit to the plaintiffs’ position. The language is clear and unambiguous and therefore, there is no need to resort to rules of construction or look to extrinsic facts surrounding the making of the contract. The plain import of the foregoing provisions was to put the plaintiffs on notice that ordinances were being acquired, that they had to strictly comply with and perform all the covenants and conditions of these ordinances and, in addition, that they would be required to hold the district harmless from any expense accruing under the requirements of the ordinances. The district’s withholding from the plaintiffs sums equal to those it had paid the City of Chicago was consistent with the terms of the contract. The fact that the plaintiffs have found these terms burdensome does not relieve them from their own imprudence in entering into the contract. Contracting parties are bound by the plain and unambiguous terms of whatever agreements they may have reached. Nardi, Pain & Nadolsky, Inc. v. Vignola Furniture Co., 80 Ill App2d 220, 224 NE2d 649 (1967).

Moreover, under the terms of the contract, the plaintiffs agreed to maintain the essential utility services in the community in which the intercepting sewer was to be constructed; they agreed to perform, at their own expense, the necessary removal, relocation, maintenance and replacement of the community’s water mains and electrical systems. The ordinance provided that where the City’s property was affected, the City would do this work itself and that the district would repay the City for its services and expenses. Thus, in the absence of the ordinance, the plaintiffs would have been bound to perform these duties. It is difficult, therefore, to understand the plaintiffs’ assertion that the uncertainties of such an undertaking could be the difference between a profit or loss on the contract and that had they known they were to be held liable for the district’s payment to the City they would have added this figure to the amount of their bid.

The judgment is affirmed.

Affirmed.

SCHWARTZ and LEIGHTON, JJ., concur.


author: TRAPP, P. J. CRAVEN, J.,

text:
    Richard Okleshen, a Minor, by Henry Okleshen, His Father and Next Friend, Plaintiff-Appellant, v. Rune & Sons, Inc., an Illinois Corporation, Gordon K. Nelson and Marion Nelson, Defendants-Appellees.
    Gen. No. 52,524.
    First District.
    December 5, 1969.

      CRAVEN, J., dissenting.
    Peterson, Lowry, Rall, Barber & Ross, of Chicago (Walter W. Ross, Jr., Herbert C. Loth, Jr., and Sheribel Rothenberg, of counsel), for appellant.
    Berchem, Schwantes & Thuma, of Chicago (Michael J. Thuma and James O. Latturner, of counsel), for appellees Gordon K. Nelson and Marion Nelson, Vogel & Vogel, of Chicago (L. H. Vogel and Robert Guritz, of counsel), for appellee Rune & Sons, Inc.
   TRAPP, P. J.

Plaintiff appeals from judgment entered upon jury verdicts, (1) against the defendant Rune in the sum of $8,000 with the contention that there should be a new trial upon the issue of damages only and (2) finding the defendants Nelson not guilty. Defendant Rune cross-appeals from the judgment and from the denial of its motions for directed verdict and for judgment non obstante veredicto raising the issue of the sufficiency of the evidence to support either a finding of negligence or proximate cause.

Defendants Nelson owned property upon which a home was being built through contracts with divers craftsmen. Defendant Rune performed a contract to do the cement and masonry work.

In the course of the construction of the Nelson home, Rune’s employees had brought a gasoline drum on the building premises. The plaintiff, Richard Okleshen, aged six years, and his brother, Robert, and Randy Thrall, each aged ten years, on the date of the accident had gone to the site to play in a “fort” they had built. They went inside the partially constructed Nelson house and found a tennis ball with which they played “catch.” Sometime later they went outside and noticed the drum which the evidence discloses had two openings, a spigot and a screw cap, sometimes called a filler cap. It had been left on the property by Rune’s foreman, who found that gas could no longer be drawn from the spigot. The spigot itself had a device by which it could be securely locked, and the evidence is that, prior to and at the time of this occurrence, it was, in fact, locked. The testimony of the plaintiff is that at the time the barrel was on its side, but he agreed that he had, at a prior time, stated that his brother, Robert, pushed the barrel from a vertical position over on its side. One or more of the boys and probably Robert removed the screw cap described as being 4 or 5 inches in diameter and rolled the barrel so that some gasoline came out. Robert ordered the plaintiff to get matches and the latter returned to the kitchen in his home where his mother was standing at the sink. He first took some cookies from a jar and then opened a drawer from which he took a small box of wooden matches from a larger box or carton of matches. His mother observed him taking the cookies. The boys rolled the drum so that some gasoline was poured onto the tennis ball and the boys lighted it and watched it burn. Determining to build a fire, one got a metal bucket from the site, put some gasoline from the drum into it and carried the bucket to the pile of wood scrap on the premises. One poured the gasoline over the scraps and after using more than one match, got a fire going. It appears that in carrying the bucket some gasoline was spilled on the trousers of the plaintiff and as he stood near or jumped over the fire, the trousers were ignited.

Plaintiff suffered third-degree burns on his right leg extending from his groin to below his ankle. Much of the skin on his leg had burned away, with pieces of burned skin hanging down in strips two to five inches long. He was hospitalized and skin grafts were made from other parts of his body to the parts which had burned. He was in the hospital about four and one-half months, at a cost in excess of $8,500. He sued, by his next friend, for his injuries and medical expenses.

In urging a new trial on the issue of damages only as to defendant, Rune, plaintiff urges error in the overruling of objections of the plaintiff to questions asked certain witnesses on cross-examination, to the giving of certain instructions tendered by Rune to the exclusion of certain slide exhibits of plaintiff, and in that the damages awarded were patently inadequate to compensate plaintiff for his injuries.

Plaintiff complains that it was reversible error for defendants to be permitted to examine certain witnesses concerning the possible misconduct of plaintiff’s parents. We cannot agree. Plaintiff had the burden of proving that defendants were negligent and that such negligence proximately caused the injury to plaintiff. Defendants’ theory of this examination was that it tended to show that the circumstances of the injury were not foreseeable as defendant, Rune, could not foresee that the parents’ misconduct would have occurred under the present circumstances.

Plaintiff also contends that a new trial on all issues should be ordered as to the Nelsons on the grounds that the verdict in their favor is contrary to law and against the manifest weight of the evidence, that the court erred in refusing to give certain instructions tendered by the plaintiff or any instructions containing plaintiff’s theory of liability as to the Nelsons, and that error was committed in permitting the Nelsons’ counsel to argue that the alleged negligence of plaintiff’s parents barred plaintiff’s cause of action.

Upon the issue of the liability of the Nelsons, the jury verdict is supported by the evidence that there was no negligence on the part of the owners, and that the injuries were not foreseeable to them. Recent cases in Illinois have reviewed the classic “attractive nuisance” theory of liability for injury to children on the property of another. In Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955), our Supreme Court declared that “the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases.” (At 624 (126 NE2d at 841).) An owner of property may not be held liable for injuries caused by the negligence of an independent contractor working on the premises when the owner does not exercise any control over the contractor in the performance of the contract.

As was held in the Kahn case, “the person responsible for creating the dangerous condition will be liable.” (At 621 (126 NE2d at 840).) The test is whether the injury was foreseeable to the landowner. This is the true basis for liability in what has been formerly known as “attractive nuisance” cases. The doctrine of foreseeability in such cases has been clearly expressed also in Kuhn v. Goedde, 26 Ill App2d 123, 167 NE2d 805 (4th Dist 1960), and Prater v. Veach, 35 Ill App2d 61, 181 NE 2d 739 (4th Dist 1962). From these cases, the following rules are evident: (1) In order to hold an owner liable, he must be shown to have actual or constructive knowledge of the condition; (2) if aware of the condition, it must be shown that he has knowledge that this condition involves an unreasonable risk to children; (3) an owner is not required to inspect the work of an independent contractor; and (4) if the owner confines his activities to checking up on the contractor only to see how the job is progressing, he is not deemed to have constructive knowledge of every condition or detail of the job, nor is he responsible for the contractor’s equipment.

There is no evidence that the owners ever had seen the drum on their property, or knew that it was left there over the weekend when the contractor’s employees were not there. In the absence of such evidence, the owners had no actual or constructive notice of the condition causing the injury and, therefore, the verdict as to them is in accord with, not contrary to, the manifest weight of the evidence.

Upon the evidence the issue of the liability of the defendant, Rune, is concluded by the opinion in Driscoll v. Rasmussen Corp., 35 Ill2d 74, 219 NE2d 483. In Driscoll the minor plaintiff and his companions went upon the premises under construction and ultimately opened sealed cans of lacquer found in a trash pile. Some of the contents were splashed upon plaintiff’s trouser leg and he was injured when fire was brought upon the scene from off the premises. Plaintiff’s clothing became ablaze after the fire was applied to ignite one or more of the cans.

Here the evidence, including the testimony of plaintiff’s father, is that the spigot of the gas drum was padlocked. Plaintiff’s older companions contrived to remove the filler cap on the drum, and to pour out some gasoline after considerable manipulating of such drum. The matches were brought to the premises by the plaintiff at the direction of his older brother and their companion.

In discussing the duty to exercise ordinary care to guard against injuries which are reasonably probable from the condition created, the Supreme Court, in Driscoll, noted that it could hardly be foreseen that the sealed cans might be opened and lacquer splashed upon the clothing which would be ignited by fire obtained at other places. That opinion pointed out that the bringing of the fire upon the construction site was an unusual or extraordinary use:

“. . . which a person cannot reasonably be required to anticipate in the absence of something to put him on notice of such a practice,”

and it was held that the proximate cause of the injury was, in fact, the fire brought to the premises by the plaintiff. See also Donehue v. Duvall, 41 Ill2d 377, 243 NE2d 222.

Plaintiff seeks to distinguish Driscoll upon the basis that the children were not warned of the hazard in playing with gasoline. The record does show that plaintiff’s father did warn the plaintiff and his companions against playing upon the bricks and straw on the premises which were being used in construction. The actual issue is one of defendant Rune’s duty to foresee and the existence of proximate cause arising from its conduct thereafter. Upon the facts here present, foreseeability and proximate cause cannot be made dependent upon the absence of warning by parents or other persons.

Plaintiff urges that the case should be controlled by Svienty v. Pennsylvania R. Co., 8 Ill App2d 360, 132 NE2d 83. There certain “switch heaters” were left upon defendant’s right-of-way and adjacent lots where boys regularly played. The opinion notes that the heaters contained flammable fluid and that some were left with “no tops,” while other heaters were left burning on the right-of-way. The opinion states that defendant, through its employee, had actual notice that the boys played with the heaters, that they had on occasion given heaters to the boys to play with, and that they had been seen to ignite the heaters. On this occasion some heaters with no tops were carried onto the lots and in the process the fluid spilled on plaintiff’s trousers. When lighted heaters were then carried to the scene, the trousers caught fire, plaintiff was injured, and it was determined that upon such facts probable cause was properly for the jury.

Here it cannot be said that the locked barrel drum was left unsecured. There is no evidence that the boys had been observed playing with the fuel drum and the testimony of the infant plaintiff and his brother is that they were not certain that they had ever seen the drum on the premises before. The evidence in behalf of the plaintiff is that the drum was left because of the belief that there was no more gasoline in the drum.

The judgment in favor of the defendants Nelson is affirmed. In Driscoll the Supreme Court reversed a judgment for the plaintiff and remanded to the trial court with directions to enter judgment for the defendant. Upon such authority the judgment against the defendant, Rune, is reversed.

Affirmed in part, reversed in part.

SMITH, J., concurs.

CRAVEN, J., dissents.

CRAVEN, J.,

dissenting.

I concur in the majority opinion insofar as it relates to the defendants Gordon K. Nelson and Marion Nelson. I cannot agree that the opinion of the Supreme Court in Driscoll is determinative of the issue of liability as to the defendant Rune. I would affirm the judgment entered upon the verdict of the jury against that defendant. There are many issues presented by this appeal but in view of the majority opinion exonerating Rune, as a matter of law, these issues need be mentioned only in passing. The trial court correctly determined complex issues as to instructions, evidence and the possible contributory negligence of the parents in this action by a minor by his father as next friend.

In my opinion, a factual issue was presented for determination by the jury and the jury’s determination on the issue of liability was not contrary to the manifest weight of the evidence. The evidence establishes actual knowledge of the conditions and knowledge that the conditions involved risks to children known to play on the premises. The jury was well warranted in finding foreseeability of harm. See Lance v. Senior, 36 Ill2d 516, 224 NE2d 231 (1967).

In Driscoll v. C. Rasmussen Corp., 35 Ill2d 74, 219 NE2d 483 (1966), we find a similar but distinguishable fact situation. In that case a trash pile near a construction site contained some paint or lacquer cans with paint or lacquer in some of them. The plaintiff in that case, a seven-year-old boy, playing on the pile, splashed some paint or lacquer on his clothing and was burned when it was ignited from a fire he and his friends had started in the vicinity. The Supreme Court held as a matter of law that the contractor was free from liability.

In so holding the court observed that the paint or lacquer was not explosive nor inherently dangerous although combustible. The trash pile was not inherently dangerous and could not reasonably be said to have been the proximate cause of the plaintiff’s injury. In the instant case the barrel with gasoline in it could reasonably have been found to constitute a dangerous condition— at least a fact issue was presented. Svienty v. Pennsylvania Railroad, 8 Ill App2d 360, 132 NE2d 83 (1st Dist 1956). The defendant Rune knew that children did, in fact, play at the building site. Indeed, the defendant had on prior occasions removed the gasoline barrel from the building site perhaps because of a recognition of the danger.

I recognize the necessity of drawing a line, on one side of which a defendant is exonerated from liability as a matter of law and on the other a question of fact is to be determined by the jury. In my judgment this case falls in the area of a factual determination. Again by reference to Lance, the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant must be considered. I would affirm the judgments of the trial court.