author: PRESIDING JUSTICE THOMAS MORAN

text:
    Julia E. Dumpert, Plaintiff-Respondent, v. Janet C. Liechty, Curtis Reichhold, and City of Wheaton, Illinois, Defendants-Petitioners.
    Gen. No. 69-33.
    Second District.
    October 14, 1969.

      Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, and Selwyn Coleman, of Roselle, for appellants.
    Rathje, Woodward, Dyer and Burt, of Wheaton, for appellee.
   PRESIDING JUSTICE THOMAS MORAN

delivered the opinion of the court.

A petition was allowed by this Court for leave to appeal from an order of the trial court granting a new trial.

The sole issue is whether the verdict returned by the jury was against the manifest weight of the evidence.

The plaintiff, a woman of 78 years, was walking north on the east side of Main Street as it crossed Front Street in Wheaton, Illinois. She was wearing black and was in the pedestrian crosswalk at the time the defendant Liechty’s car struck her. Although darkness had fallen, the intersection was well illuminated by overhead lights and by the lights of business establishments in the area.

Main Street has four lanes at this point; two lanes for northbound traffic and two lanes for southbound traffic. Front Street is a one-way eastbound street, approximately 51 feet wide, and runs parallel to a railroad track located to the south. Traffic control consists of a stop sign for eastbound traffic and one for southbound traffic. On occasion, however, special police officers are present to direct the pedestrian and vehicular traffic flow. The defendant, Reichhold, was such an officer at the time of the occurrence in question.

Four occurrence witnesses testified at the trial.

The defendant Liechty, accompanied by a passenger, was driving a Volkswagen southbound on Main Street and brought her vehicle to a stop at the intersection, activated her left turn signal and awaited the officer’s direction to proceed. The officer was standing in the center of the intersection, with a flashlight baton in his right hand, facing in a westerly direction. He turned his head toward her car and, with his baton parallel to the ground, motioned her to make a left turn. Liechty commenced to move, hesitated because of a northbound vehicle and then resumed negotiating her turn.

Liechty testified that, prior to commencing her turn, she kept watching for the officer to signal but that up to this time she did not look at the crosswalk; that she may have glanced at the crosswalk as she proceeded in the turn but did not see anything; that the officer kept motioning her to continue, that she did not see him look to the corner (from where the plaintiff started to cross the street) prior to his waving her to proceed; that she did not observe the officer signaling any pedestrians to cross the intersection; that at no time prior to the accident did she observe the plaintiff; that at the time of the impact, the plaintiff was midway between corners; that defendant was traveling between 3 to 5 miles per hour and stopped within a matter of inches; that at the time of the occurrence and when she got out of the car, there were no other pedestrians in the crosswalk; and that after the impact the plaintiff just slumped down into a sitting position.

Defendant Reichhold testified that, prior to directing the Liechty vehicle to turn left, he was facing west; that he glanced to the left to see if there was any more northbound traffic and happened to notice the corner in question for a brief moment; that his observation did not disclose any pedestrian on the corner nor walking north in the crosswalk; that he did not see the plaintiff at any time before the occurrence; that a slight noise directly behind him drew his attention to the impact; that he never used his left hand to direct traffic and at the same time used his right hand, which held the baton, to indicate that pedestrians should stop; that he would never use the wand to direct pedestrians because it confuses motorists; that he would speak to all pedestrians by saying, “You may cross,” “Yes, go ahead ma’am or go ahead, sir, you may cross”; that shortly before the occurrence a light flow of traffic was proceeding east on Front Street and the Main Street traffic was stopped; that when Front Street traffic cleared he blew his whistle, gave a signal for traffic to stop and looked around the intersection for pedestrians in order to allow them to cross; that there were no pedestrians on the corners; that after this he turned facing west, gave two blasts with his whistle and signaled with the baton for traffic to move south; that when he turned around to where the incident occurred, he did not see any other pedestrians in any portion of the crosswalk; and that as the Volkswagen passed him, it was not traveling more than 5 miles per hour.

The passenger in the Liechty vehicle testified that the officer signaled for them to make their turn and right after that, signaled the car in back of them to go straight, and then signaled them again to make their turn; that Liechty started to make her turn and the officer directed her to go straight; that she stopped and he signaled her again and she moved a little further; that the officer signaled her again to go straight so she stopped again; that on the third signal she almost completed making her turn; that the vehicle was traveling 3 to 5 miles per hour; that when she first saw the plaintiff, she was between the center and right headlight of the car; that Liechty stopped her car and jumped out before the plaintiff was down; that she did not see any pedestrians in the crosswalk; that when she got out of the car the plaintiff was still between the center of the car and the right headlight sitting on the ground facing north; that she asked the plaintiff if she was alright and the plaintiff responded that she was alright; that she did not remember the officer giving a whistle signal; and that she did not see the officer look to the corner, from which the plaintiff started to cross the street, either before or after the officer directed their vehicle to turn.

On direct examination the plaintiff testified that when she first arrived at the corner she waited for a signal from the police officer who was in the center of the intersection, facing east; that he circled the red baton for pedestrians to cross, there being a lot of pedestrians waiting on the corner with her; that there was no traffic moving at the time and that the officer signaled a car to the north which was the car that hit her. On cross-examination, the witness testified that prior to the time she stepped off the curb, as well as while she was crossing, she looked to see if traffic was coming; that she did not hear any whistle blow; that the officer just gave the “swing” of the baton one time for them to go and the other people started to cross; that she imagined there were five or six people ahead of her and possibly five behind her; that while crossing, the officer signaled the Volkswagen to turn left, although she did not see the officer signal; that the car was coming at a good rate; that it was two and one-half feet away from her when she saw it; that police officers, who arrived at the scene, took her to her apartment; that the next day she went to the hospital for x rays and on the sixth day following the accident she again went to the hospital; and that on the first day of her second hospital visit, she remained in bed, did not get up, walk around the room or move from the bed.

During cross-examination the plaintiff was confronted, on four different occasions, with contradictory statements taken at a discovery deposition. A reading of the transcript of testimony discloses that during the plaintiff’s testimony at trial she also made other contradictory statements. In addition, the defendant Liechty produced a witness who called upon a patient in the same room with the plaintiff on the first day of her second hospital visit. This witness testified that after the plaintiff was lifted into bed by attendants, who then left, the plaintiff got out of bed, went to the bathroom and, afterward, began unpacking and putting her things away. Further, the witness could not remember noticing the plaintiff limp.

The above is a résumé of the liability evidence produced at trial before a jury. The verdict found in favor of all defendants and the trial court, on a post-trial motion, granted the plaintiff a new trial as to all defendants, stating “. . . it is my opinion that the verdict was contrary to the manifest weight of the evidence. . . .” No error in the trial of the case is claimed.

The amended complaint, in one count, charged the defendant Liechty with negligence and, under another count, joined the defendants Reichhold and the City of Wheaton charging wilful and wanton misconduct.

Wilful and wanton misconduct has been defined in many ways by various court decisions. In Schneiderman v. Interstate Transit Lines, 394 Ill 569, 69 NE2d 293 (1946) at page 583 it was stated:

“A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

Later, in Mower v. Williams, 402 Ill 486, 84 NE2d 435 (1949), the Court followed a previous definition when quoting from Bartolucci v. Falleti, 382 Ill 168, 46 NE2d 980 (1943) when it said at page 490:

“ Til will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of a person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilf ulness.’ ”

We believe that the most recent declaration found in Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 211 NE 2d 720 (1965), wherein the Court, at page 488, readopted the definition found in the Schneiderman case and expressly refused to overrule the same, is the current and better definition for wilful and wanton misconduct.

Whether, in a particular case, the one charged has been guilty of wilful and wanton misconduct is a question of fact for the jury, Schneiderman v. Interstate Transit Lines, supra, and should only rarely be ruled upon as a matter of law. Larson v. Harris, 77 Ill App2d 430, 435, 222 NE2d 566 (1966), affd 38 Ill2d 436, 231 NE2d 421 (1967).

Negligence has been defined as “the omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do, or the doing of something which a prudent and reasonable man would not do.” Hack v. New York, C. & St. L. R. Co., 27 Ill App2d 206, 216, 169 NE 2d 372 (1960).

Whether, in a particular case, the one charged has been guilty of negligence is a question of fact for the jury, Kahn v. James Burton Co., 5 Ill2d 614, 623, 126 NE2d 836 (1955); any questionable or conflicting fact situation must be resolved in favor of the verdict, Hartman v. Goldblatt Bros., Inc., 19 Ill App2d 563, 565, 154 NE 2d 872 (1958); and an opposite conclusion must be clearly evident for a jury’s verdict to be manifestly against the weight of the evidence, Hoffman v. Wilson, 60 Ill App 2d 396, 407, 208 NE2d 607 (1965).

The question is not whether the trial judge would have reached a different conclusion but whether there was evidence which would support the jury’s conclusion. If so, then the trial court is unwarranted in interfering with the result. Roth v. Lissner Iron & Metal Co., 88 Ill App2d 352, 356, 232 NE2d 534 (1967).

Ordinarily, a new trial is granted in order to correct errors that occurred during the conduct of the trial. This is not so in the instant case, as the new trial was granted only on the ground that the verdict was against the manifest weight of the evidence. From a review of the record, the jury was faced with the credibility of witnesses and conflicting evidence as to the liability. It was their function to resolve both problems, which they did by their verdict. We, as a reviewing court, cannot say that in doing so the jury was unwarranted in its conclusion, or that such conclusion was against the manifest weight of the evidence, or that there were no reasonable grounds in the evidence upon which to base the jury’s verdict, or that an opposite conclusion is clearly evident, plain or indisputable or palpably erroneous and wholly unsupported by the manifest weight of the evidence. Jenkins v. Hechtman, 83 Ill App2d 72, 76, 226 NE2d 383 (1967); Green v. Smith, 59 Ill App2d 279, 283-284,207 NE2d 169 (1965).

Therefore, the judgment of the trial court granting a new trial is reversed and this cause is remanded with directions to enter judgment on the verdict.

Reversed and remanded with directions.

DAVIS and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: GOLDENHERSH, P. J.

license: Public Domain

text:
    In the Matter of the Guardianship of Wallis David Arnold, a Minor. Nancy C. Finch, Petitioner-Appellant, v. David Arnold, Defendant-Appellee.
    Gen. No. 68-127.
    Fifth District.
    October 24, 1969.

      James A. Lawder, Jr., Wolff, Jones & Lawder, of Murphysboro, for appellant.
    John Ladd Dean, Richard A. Zellner, Hahn, Loeser, Freedheim, Dean & Wellman, of Cleveland, Ohio, for appellee.
   GOLDENHERSH, P. J.

Petitioner, Nancy C. Finch, appeals from the order of the Circuit Court of Union County dissolving a temporary injunction, and dismissing her petition that she be appointed guardian of the person of Wallis David Arnold, her minor child.

Petitioner is a resident of Anna, in Union County, former wife of defendant, David Arnold, and mother of Wallis David Arnold. She filed a petition seeking her appointment as guardian of Wallis David’s person, and for a temporary injunction enjoining defendant, David Arnold, from interfering with her custody of the child. The court issued a writ of injunction enjoining defendant “from molesting or in any way interfering with” petitioner’s “care, custody and control” of the child “during the pendency of this action or until further order of court.”

Defendant, David Arnold, entered a special appearance and moved for dissolution of the temporary injunction, dismissal of the petition for appointment of a guardian, and an order directing return of Wallis David to defendant.

The motion was set for hearing, and it appears from the affidavits of the parties and exhibits offered in support of defendant’s motion, that petitioner and defendant were formerly husband and wife, and are the parents of Wallis David, who was born in January 1959. In December 1960, the Court of Common Pleas of Cuyahoga County, Ohio, granted defendant a divorce from petitioner and awarded him custody of Wallis David. In 1961 petitioner appeared before the Court of Common Pleas and filed a motion to modify the award of custody. The motion was denied. A second motion filed in 1965 resulted in entry of an order granting her visitation rights. A subsequent proceeding in 1967 resulted in “reaffirmation” of the order entered in 1965.

Subsequent to entry of the order in 1965, each visit by Wallis David to petitioner’s home was preceded by execution of a written memorandum setting out the time, place and duration of the visit.

Defendant’s employer transferred him from Cleveland, Ohio, to South Bend, Indiana. In April 1968, the parties entered into an agreement that Wallis David would visit petitioner in Anna from April 8, 1968, to April 13,1968. Petitioner agreed to return him to defendant at the South Bend exit of the Indiana Toll Road at 8:00 p. m. on April 13. Her petition for appointment of a guardian and for temporary injunction was filed April 11.

The trial court entered an order which provides in part:

“1. That the relevant and undisputed facts necessary for the court’s determination of this controversy are set out in Defendant’s Exhibit A-8, with attached affidavits and exhibits, and the same are incorporated herein by reference as findings of fact.
“2. . . .
“3. . . . this court does not find in the evidence, pleadings, affidavits or exhibits any such extraordinary facts or circumstances contrary to the best interests and welfare of the minor, or such that would render the father unfit or his home unsuitable, that have materially or substantially changed since the Ohio decree was modified in 1965, and reaffirmed by the parties on July 11, 1967, which would warrant this court asserting jurisdiction to redetermine the question of custody as fixed and supervised by the Ohio Forum, one that can now or at any time in the future modify custody if warranted, and further that the Court finds that the circumstances under which this child came to Elinois for a temporary five day visit should not in equity and good conscience be used as a base for jurisdiction to determine either guardianship, injunctive relief or change of custody.
“4. That the Ohio Court had jurisdiction of the parties, the child, and the subject matter when the original decree was entered in 1960, and subsequently when the plaintiff voluntarily submitted herself to the jurisdiction of the Ohio Court in applications for modification of custody in 1961,1965, and 1967; the issue of the best interests of the child were presented to that court on four occasions; and accordingly that the decree should be given full faith and credit under the constitution and the principles of comity between the States of Elinois and Ohio.
“5. That it is not necessary to the best interests of the minor that a guardian of his person be appointed by this court.
“Accordingly, it is the order of this Court that the minor, Wallis David Arnold, shall be forthwith returned to his father, David Arnold, by his mother, Nancy C. Finch; that her petition for appointment of guardian of the person of said child, filed April 11, 1968, be and the same hereby is dismissed; and that the temporary injunction and restraining order of this Court entered April 11,1968, be and the same hereby is ordered dissolved and set aside.”

Petitioner contends the court erred in dismissing the petition for appointment of a guardian without a hearing on the merits, and in deciding the matter of the custody of the minor on a preliminary motion attacking the jurisdiction of the court. She argues the action of the court is anomalous in that it exercised jurisdiction to make affirmative orders affecting the subject matter of the litigation while granting the prayer of the motion to dismiss.

Able counsel have filed comprehensive briefs citing many authorities in support of arguments directed to substantive and jurisdictional questions. In our view of the case, however, the issues presented are simply whether the circuit court has jurisdiction over the subject matter and the parties, and assuming jurisdiction, whether it abused its discretion in declining to exercise it.

The circuit courts of Illinois have plenary jurisdiction over the estates and persons of infants in Illinois, regardless of the domicile of the child. In re Guardianship of Smythe, 65 Ill App2d 431, 213 NE2d 609. The exercise of that jurisdiction must be tempered with reasonable limitations, Whitney v. Madden, 400 Ill 185, 79 NE2d 593. The circuit court is vested with the discretionary power to decline to exercise its jurisdiction, and absent an abuse of discretion, its judgment will not be disturbed. Cotton v. Louisville & N. R. Co., 14 Ill2d 144, 152 NE2d 385; The People ex rel. Chesapeake & O. Ry. Co. v. Donovan, 30 Ill2d 178, 195 NE2d 634; McKinney v. Hougland Towing Co., 109 Ill App2d 99, 248 NE2d 322.

The record reflects an Ohio decree, several subsequent proceedings, and the child’s presence in Illinois in accordance with an agreement between the parties based upon that decree, as modified. The cases and treatises are replete with arguments in support of the rule that based upon the facts here presented petitioner should seek relief in Ohio, and the corollary proposition that to hold otherwise encourages forum shopping, destroys such stability as emanates from a decree fixing custody, and in effect rewards conduct violative of the existing decree and the agreement made in reliance thereon.

We have examined petitioner’s affidavit filed in support of her petition, and do not find therein a basis to hold the trial court abused its discretion in refusing to exercise jurisdiction. We are aware of the possibility that defendant’s removal to Indiana might present procedural difficulty in enforcement of a modification of the Ohio decree but, again, are unable to say that this establishes abuse of discretion on the part of the trial court.

We next consider petitioner’s contention that the action of the trial court is an anomaly in that while declining to consider the cause on the merits it ordered the return of Wallis David to defendant. To have done otherwise would have resulted in the minor’s remaining in Illinois, thus depriving defendant of his custody as effectively as would a judgment favorable to petitioner. Under the circumstances the court acted properly, and finding no abuse of discretion, the order is affirmed.

Order affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Appellant, v. Frank J. Vlcek and Lydia P. Vlcek, Appellees.
    Gen. No. 69-3.
    Second District.
    October 24, 1969.
    Certificate of importance and rehearing denied Dec. 1, 1969.
    William V. Hopf, State’s Attorney of Du Page County, and Helen C. Kinney, Assistant State’s Attorney, for appellant.
    Irving Goodman, of Chicago, and Carl O. Bue, of Elmhurst, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendants, Frank J. and Lydia P. Vlcek, were charged with arson. They filed a motion pursuant to section 114-11 of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, par 114-11), to suppress certain of their statements on the ground that they were not voluntary. The trial court granted the motion and the State has appealed.

The defendants’ motion alleged that John Kennedy, a representative of their insurance carrier, asked them to come to his office relative to settling their fire insurance claim against the carrier; that Kennedy intimidated and threatened them while at his office, denied their request to see a lawyer, and advised them that they better answer his questions if they expected to collect on their insurance; that the intimidation confused the defendant, Frank J. Vlcek; that there may have been a tape recording of the conversation; and that any statements obtained by Kennedy from the defendants were involuntary and in violation of their constitutional rights.

Section 114-11 of the Code of Criminal Procedure relates to motions to suppress confessions and provides in part:

“(a) Prior to the trial of any criminal case a defendant may move to suppress as evidence any confession given by him on the ground that it was not voluntary.
“(b) The motion shall be in writing and state facts showing wherein the confession is involuntary.
“(c) If the allegations of the motion state facts which, if true, show that the confession was not voluntarily made the court shall conduct a hearing into the merits of the motion.
“(d) The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of the voluntariness of the confession must be made in the trial court.”

This matter proceeded before the trial court in a somewhat bizarre manner. Neither the defendants nor the State observed the usual trial procedures designed to specify and limit the issues under consideration. The defendants’ motion charged that the statements obtained by Kennedy were involuntary and in violation of their constitutional rights in that they were denied the right to talk to a lawyer and be advised of and concerning their rights. However, the motion did not allege that Kennedy was a law enforcement official of any type, but rather asserted that he was a representative of their fire insurance carrier.

At the beginning of the hearing, counsel for the defendants orally asserted that the foregoing grounds constituted a denial of the defendants’ constitutional rights under Miranda v. Arizona, 384 US 436, 16 L Ed2d 694 (1966). The State’s Attorney advised the trial judge that the motion presented a legal question — whether statements made to a nonlaw enforcing official can be suppressed under Miranda on the theory that the defendants were not advised of their constitutional rights. The judge indicated that Kennedy had appeared before the grand jury, and he believed that this was a sufficient connection to bring the case within the Miranda decision. Counsel for the defendants stated that he wanted to put the defendants on the stand. The judge replied that this met with the approval of the court and asked the State’s Attorney if he had any objection to this procedure. The State’s Attorney said that he had no objection but stated that following the testimony he would want to submit some law, and that he would not object to the defendants amending their motion if they wanted to allege that Kennedy was acting as a law enforcing officer.

Counsel for the defendants also related that he thought he had better amend his motion, although this was never, in fact, done. He advised the trial judge that there would be some evidence that Kennedy had said he was a fire marshal. The court indicated that a fire marshal was a law enforcement officer of the State. To this, counsel for the defendants replied that “He wasn’t the Fire Marshal but he purported to act as such.”

The defendants were then placed on the stand and testified concerning their interrogation by Kennedy in regard to their insurance claim, his intimidation of them, his refusal to permit them to talk to any attorney, his failure to advise them of their rights, and his representation that he was with the fire marshal’s office. At the conclusion of the testimony, the State’s Attorney reiterated that there remained before the court the legal question of whether the absence of the allegation that Kennedy was a law enforcement officer, or of evidence other than that he represented that he was, was sufficient to sustain a motion to suppress; and he indicated that absent the legal argument then before the court, he would subpoena Kennedy.

With the case in this posture, the trial judge stated that the matter was then before him for decision, and entered an order finding that Kennedy held himself out to be connected with the fire marshal’s office and was clothed with the apparent authority of that office; that the defendants were not advised by Kennedy of their right to remain silent or not be interrogated, of their right to consult an attorney, or that anything they said might be used against them; and that the statements were, thus, inadmissible under Miranda.

Presently, the Supreme Court has not held that a person — other than a law enforcement officer — must advise one interrogated of his constitutional rights before any statement made by the latter can be admissible against

him. In Miranda (384 US, p 444, 16 L Ed2d, pp 706, 707), it carefully limited its holding:

**. . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. . . .”

In Harrison v. United States, 392 US 219, 20 L Ed2d 1047 (1968), also cited by the defendants, the majority held that testimony of the defendant at a prior trial could not be read into evidence at a subsequent trial because the defendant’s earlier testimony was the result of the prior trial court erroneously admitting into evidence the inadmissible confessions. The court reasoned that, but for the use of the inadmissible confessions in evidence, the defendant would not have testified, and that the impelled resulting testimony was the fruit of the poisonous tree.

Mr. Justice White, in his dissent, notes the factor significant in the case at bar — that the procedural safeguards outlined by Miranda are applicable to law enforcement officials to secure the privilege against self-incrimination from wrongful Government action. In criticizing the majority in Harrison (392 US, p 230, 20 L Ed2d, p 1056), he stated:

“The court, however, seems to overlook all of these problems in adopting an overly simple and mechanical notion of ‘fruits’ to which I cannot subscribe. In the view of the Court, if some evidentiary matter is causally linked to some illegal activity of the Government — linked in that broad ‘but for’ sense of causality which rarely excludes relevant matters which come later in time — it is a ‘fruit’ and excludable as such. This strictly causal notion of fruits is, of course, consistent with the dictum in Silverthorne Lumber Co. v. United States, 251 US 385, 392, 64 L Ed 319, 321, 40 S Ct 182, 24 ALE 1426. (1920), that ‘(i)f knowledge of (the facts) is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it. . . .’”

In People v. Shipp, 96 Ill App2d 364, 239 NE2d 296 (1968), the defendant was accused of disorderly conduct relating to actuating a false fire alarm in the school. He was called to the principal’s office and interrogated therein by the principal. He made an oral confession without being warned or informed of any constitutional rights to remain silent. At the trial, the principal was called to testify with reference to this oral confession, and the trial court sustained an objection thereto because the confession was obtained without complying with the Miranda requirements. The Appellate Court held that the calling of the student to the principal’s office for questioning was not an arrest; that the student was not in the custody of a law enforcement official; and that these circumstances did not come within the scope of the Miranda rule.

In the case at bar, the defendants were not restrained by Kennedy, whom, as the defendants allege, they saw for the purpose of settling their insurance claim. They remained in his office, apparently, because of the promise that their insurance claim would then be settled and because of threats to the job security of the defendant, Frank J. Vleek, if he didn’t answer questions.

While the testimony indicates that Kennedy held himself out to the defendants to be a fire marshal, if, in fact, he was not, then this is of no more significance under Miranda than if a bank clerk, under the guise of being a police officer, should obtain an incriminating statement from a depositor, in that the custodial procedural safeguards of Miranda have application to law enforcement officers only. In the case at bar, the defendants’ counsel advised the court that Kennedy was not a fire marshal. The truth of this statement cannot be ascertained from the record.

The defendants, as indicated by their motion and statements to the court, were relying upon Miranda, and the court suppressed the statements under that authority. Yet, the admonitions required by Miranda are applicable to law enforcement officials — not private persons— even though the private persons may be posing as law enforcement officials.

Under the posture in which the motion was presented, heard and decided by the trial judge, we believe that the motion should have been denied. There was neither allegation nor proof that Kennedy was a law enforcement official, or that he was acting upon the direction or with the approval of such officials. Absent this, the finding of the trial court that the defendants should have been given the admonitions required by Miranda is improper. Broberg v. Mann, 66 Ill App2d 134, 137,213 NE2d 89 (1965).

The cause should be remanded for a new hearing on the defendants’ motion to suppress, and they should be given leave to amend their motion if they so desire. It may be that under proper allegations and proof, the defendants can show that Kennedy was, in fact, a fire marshal, or that any statements made by the defendants were given under conditions such as to render them otherwise involuntary or untrustworthy. We express no opinion on this since that determination should be made by the trial court after full hearing of the issues of the action as raised by proper pleadings, and under the evidence presented by both parties litigant. Therefore, the cause is reversed and remanded for further hearing consistent with the views expressed herein.

Reversed and remanded with directions.

MORAN, P. J. and SEIDENFELD, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James R. Sweeney, Defendant-Appellant.
    Gen. No. 69-5.
    Second District.
    October 24, 1969.

      J. Daniel King, of Rockford, for appellant.
    Philip Reinhard, State’s Attorney, of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

James R. Sweeney, the defendant, was committed to the Director of the Department of Public Safety in 1961, as a sexually dangerous person. Thereafter, he filed a number of petitions for writ of recovery under the provisions of section 9 of the Sexually Dangerous Persons Act (Ill Rev Stats 1967, c 38, par 105-9). The last petition was filed in June of 1968, wherein he demanded a jury trial. The matter was heard before a jury; the defendant was represented by private counsel; and the jury returned a verdict finding that he had not recovered from being a sexually dangerous person. The defendant has appealed from the order entered on that verdict.

He contends that: (1), the expert opinion of one of the psychiatrists should not have been considered by the jury in that there were insufficient facts recited by the witness on which to base his opinion; (2), the Special Progress Report was hearsay and should not have been admitted in evidence; (3), the burden of proof should have been upon the State to prove beyond a reasonable doubt that the defendant had not recovered and the burden should not have been on the defendant to prove recovery by a preponderance of the evidence; (4), the State failed to meet this burden of proof; and (5), the instructions to the jury were incorrect and incomplete.

At the outset, it should be noted that the defendant demanded and had a jury trial, but did not file a post-trial motion. Section 3.01 of the Sexually Dangerous Persons Act (Ill Rev Stats 1967, c 38, par 105-3.01), provides that the proceedings under the Act are civil in nature, and that the provisions of the Civil Practice Act, including the provisions for appeal, and all rules adopted pursuant to the Civil Practice Act, “shall apply to all proceedings hereunder except as otherwise provided in this Act.”

We think it appropriate to note that under section 68.-1 (2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 68.1(2)), the failure to present a post-trial motion should preclude review. While our courts have been cautious to assure a defendant under these proceedings the same procedural safeguards as an accused in a criminal proceeding, we also have given more than lip service to the legislative mandate that the provisions of the Civil Practice Act are to apply, and that the manner of and limitations on review are those expressed in the Civil Practice Act. The People v. Capoldi, 37 Ill2d 11, 16, 17, 225 NE2d 634 (1967); The People v. Fish, 36 Ill2d 220, 223-225, inch, 221 NE2d 637 (1966); People v. Kennedy, 101 Ill App2d 91, 94, 242 NE2d 278 (1968).

At the time of Capoldi, supra, the Civil Practice Act provided that an appeal must be perfected by the filing of a notice of appeal within 60 days from the date of the judgment. The defendant had not filed the notice of appeal within the prescribed time. In rejecting the argument that to deny the right of appeal under the circumstances would be a denial of the same procedural safeguards available to an accused in a criminal trial, the court, at page 16, stated: “The difficulty with this argument is that we are not dealing here with a procedural safeguard, but with an express and studied legislative direction as to the manner of and limitations on review which we are not at liberty to ignore.”

The rationale of Capoldi is compelling, particularly where the matter before the court is the petition for a writ of recovery as opposed to the original petition seeking to have the person declared a sexually dangerous person. However, since we are dealing with a case involving the question of the continued confinement of the defendant, and in view of the concern expressed by our courts in this type of case (e. g., The People v. Nastasio, 19 Ill2d 524, 528, 168 NE2d 728 (1960); The People v. Capoldi, 10 Ill2d 261, 267, 268, 139 NE2d 776 (1957); People v. Beshears, 65 Ill App2d 446, 458, 213 NE2d 55 (1965)), and because the State has not objected to a consideration of the appeal on the merits, we will, without establishing a precedent, review the contentions raised by the defendant on the merits. See: People v. Capoldi, 37 Ill2d 11, at 15, 225 NE2d 634 (1967). Our conclusion to review the case on the merits is further indicated by the decision in The People v. Flynn, 8 Ill2d 116, 133 NE2d 257 (1956). At page 120, the court stated:

“In the case at bar there is nothing to indicate that either the prosecutor or the court called on defendants to specify in writing the points on which they based their motion, and the State must therefore be held to have waived such requirement. . . . We conclude that since the State failed to object to the absence of a written motion it has waived any question as to its form and defendants are not precluded from assigning the present matters as errors.”

Objection was made by the defendant to the opinion expressed by one of the psychiatrists, Dr. J. G. Graybill. The doctor testified as to his professional qualifications and background, and there were no objections with reference to his qualifications. He then testified that he examined the defendant on four different occasions— twice in 1961 and twice in 1968; that in March of 1968 he did a clinical evaluation and psychological testing of the defendant; and that in November an additional clinical examination and evaluation was done. He was then asked his opinion as to whether the defendant was still a sexually dangerous person. There was no objection to this testimony and he answered in the affirmative.

The defendant may not permit evidence to be admitted at the trial without objection and urge error in the admission and consideration of such evidence for the first time on appeal. The People v. Sinclair, 27 Ill2d 505, 508, 509, 190 NE2d 298 (1963); Illinois Bldg. Authority v. Dembinsky, 101 Ill App2d 59, 64, 242 NE2d 67 (1968). Further, it is obvious from the record that the opinion of the doctor was based upon facts and knowledge derived from his examination of the defendant, and his opinion was proper for consideration by the jury. The People v. Covey, 34 Ill2d 195, 197, 198, 215 NE2d 220 (1966).

Objection was made by the defendant to the admission of the Special Progress Report from the Psychiatric Unit at Menard State Penitentiary as hearsay evidence. However, it is specifically required by statute that this sociopsychiatric report be prepared upon the filing of a petition for writ of recovery and be considered upon the hearing on the petition. Ill Rev Stats 1967, c 38, par 105-9; People v. Haywood, 96 Ill App2d 344, 345, 346, 239 NE2d 321 (1968). This statutory exception is but one of many exceptions to the hearsay rule. The report is prepared by the psychiatrist, sociologist, psychologist and warden assigned to the institution where the defendant is confined. Like most exceptions to the hearsay rule, this report has inherent guarantees of trustworthiness in both the number and professional character of the persons involved in making the report. The findings and opinions of these persons are important to the determination to be made in cases such as this. Expert assistance in the determination, particularly from those who have been in close contact with the defendant, is invaluable. It is apparent that the information obtained from these reports would be unavailable if these same persons were required to appear throughout the state and testify in all cases wherein a petition for writ of recovery hearing was held. This alone is a compelling reason for the admission of the report into evidence. See: Cleary, Handbook of Illinois Evidence, Second Edition, § 17.6. We find no error in admitting this report into evidence, as required by statute.

It is here urged by the defendant that the burden of proof in this case was upon the State and not upon him. However, it has been specifically held that where one has been adjudged sexually dangerous, the presumption obtains that this condition continues until evidence of recovery is adduced; and that the burden of proof shifts to the defendant in subsequent proceedings to prove by a preponderance of the evidence that he is no longer sexually dangerous. The People v. Fish, supra, 222; The People v. Couvion, 33 Ill2d 408, 411, 211 NE2d 746 (1965). Also see: People ex rel. Drury v. Catholic Home Bureau, 34 Ill2d 84, 95, 213 NE2d 507 (1966).

The defendant complains of error in the giving of certain instructions which he tendered. It is well settled that a party may not challenge on appeal the propriety of instructions tendered by him. People v. Count, 106 Ill App2d 258, 263, 246 NE2d 91 (1969).

He further claims error in the refusal of the court to give the following instruction:

“The Court instructs the jury that there is in force in the State of Illinois a Statute, which reads as follows:
“ ‘If the patient is found to have recovered, the Court shall order that he be discharged. If the Court finds that the patient appears to be no longer sexually dangerous, but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered, the Court shall enter an order permitting said person to go at large subject to such conditions and such supervision by the Director as in the opinion of the Court will adequately protect the public.’
“If you find that James R. Sweeney appears to be no longer sexually dangerous, but that is (sic) is impossible to determine with certainty under conditions of institutional care that he has fully recovered, you will being (sic) in a verdict to the effect.”

And, he also complains of the refusal of the court to give a verdict based upon this portion of the statute.

We believe that the failure of the court to give the tendered instruction and verdict form was error. There was testimony from one of the psychiatrists to the effect that it was not possible to determine with certainty, under the conditions of institutional care, whether the defendant had recovered. The jury could also have arrived at this conclusion from a consideration of all of the other evidence in the case.

In determining whether there is sufficient evidence to require the giving of an instruction, we are not called upon to weigh the evidence or determine if we believe the evidence should lead to a particular conclusion. The defendant was entitled to the benefit of any testimony favorable to his theory or theories of the case as shown by the total evidence. If there was but slight evidence relating to a particular theory of his case — yet such evidence might permit a jury to find on it — he was entitled to an instruction then on that theory. The People v. Kalpak, 10 Ill2d 411, 424, 140 NE2d 726 (1957); The People v. Matter, 371 Ill 333, 338, 339, 20 NE2d 600 (1939); 14A, ILP, Criminal Law, § 702.

On redirect examination, counsel for the defendant asked Doctor Hamann, who had testified on direct that he thought the defendant had recovered from being a sexually dangerous person, the following question, which was answered in the negative: “Doctor, is it possible to determine with certainty under conditions of institutional care whether or not Mr. Sweeney has recovered, to determine this with certainty?” We believe that this testimony was ample to support the foregoing instruction and the theory of the defendant’s case set forth therein.

There were three possible conclusions for the jury to reach under the statute and the evidence: (1), it could have determined that the defendant had recovered and he would be entitled to be discharged; (2), that he had not recovered, and his confinement would continue; or (3), that it appeared that he was no longer sexually dangerous, but that this could not be determined with certainty under conditions of institutional care. If the jury reached the latter conclusion, the defendant would then be permitted to be released from confinement, subject to certain conditions and supervision imposed by the court.

The defendant was entitled to have this theory presented to the jury. It was not presented to the jury due to the refusal of the trial court to instruct and submit a verdict on this aspect of the case.

Since this case must be remanded for a new trial, we will comment on the form of the foregoing tendered instruction. The portion of the instruction containing the quotation from the statute refers to the “court” making certain findings. It is possible that this reference in the statute to the “court” making certain findings could be confusing to the jury where, as here, the defendant demanded a jury trial on these factual issues. On a retrial of this case, it would be more appropriate for an instruction to be given which defines the three possible determinations that the jury can make under the statute, and which advises the jury of the verdict it should render in each respective circumstance without quoting from the statute.

The order of the trial court is reversed and the cause is remanded for a new trial, consistent with the views expressed herein.

Reversed and remanded.

MORAN, P. J. and SEIDENFELD, J., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Burton C. Fletcher, Plaintiff-Appellant, v. State Security Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 68-200.
    Second District.
    July 30, 1969.
    Rehearing denied December 3, 1969.
    Kamin, Stanley, Burtker and Steinberg, of Chicago, for appellant.
    Robert L. Brody and George J. Gore, of Chicago, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

In this case, the trial court allowed the defendant’s motion to dismiss the complaint and the plaintiff appeals.

The complaint alleges that on February 24, 1967, the plaintiff was insured by the defendant under a “Family Combination Automobile Policy” containing uninsured motorist coverage and that he fully complied with the terms and agreements set forth therein. It further alleges, that on the above date, the plaintiff was involved in a motor vehicle collision with an auto operated by one Ed G. Lienhardt who was negligent and failed to comply with the Financial Responsibility Law (Ill Rev Stats 1965, c 95½, § 7-101 et seq.). Because Lienhardt was not insured, the plaintiff contends that the “uninsured automobile” provision of his policy should be effective. It is also alleged that plaintiff attempted to commence arbitration proceedings by naming an arbitrator but that the defendant had failed to name an arbitrator. The complaint prays that the court select an arbitrator to determine the rights of the plaintiff and the defendant and assess attorney’s fees and costs. A copy of the policy was attached to the complaint.

The defendant filed a motion to dismiss alleging that the uninsured motorist provision of its policy did not. apply while the plaintiff was driving his employer’s truck. This motion was allowed. A subsequent motion to vacate the allowance was denied. It appears that at the time of the accident, the plaintiff, who was employed by the United States Post Office Department, was driving a mail truck furnished to him by his employer for use during his daily route.

The question presented by the appeal is whether or not the insured, under the policy provisions in this case, was afforded uninsured motorist coverage while operating his employer’s vehicle which was regularly furnished to him.

Plaintiff maintains that this injury is clearly covered by the terms of the language of the policy and not precluded by the exclusionary clause. Defendant maintains that there is no coverage because the plaintiff was not operating a nonowned automobile at the time of this occurrence and, therefore, coverage is excluded.

To understand the issues it is necessary to set out some portions of the policy in question.

Part IV contains six separate divisions, each with many subdivisions which, inter alia, contain the following:

“Coverage J — Family Protection (Damages for Bodily Injury). To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, . . . sustained by the insured, . . . .”

The following paragraph, entitled “Definitions,” provides:

“The definitions under Part I, except the definition of ‘insured’ apply to Part IV, and under Part IV:
U
• • •
“ ‘insured automobile’ means:
U
• • •
“(d) a non-owned automobile while being operated by the named insured; . . . .”

The Exclusion provision of the policy provides:

“Exclusions. This policy does not apply under Part IV:
“ (a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile; . . . .”

Part I (Liability) of the policy, which is referred to in the Definitions section of Part IV, contains the following definition:

“ ‘non-owned automobile’ means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile; ....’’

The coverage provision, when read alone, provides coverage to the plaintiff when struck by the operator of an uninsured automobile for damages occasioned by bodily injury in such a collision. If this were the only provision of the policy there would be no question. Paragraph (a) of (Exclusions) excludes coverage while the insured occupies an automobile owned by him or a relative other than an “insured automobile.” The postal truck in question was not owned by the insured or a relative and, therefore, the language outside the parentheses, as above quoted, is not applicable. However, the language inside the parentheses provides that he is covered when he is occupying “an insured automobile.”

Under the section entitled “Definitions,” an “insured automobile” is defined in four subparagraphs. Paragraph (d), pertinent here, identifies a “non-owned automobile while being operated by the named insured” as an “insured automobile.” A “non-owned automobile” is not defined in Part IV of the policy; however, under the last quoted section, the definitions set forth under Part I apply. Part I (Liability) defines a non-owned automobile as one “not owned by or furnished for the regular use of either the named insured or any relative . . . .”

With this background, our attention is drawn to the case of Voelker v. Travelers Indemnity Co., 260 F2d 275, (CA 7th, 1958), wherein a provision very similar to the one in question, concerning a liability insurance policy defining a nonowned automobile, was ruled upon. In that case the plaintiff was an Illinois National Guardsman traveling from Chicago to an encampment in Minnesota. While driving a military truck in a convoy he struck an automobile. The auto operator brought suit against him. He filed suit for declaratory judgment in the Circuit Court of Cook County against the defendant insurer praying for a determination of whether or not the insurer had a duty to defend him in the suit brought by the motorist. The cause was transferred to the Federal District Court on the grounds of diversity of citizenship. There the trial court held in favor of the defendant-insurer, and the plaintiff appealed.

The Circuit Court of Appeals held that the National Guard vehicle furnished to him was a vehicle furnished for the regular use of the insured even though he had not previously driven this particular truck but that similar vehicles were furnished him while acting in the performance of his duties as a member of the National Guard. The court also reviewed cases from other jurisdictions which had arrived at the same conclusion. The reasoning of the court in the Voelker case is persuasive and applicable to this case.

Accordingly, we hold that the mail truck used by the plaintiff was furnished for his regular use and, consequently, not a "non-owned automobile” as defined by this specific policy and, therefore, excluded from coverage under the uninsured motorist provision of the defendant’s policy.

The judgment of the trial court will, therefore, be affirmed.

Judgment affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


author: GOLDENHERSH, P. J. EBERSPACHER, J., GOLDENHERSH, P. J.

text:
    Ralph Washburn, Plaintiff-Appellee, v. Terminal Railroad Association of St. Louis, a Corporation, Defendant-Appellant.
    Gen. No. 68-16.
    Fifth District.
    July 31, 1969.
    Rehearing denied and supplemental opinion October 2, 1969.

      EBERSPACHER, J., dissenting.
    Roberts, Gundlach & Lee, of East St. Louis (Richard E. Boyle, of counsel), for appellant.
    Chapman, Strawn & Kinder, of Granite City (Morris B. Chapman, of counsel), for appellee.
   GOLDENHERSH, P. J.

Defendant, Terminal Railroad Association of St. Louis, appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $60,000.

Plaintiff’s complaint, as amended, alleges a cause of action based upon the Federal Employers’ Liability Act (45 USCA 51, et seq.) arising out of an occurrence in April 1964, in defendant’s C. D. Yard near East St. Louis, while plaintiff was employed as a switchman. In its answer, as an affirmative defense, defendant pleaded the execution of “a full and complete release.” Plaintiff replied, averring that the release was not binding because it was executed “under a misapprehension of fact” and an erroneous conception of the nature and extent of the disability suffered; the release is supported by a totally inadequate consideration, and resulted from defendant and its agent overreaching plaintiff, and the release was procured by fraud and deception.

In its case, defendant called plaintiff under section 60 of the Civil Practice Act. During the interrogation of plaintiff, plaintiff’s counsel stated “our only contention about this release is the mutuality of a mistake of fact of this medical condition.”

Plaintiff testified that after he was released from treatment for the injury he was told there was nothing wrong with his knee, it was just a bruised muscle and he could go back to work when he felt up to it. When he talked to William P. Bittle, defendant’s claim agent, Bittle told him the doctor said all he had was a bruised muscle.

In rebuttal, plaintiff read from Bittle’s discovery deposition, as follows:

“Q. The report which you had, would that indicate to you that there was any residual in this injury that was suffered?
“A. I said ‘No’ and he made no complaint as I recall.
“Q. At the time you took the release, the contemplation was that, or your understanding at least, was that he had recovered from this injury?
“A. Right, he had been working two days.”

The trial court, holding that the release was taken under a mutual mistake of fact as to the nature and extent of plaintiff’s injuries, directed a verdict on the issue, and defendant, as its first assignment of error argues that in so doing, it erred.

The validity of a release attacked in an action brought under the Federal Employers’ Liability Act is governed by federal law. Dice v. Akron, C. & Y. R. Co., 342 US 359, 96 L Ed 399, 72 S Ct 312. The burden of proving the release invalid because of a mutual mistake of fact is on the plaintiff, Callen v. Pennsylvania R. Co., 332 US 625, 92 L Ed 242, 68 S Ct 296, and it must be proved by a preponderance of the evidence, Purvis v. Pennsylvania R. Co., 198 F2d 631. There is nothing in the Federal Employers’ Liability Act or the decisions of the Supreme Court of the United States which precludes the direction of a verdict in a proper case, Rogers v. Missouri Pac. R. Co., 352 US 500, 1 L Ed2d 493, 77 S Ct 443.

The only evidence of record on the issue is the testimony of plaintiff, and the admissions contained in Mr. Bit-tie’s deposition. This case is clearly distinguishable from Callen v. Pennsylvania R. Co. (supra), upon which defendant principally relies, in that in Callen the claim agent testified that he determined the amount of the settlement on the basis of his belief that there was no liability, and the defendant strenuously contested the issue of whether plaintiff was suffering any further disability. Here the defendant offered no evidence on either the issue of liability or plaintiff’s injuries, its evidence being limited to the release, and plaintiff’s testimony when called under section 60.

We have reviewed the authorities cited by defendant (Dice v. Akron, C. & Y. R. Co., 342 US 359; Chicago & N. W. Ry. Co. v. Curl, 178 F2d 497 (CA 8th); Cratsley v. Pittsburgh & Lake Erie R. Co., 272 F Supp 330 (WD Pa); Rice v. Trunkline Gas Co., 323 F2d 394 (CA 7th); Purvis v. Pennsylvania R. Co., 198 F2d 631 (CA 3rd); Graham v. Atchison, T. & S. F. R. R. Co., 176 F2d 819 (CA 9th), 71 ALR2d 82), and conclude that even though the release purports to release defendant from all claims for injuries, symptoms and conditions, present and future, connected with, or arising out of the occurrence in question, and further recites that plaintiff fully informed himself of its contents and knew what it contained, if its execution resulted from a mutual mistake of fact as to the extent and permanence of plaintiff’s injuries, it was invalid. Under the circumstances, the trial court did not err in taking the issue of the validity of the release from the jury.

Defendant contends that the court erred in admitting testimony that in 1958, some six years prior to plaintiff’s injuries, there was a change in the procedure for the maintenance of the part of defendant’s C. D. Yards where plaintiff was working at the time he was injured. What we said with respect to this issue in Hollis v. Terminal R. Ass’n of St. Louis, 72 Ill App2d 13, 218 NE2d 231, is here applicable, and the court did not err in admitting the testimony.

Defendant contends that the court erred in its rulings on objections, and in denial of its motion for mistrial, because of allegedly inflammatory and improper remarks made by plaintiff’s counsel during final argument. In an opinion and order entered upon denial of defendant’s post-trial motion, the trial court reviewed each of the incidents, remarks and rulings of which defendant complains. What this court said with respect to similar contentions in Wells v. Gulf, M. & O. R. Co., 82 Ill App2d 30, 34, 226 NE2d 662, is here applicable, and we cannot say that the trial court’s rulings constitute an abuse of discretion.

The record shows that plaintiff, at defendant’s request, was examined by Dr. Lee T. Ford. The parties agree that the request was made in lieu of a motion under Supreme Court Rule 17-1 (now Rule 215) and copies of the doctor’s report were furnished in compliance with the rule. Over defendant’s objection, the court permitted plaintiff’s counsel to read from the report certain of the doctor’s findings on the theory that they were admissions against interest made by defendant’s agent.

Defendant contends, that the doctor is not an agent whose report can be held to be an admission which binds defendant, and the court erred in its ruling. Plaintiff, relying upon Nollau Nurseries, Inc. v. Industrial Commission, 32 Ill2d 190, argues the evidence was properly admitted.

To determine whether Nollau is controlling here, it is necessary to compare the statute which authorized the examination in Nollau, and the provisions of Supreme Court Rule 215. Nollau was a workman’s compensation case, and the Workmen’s Compensation Act (c 48, § 138.1 et seq., Ill Rev Stats 1967) states that the employer shall provide medical and surgical services (§ 138.8(a)) and contains detailed provisions for medical examinations, furnishing of reports, etc. (§ 138.12). The physician, whose report was in issue in Nollau, treated the petitioner, and in the course of the treatment performed surgery on his leg. It is not clear from the opinion whether, absent the treatment furnished under section 138.8(a), a report based solely upon an examination conducted under section 138.12, would have been admissible as an admission against interest.

It is apparent from the language of Supreme Court Rule 215 that the right to a physical examination is not absolute, and the party requesting it can “suggest,” not select, the physician by whom it shall be conducted. It is equally apparent from the opinion in People ex rel. Noren v. Dempsey, 10 Ill2d 288, that the intended purpose of the authority asserted, and the rule adopted, is to enable a litigant to obtain information as to the nature and extent of the injuries and the physical or mental condition in controversy. Neither the rule, nor any opinion of an Illinois court of which we are aware, defines the status of the examining physician.

The only case found in our research of the issue presented is State of Missouri ex rel. St. Louis Public Service Co. v. McMullan, (Mo), 297 SW2d 431, 62 ALR2d 1281, in which the Supreme Court of Missouri held that an order for a physical examination stems from an exercise of the circuit court’s inherent discretionary power and not from an absolute right of the applicant, and the physician appointed to conduct the examination acts for the court, and is not an agent for either party. (See also 23 Am Jur2d, page 589, and 25A CJS, page 147; Jackson v. Whittinghill, 39 Ill App2d 315, 324, 188 NE 2d 337.)

A determination of the issue presented does not require us to decide the status of the examining physician. The purpose of discovery is the ascertainment of truth and the expedition of the disposition of litigation, Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410. To this end the existence and limits of liability insurance have been made discoverable, People ex rel. Terry v. Fisher, 12 Ill2d 231, 145 NE2d 588, but the information elicited is not admissible in evidence. The nature and extent of a plaintiff’s injuries are at least as relevant, and their disclosure to the litigants is at least as likely to effect settlement, as the existence of liability insurance. For this reason it appears to us that a defendant should be in a position to use discovery procedures to obtain the information without the risk that the report of the examining physician may be admitted in evidence against him.

In Watts v. State of Indiana, 338 US 49, 93 L Ed 1801, 69 S Ct 1347, at page 1349, Mr. Justice Frankfurter said “And there comes a point where this court should not be ignorant as judges of what we know as men.” As men, and lawyers, this court knows that if the report of a physician who makes an examination under the authority of Rule 215 is treated as an admission against interest, one of two patterns will develop; either there will be no requests for examinations, or only those examiners will be used who are unlikely to find anything of significance to report. Either result defeats the purpose of the discovery process.

In The People v. Speck, 41 Ill2d 177, 242 NE2d 208, at page 200, the Supreme Court states: “A witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice does not render him incompetent to testify for the other party.” Nothing prevents either party from calling the examining physician and assuming his being called, his report can be used in the same manner as other types of prior statements. In our opinion Nollau is not authority for admission of portions of the report in this case, and in holding them admissible, the trial court erred.

Having found error, we must determine, whether, and to what extent, it was prejudicial. The evidence erroneously admitted described plaintiff’s condition as of the date of the examination, expressed the opinion that he had sustained a tear of the medial meniscus, that exploratory surgery was indicated and the symptoms described might be lessened by removal of the medial meniscus. It was in no way relevant to the issue of liability.

Defendant tendered, and the court gave, an instruction in the form of IPI 21.07. Since the jury assessed damages, we may safely assume they decided that defendant was liable. The prejudicial effect, if any, of the error could only be reflected in the amount of the verdict.

Defendant argues that the verdict is excessive and prays, in the alternative, for a remittitur. The amount of damages to be assessed is peculiarly a question of fact for the jury and this court will not substitute its judgment for that of the jury. However, it cannot be determined to what extent, if any, the error affected the amount of the verdict, Justice requires that the issue of damages be determined without intervention of error, and in the exercise of the power vested in this court by Supreme Court Rule 366 we affirm the judgment insofar as it determines the issue of defendant’s negligence, and remand the cause to the Circuit Court of Madison County with directions to vacate the judgment entered on the verdict, enter judgment for plaintiff on the verdict finding the issues in favor of plaintiff, and grant defendant’s motion for a new trial solely on the issue of damages. We are cognizant of the fact that in a Federal Employers’ Liability Act case, defendant is entitled to prove contributory negligence in diminution of damages, and for its guidance upon retrial, refer the circuit court to Cromling v. Pittsburgh & Lake Eire R. Co., 327 F2d 142.

Judgment affirmed, cause remanded for new trial on the issue of damages only.

MORAN, J., concurs.

EBERSPACHER, J.,

dissenting:

I would reverse and remand for a new trial.

The argument of plaintiff’s counsel was in my opinion, designed to appeal to and incite such prejudice as deprived the defendant of a fair trial. It included accusations of improper motives, lack of integrity, dishonesty and deceit, and comparisons to communistic attacks, and criminals who do not take the witness stand in their own defense, misstating the law with reference to inferences that may be drawn from the failure of an accused to testify on his own behalf. In order to further incite the jury’s prejudice, in a case where the claimed injury occurred as a result of the defendant’s negligence in covering a hole in the yards, and the injury did not occur in escaping the wheels of a train, counsel inferred that the mishap of stepping on a loose board might have resulted in plaintiff’s legs being cut off, and speculated as to the number of future injuries of that nature which defendant might inflict on its employees. As we said in Vandaveer v. Norfolk & W. R. Co., 78 Ill App2d 186, 208, 222 NE2d 897, 907, where we adopted the language of Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 122, 126 NE2d 731, 735:

“. . . The constitutional right of a trial by jury is not a license to counsel to indulge in abusive and prejudicial conduct to gain a verdict, nor does it grant any privilege to embarrass, belittle and abuse an adversary before a jury to such an extent that the hope of the adversary to obtain respectful consideration at the hands of the jury is destroyed or seriously jeopardized.”

The impropriety of such argument is not erased by sustained objections. Underwood v. Pennsylvania R. Co., 34 Ill2d 367, 215 NE2d 236.

SUPPLEMENTAL OPINION UPON DENIAL OF PETITION FOR REHEARING

GOLDENHERSH, P. J.

Plaintiff has petitioned for rehearing and relying upon Keystone Steel & Wire Co. v. The Industrial Commission, 42 Ill2d 273, 246 NE2d 228, argues that we erred in holding portions of Dr. Ford’s report to be inadmissible.

Our conclusion that a report under Supreme Court Rule 215 is distinguishable from one made under section 138.12 of the Workmen’s Compensation Act (c 48, § 138.12, Ill Rev Stats 1967) emanates from the differences between the rule and the statute, and does not depend upon whether the physician treated, or merely examined, the plaintiff.

Under the statute, the examination, upon request, is mandatory, under the rule it is discretionary with the trial court; under the statute, the employer, already under a duty to provide medical treatment (138.8(a)), selects the examiner, under the rule the party seeking the examination may “suggest” the physician; the rule provides a means of discovery of information not otherwise available, while the statute provides for the employer, already under a statutory obligation to furnish medical treatment and therefore, possessed of knowledge with respect to the employee’s condition, a method of obtaining an opinion as to the nature, extent and probable duration of the injury and the amount of compensation due.

After careful consideration of plaintiff’s contentions, we adhere to the opinion, and the petition for rehearing is denied.

MR. JUSTICE MORAN dissents, being of the opinion that under Keystone Steel & Wire Co. v. The Industrial Commission, 42 Ill2d 273, 246 NE2d 228, the evidence was properly admitted.


author: MR. JUSTICE STAMOS

text:
    Wm. O’Donell, Inc., Plaintiff-Appellee, v. Bowfund Corporation, Defendant-Appellant.
    Gen. No. 52,239.
    First District, Fourth Division.
    March 19, 1969.

      William G. Myers, Rothschild, Hart, Stevens & Barry, of Chicago, for appellant.
    Sidley & Austin, of Chicago (Robert A. Downing and Alexander C. Allison, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

On May 30, 1962, William O’Donell, Inc. and the Bowman Dairy Company (hereinafter referred to as defendant) entered into an agreement whereby plaintiff would lease eight stainless steel tank trailers and eight tractor-trucks to defendant for the period of five years for a rental price of $6,000 per month.

Plaintiff brought suit against defendant to obtain reimbursement for the State of Illinois use tax paid with respect to the aforementioned equipment. Plaintiff claimed a right to such reimbursement from defendant by virtue of the provisions of the lease agreement.

This appeal is taken from an order granting plaintiff’s motion for summary judgment in the amount of $6,799.42 and costs. The issue presented for review is whether the tax for which plaintiff seeks reimbursement is within the lease provision relied upon by plaintiff.

The lease in general reflected the rental, provisions regarding maintenance, repairs, insurance, employment of drivers, a provision allowing defendant to terminate the lease on 30 days’ notice and related matters not pertinent to the issue before this court.

The provision of the lease which is the crux of this appeal is paragraph three (3) which provides as follows:

“3. Lessee (defendant) shall pay all license fees, taxes, fuel, oil and greasing expenses arising out of its use or operation of the equipment.”

The parties embarked upon their respective obligations under the lease for a period of two and one-half years until January 1, 1965, at which time plaintiff terminated the lease at the request of defendant.

Beginning in March of 1965, correspondence was exchanged between plaintiff and the Department of Revenue, State of Illinois, concerning the liability of plaintiff to pay the Illinois use tax on all of the leased equipment which plaintiff had purchased outside the State of Illinois. Plaintiff on June 23, 1965, paid the sum of $6,181.29 plus the sum of $618.13 as penalty for the use tax to the Department of Revenue, State of Illinois.

On several occasions after termination of the lease and before plaintiff made this payment, plaintiff notified defendant that under the provision of their lease agreement, specifically paragraph three (3), defendant was obliged to make the payment or in the alternative to reimburse plaintiff if plaintiff made the payment. Defendant refused to make any payment and the present litigation ensued.

Defendant in its Answer to plaintiff’s Complaint denied that its possession of the equipment under the lease agreement constituted a taxable event or transaction for which it could be adjudged liable for the payment or reimbursement of any use tax, or that paragraph three (3) of the lease imposed an obligation upon defendant to pay the use tax.

Defendant argues that the use tax for which plaintiff seeks reimbursement is not a tax “. . . arising out of its (defendant’s) use or operation of the equipment” and if plaintiff had purchased the equipment in Elinois a sales tax would have been imposed on plaintiff at the time the purchase was made.

The purpose of the use tax is to prevent the evasion of the Retailers’ Occupation Tax when purchases of tangible personal property used in Elinois are made outside the State and to protect the local retail merchant against diversion of his business to out-of-state sellers. Turner v. Wright, 11 Ill2d 161, 142 NE2d 84 (1957).

The issue before this court is whether the use tax is a tax “. . . arising out of its (defendant’s) use or operation of the equipment.” We think not.

“Use” is defined for purposes of the Use Tax Act, III Rev Stats, c 120, § 439.2 (1961) as follows:

“ ‘Use’ means the exercise by any person of any right or power over tangible personal property incident to ownership of that property. . . .”

Plaintiff was obligated to pay the Blinois use tax as the “legal user” of the equipment within the terms of the statute. Plaintiff argues however, that it is entitled to reimbursement by the terms of the lease agreement.

The lease agreement must, if at all possible, be construed so as to give effect to the intention of the parties at the time of contracting. Cedar Park Cemetery Ass’n v. Village of Calumet Park, 398 Ill 324, 75 NE2d 874 (1947). The meaning of an unambiguous agreement is to be determined from the language of the agreement and it is not the province of the court to make an agreement for the parties or to add terms. Diederich v. Rose, 228 Ill 610, 81 NE 1140 (1907). Plaintiff admits in its brief that the language of the lease agreement is clear and unambiguous.

The use tax is not a tax which arises out of the use or operation of tangible personal property, but rather it is a tax placed upon the exercise of powers or rights incident to ownership. A lessee merely has the right to physical possession of the leased equipment during the term of the lease. The rights of title and ownership in leased equipment remain in the lessor as stated in 8 Am Jur2d, Bailments, § 70 :

“The typical bailment does not involve any change in the title or ownership of the bailor in the subject matter but only a change with respect to the possession and the interests and rights dependent thereon.”

In his affidavit Mr. O’Donell, president of plaintiff, stated that pursuant to the agreement with defendant, plaintiff “purchased certain tractor-trailer combinations as set forth in the May 30, 1962 agreement.” On cross-examination he testified that from April to July 1, 1962, two Mack tractors and two of the trailers were used by plaintiff for hauling milk from Wisconsin to Chicago. If plaintiff had purchased the new equipment in Illinois it would have been obligated to pay the Retailers’ Occupation Tax whether it operated the equipment in Rlinois through its own employees or whether it leased the equipment to others. Since it appears that the new equipment (twelve pieces) was purchased outside of Illinois, the “use” by plaintiff was the exercise of ownership by leasing. Similarly by leasing the other equipment (four pieces) for operation in Elinois plaintiff lost the exemption it had under section 3 of Elinois Use Tax Ill Rev Stats, c 120, § 439.3 (1961). Since the Elinois use tax is a tax on the exercise of the rights and powers incident to ownership, we cannot find that defendant in agreeing to pay “. . . all license fees, taxes, fuel, oil and greasing expenses arising out of its use or operation of the equipment” undertook to pay the use tax. Plaintiff became obligated to pay the use tax as soon as it brought the equipment into Elinois and delivered it to the defendant pursuant to the agreement. Defendant did not agree to pay taxes for which plaintiff was obligated by reason of its ownership and use but only taxes arising out of defendant’s use and operation.

It should be noted that the equipment lease agreement was merely a month-to-month lease since the defendant had the right under the terms of the lease to terminate the lease by giving 30 days notice. To assume that the defendant would agree to pay the use tax based upon the entire purchase price of the equipment would be absurd. The plaintiff’s conduct was also inconsistent with the contention that the defendant agreed to pay the use tax. The question of the use tax did not arise until some months after the lease was terminated. If the parties had intended that the defendant was to pay the use tax, plaintiff as the “legal user” would have filed the use tax return at the inception of the agreement and billed the defendant in the normal course of business.

Since defendant did not move in the trial court for a dismissal of the suit for failure to state a cause of action, we cannot consider its request that we dismiss the case.

The judgment is reversed and the cause remanded with directions to deny the motion of plaintiff for summary judgment and to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

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

ON REHEARING

Having reconsidered this cause we adhere to our opinion as previously filed.

Reversed and remanded with directions.

      The defendant-appellant, Bowfund Corporation, was formerly known as the Bowman Dairy Company.

       The pertinent part of this section provides:
      “To prevent actual or likely multistate taxation, the tax herein imposed shall not apply to the use of tangible personal property . . . which is acquired outside this State and which is moved into the State for use as rolling stock moving in interstate commerce.”


author: MR. JUSTICE SMITH MR. JUSTICE CRAVEN

text:
    Joan L. McGinnis, Plaintiff-Appellee, v. Cosmopolitan National Bank and Trust Company, Individually and as Trustee Under Trust No. 4542, and T. K. Handing, Defendant-Appellant.
    Gen. No. 51,502.
    First District.
    August 1, 1969.
    CRAVEN, J., dissenting in part.
    Kralovec, Sweeney, Marquard & Scoby, of Chicago (Charles V. Kralovec and Glenn H. Prohaska, of counsel) , for appellant.
    Roland C. Upton and George F. Witteman, of Chicago (Samuel Levin, of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of this court.

Plaintiff’s judgment for more than $60,000 for personal injuries entered on a jury’s verdict is here appealed and the following errors by the trial court are asserted: (1) The Illinois Structural Work Act, Ill Rev Stats 1955, c 48, § 60, et seq. does not apply to the facts in this case, (2) the trial court erroneously permitted the plaintiff’s attorney to read to the jury from the Illinois Revised Statutes and the ordinances of the City of Chicago, and (3) the trial court erred in denying a motion for judgment n. o. v. or in the alternative a new trial. The case must be reversed and remanded.

The defendant Handing was the beneficial owner of the property and also the president of the Amplifone Corporation. The legal title was in the defendant Cosmopolitan National Bank. The suit was dismissed as to the bank. Plaintiff was an employee of the Amplifone Corporation and after her coffee break at 10:00 p. m. returned to her winding machine on the first floor. She heard a co-worker call her by name and the sound seemed to come from a hole in the floor which had been cut for the purpose of installing a dumbwaiter or elevating hoist. She walked over to the opening in the floor, placed her hand on a protective wooden board about three feet high, leaned over this barrier and fell into the basement and sustained severe injuries. A special interrogatory submitted to the jury found the plaintiff was not guilty of any contributory negligence which proximately contributed to her injuries.

The plaintiff’s first count charges a wilful violation of the Structural Work Act and Count II alleges that the defendant negligently violated certain provisions of the Chicago Municipal Code during the construction of the dumbwaiter as well as general common law negligence. The record shows that the reason the dumbwaiter was being put in the building was to enable the employees of Amplifone to move certain material from the basement to the first floor with greater ease. There is no nexus between the installation of this dumbwaiter and any of the provisions of the Structural Work Act.

Elastic as the Structural Work Act has become, we do not think that fairly interpreted it can possibly relate to the facts in this case. In Bradley v. Metropolitan Sanitary Dist. of Greater Chicago, 56 Ill App2d 482, 206 NE2d 276, it was held that the Structural Work Act does not apply to an excavation for a drop manhole. The excavation or the dirt sides of this hole caved in killing the plaintiff’s decedent. It was there held that a recovery under the Structural Work Act was not permissible. It was there properly held that a hole in the ground is not a mechanical device within the meaning of the Structural Work Act and by the same token it does not appear to us that a hole in the floor is a mechanical device for use in the alteration of a building. Plaintiff attempts to relate these facts to § 66 of the Act which basically provides that if elevating machines or hoisting apparatus are used in a building during the course of construction for the purpose of lifting materials to be used in such construction, then the contractors or owners shall cause such opening to be enclosed or fenced on all sides by a substantial barrier or railing at least eight feet in height. Plaintiff cites Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551, as authority for this proposition. In that case, there was no dispute but that the plaintiff fell into a shaft which was used for a hoisting machine admittedly then being used in the construction or alteration of the building. The opinion further notes that the elevators were operated by hoisting machines for the purpose of lifting materials used in the construction of the building. Claffy clearly relates to the Structural Work Act. In the case at bar, the hoist or dumbwaiter was not being used for the purpose of elevating any materials in the construction or alteration of the building, but was to be the structure itself. It thus falls outside the perimeter of § 66, for the simple reason that it is not yet in existence.

Section 60 of the Structural Work Act is likewise relied on by the plaintiff. Section 60 of the Act refers to all scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances erected or constructed by any person, firm or corporation “. . . for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure. . . .” Admittedly the hole in the floor will become a permanent part of the structure. Admittedly the dumbwaiter may be said to be within the definition of “hoists” or other mechanical contrivances. However, neither is to be used in the erection, repairing or alteration of this structure. It is the alteration. It is the repair. The dumbwaiter has not yet become a hoist and we find some difficulty in including a hole in the floor as part or parcel of any of the items described in the statute. Plaintiff cites Louis v. Barenfanger, 39 Ill2d 445, 236 NE2d 724, as authority, but it is factually far removed from the factual situation here considered. That case held that the mere fact that the so-called scaffold is a permanent part of the building or is to become a permanent part of the building does not necessarily preclude its use as a scaffold if it was so intended. This is still a long, long way from the plaintiff’s position that this hole in the floor is either a scaffold or a hoist or was so intended. The failure to provide a safe barricade for this hole in the floor is founded on common-law negligence and not on a violation of the Structural Work Act. It is thus clear to us that the trial court either should have directed a judgment in favor of the defendant on Count I of the complaint or entered a judgment notwithstanding the verdict on that complaint. It was manifestly error to submit it to the jury.

Aside from our holding that the Structural Work Act is not applicable to the facts in this case, the trial court over the objection of the defendant permitted the plaintiff to read certain portions of the ordinances of the City of Chicago and also parts of sections 60, 66 and 69 of the Structural Work Act. This was highly improper and prejudicial. It is stated in ILP Trial, § 87, “Reading law to jury. It is improper for counsel to read the law to the jury, or to read to the jury from law books or reported cases, and the court may properly prohibit counsel from so doing.” In Marriage v. Electric Coal Co., 176 Ill App 451, the court stated at p 454:

“In civil cases the law is given to the jury by the court, and while counsel have the right to present their view of the law in argument, they have no right to read from law books to the jury.”

Plaintiff cites no authority for her position. The impropriety and the irregularity of reading the Structural Work Act to a lay jury is quite obvious. The 1967 Annotated Statutes contain reasonably close to 200 citations to cases arising out of § 60 alone. It is quite clear, therefore, that its meaning has not been quite clear either to the members of the bar or to the courts. It would seem to follow, therefore, that the application of this statute to the particular facts in this case would be more apt to be cloudy to the jury than clear. In addition, the plaintiff’s attorney referred to the fact that they should remember that he had read from “the big red book.” While it is proper for counsel to state in general terms what his theory of recovery or defense may be, it should remain for the court to give the proper instructions to the jury and not counsel. Proper trial practice dictates that it is for the court to instruct as to the law and not counsel. The procedure here followed was in itself reversible error.

And we think it patent that the judgment in this case cannot stand or that the defendant can be said to have had a fair trial under the law on this record. Accordingly, the case is remanded to the trial court with directions to enter a judgment n. o. v. on Count I of the complaint dealing with the Structural Work Act and to grant a new trial on Count II involving common-law negligence. It is so ordered.

Reversed and remanded.

TRAPP, P. J., concurs.

CRAVEN, J., concurs in part and dissents in part.

MR. JUSTICE CRAVEN

concurring in part and dissenting in part:

The action of plaintiff’s counsel in reading extensively to the jury certain portions of the ordinances of the city of Chicago and certain sections of the Structural Work Act was improper and prejudicial, and in my view leaves this court with no alternative but to reverse and remand this case for a new trial. Accordingly, I agree with the result reached in the majority opinion.

I must respectfully note my disagreement, however, with that portion of the opinion that holds that the Structural Work Act is not applicable.

As I understand the Structural Work Act and the many cases interpreting it, it is designed to give protection to persons, not necessarily only construction workmen, in and about construction, alteration or demolition of buildings. The plaintiff here was not working in connection with the specific alteration on the premises but she was a worker on the premises and was injured by reason of a faulty barricade around a hole, and thus the Act has application. See: John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill 331, 141 NE 739, 38 ALR 559 (1923); Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551, affd 228 US 680, 57 L Ed 1022, 33 S Ct 715 (1911).

The majority opinion, likewise, notes that the hoist or dumbwaiter was not being used for the purpose of elevating materials in the construction but was part of the structure itself, thus seemingly stating that a permanent part of a structure is not within the purview of the Structural Work Act. The majority so held in Parizon v. Granite City Steel Co., 71 Ill App2d 53, 218 NE2d 27 (5th Dist 1966). For the reasons stated in my dissent in that case I cannot agree with the majority here. In Louis v. Barenfanger, 39 Ill2d 445, 236 NE2d 724, cert denied, 393 US 935, 21 L Ed2d 271, 89 S Ct 296 (1968), the Illinois Supreme Court held that a permanent structure used as a stay or temporary support is not excluded from the Act even though it is a permanent part of the structure.

We are here concerned with the alteration of a building to construct a device to hoist or convey work products from the first floor of a cottage used in manufacturing to the basement. In connection with this alteration a hole or opening had been cut into the floor, and the evidence indicates that it was approximately 27 x 20 inches. The evidence further indicates that there was some plywood on one side, and on another to which employees on the floor had ready access, there was a barricade of sorts consisting of a piece of lumber, apparently a one-by-six, about three feet from the floor, attached to two uprights. There was nothing between this one-by-six and the floor. If, as the court held in Louis, the failure to provide scaffolding can be the basis of a cause of action under the Structural Work Act, the failure to provide adequate and safe barricades around a hole in the floor during the alteration of a structure can likewise be a violation of the Act. Accordingly, while I concur in the result reached, I dissent from that portion of the opinion which, in my view, construes the Structural Work Act contrary to its intended purpose.


author: STOUDER, P. J.

text:
    Austin L. Hade and Gladys Hade, Plaintiffs-Appellants, v. Milford Jontz and Barbara Jontz, Defendants-Appellees.
    Gen. No. 68-32.
    Third District.
    September 22, 1969.
    Rehearing denied October 21, 1969.

      Watts C. Johnson, Peterson, Johnson & Martin, of Princeton, for appellants.
    Roger V. Pierson, of Princeton, for appellees.
   STOUDER, P. J.

This action was brought in the Circuit Court of Bureau County to recover damages for failure to pay a promissory note. The trial court sitting without a jury, entered judgment for Defendants from which judgment Plaintiffs have appealed.

Defendants, Barbara and Milford Jontz, husband and wife, indicated to L. D. Spaulding, Jr., an attorney, representing the estate of Mrs. Jontz’s mother, that they wished to buy a house belonging to said estate. The purchase price of the house was established at $13,500 of which the purchasers needed to borrow $8,500. Spaulding through one Charles Mabry, contacted Plaintiffs, Austin and Gladys Hade, husband and wife, who, after examination of the premises agreed to make the loan. A check in the amount of $8,500 was drawn by Gladys Hade payable to L. D. Spaulding and delivered to Spaulding. On July 1, 1958, Spaulding drew the necessary instruments to convey the property to defendants including a trust deed to himself as trustee which contained the recital that said Trust Deed was executed and delivered to secure the payment of one promissory note, dated July 1, 1958, payable to the order of defendants and by defendants duly endorsed, said note being for the sum of $8,500, due seven years from date with interest at five percent per annum and prepayment privileges of $100 or any multiple thereof on any interest paying date. This trust deed was recorded in the office of Recorder of Deeds for Bureau County.

According to plaintiff, Hade’s testimony, he went to Spaulding’s office a few days after June 26, 1958, and received a note purportedly executed by defendants, dated July 1,1958, in the principal sum of $8,500, with interest at five percent payable semiannually due five years from date. Plaintiffs testified that this note was placed in their bank box and removed every six months to record the interest when paid and further that interest payments were received by them from Spaulding on January 6 and July 29, 1959, and January 4 and July 1, 1960. Plaintiffs testified that no further payments were ever received by them either on interest or principal. Hade also testified that he made other loans through Spaulding including the renewal of a loan subsequent to the loan involved in this case.

Defendants testified that they at no time knew the identity of the lenders, that the endorsement on the back of the note was a forgery, that they never signed the back of any note and that the note in question was paid in full by them to Spaulding on November 30,1959.

Sometime during the latter part of 1960 or the early part of 1961, criminal charges were brought against Spaulding who was convicted in March of 1961 of several acts of forgery and embezzlement, sentenced to the penitentiary in Joliet and disbarred. In January of 1961, Defendants retained Attorney Roger V. Pierson, telling him they had never received their cancelled note. Pierson secured from Spaulding’s office a release of the 1958 Trust Deed which release was recorded.

Testimony of another attorney who practiced in the area was to the effect that the practice followed by Spaulding was normal for legal practice in the area and was done to conceal the identity of the lender from the borrower. A letter from a handwriting expert was introduced over objection of the plaintiffs, which letter stated that while the signatures on the trust deed appeared to be those of Barbara and Milford Jontz, those on the face of the note and the endorsement thereof appeared to be forgeries.

Plaintiffs’ claim that a pretrial motion for Admission of Fact as to the authenticity of the signatures was made by them to which defendants filed an unverified answer neither admitting nor denying the genuineness of the signatures on the face of the note but unequivocally denying that the endorsement was genuine.

Plaintiffs argue that failure to answer under oath to a notice to admit, admits the facts contained in the notice that Spaulding, as agent for defendants, had the authority to execute and deliver the note in question and that payment by defendants before maturity to a person who did not have custody of the note was at the peril of the borrowers and cannot defeat the claim of the holder of the note. Defendants argue that Spaulding was at all times the agent of plaintiffs whose interest remained undisclosed to defendants until April, 1961, and that defendants proved payment to Spaulding which is a defense to the action.

In the view we take of this case, it is apparent that Spaulding was acting as agent for plaintiffs for the purpose of accepting payments from defendants. We believe this case is indistinguishable from Hoiden v. Kohout, 12 Ill App2d 161, 138 NE2d 852, in which the court of review reversed the decree of the trial court in favor of the lender. Plaintiffs had made other loans through Spaulding and the evidence relating to the course of con-" duct was sufficient to warrant the conclusion that Spaulding was the plaintiffs’ agent. Plaintiffs at all times knew the identity of defendants and could at any time have notified defendants that future payments were to be made to plaintiffs. Defendants, on the other hand, at no time knew of the interest of plaintiffs and were quite justified in making payments to Spaulding unless and until notified to do otherwise. As between two innocent parties, one of whom must sustain a loss occasioned by the wrongdoing of a third party, the loss must be sustained by that party who could have prevented the loss, in the instant case plaintiffs.

We cannot accept the argument that the loan being paid before maturity affected the above proposition. Since Spaulding was authorized to deal with the loan as though he were the lender, it goes without saying that he had the authority to accept the payment as he did.

The evidence concerning the note upon which this action was brought was conflicting. There is doubt as to whether the note is genuine, there is doubt as to whether it is the note referred to in the trust deed and there is doubt as to whether it is the note which defendants admit signing. These doubts were resolved by the trial court in defendants’ favor and we are not disposed to dispute the trial court’s finding in view of the conflict in the evidence.

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

Judgment affirmed.

ALLOY and RYAN, JJ., concur.