author: MR. PRESIDING JUSTICE LYONS

text:
    Verna Irene Crofts, Plaintiff-Appellant, v. Board of Education of City of Chicago, a Body Politic and Corporate, Defendant-Appellee.
    Gen. No. 52,332.
    First District, Second Division.
    January 21, 1969.

      Ligtenberg, Goebel & DeJong, of Chicago (John Ligtenberg, of counsel), for appellant.
    James W. Coffey, of Chicago (John T. Mehigan and Richard E. Girard, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The plaintiff, Yerna Irene Crofts, appeals from an order denying her motion for summary judgment and granting a motion for summary judgment presented by the defendant, Board of Education of the City of Chicago (hereinafter referred to as the Board). Judgment was entered in favor of the defendant, against the plaintiff, and the cause was dismissed.

In her amended complaint at law for declaratory judgment, money due, and other relief, the plaintiff alleged, inter alia, that she had been a certificated teacher in and for the public schools of the City of Chicago from 1922 to 1964; that in 1934 she was awarded the degree of Master of Arts from the University of Illinois with a major in English; that in 1956 she was awarded a Fulbright Scholarship by the United States government to teach English in Syria during the 1956-57 school year whereby the Board granted her a special leave of absence for that period; that while waiting in Greece on this assignment, the plaintiff contracted poliomyelitis requiring her to return to the United States where she underwent hospitalization and treatment for several months; that on July 13, 1957, the plaintiff resigned as a teacher effective as of February 7, 1957; that on February 9, 1960, the Board granted the plaintiff a temporary teaching certificate in high school English effective February 15, 1960, at Spalding High School (a school for physically handicapped students providing for persons who have difficulty in ambulation) which assignment was cancelled by the Board on February 24,1960.

Continuing, the complaint alleged that within three years succeeding the effective date of her resignation, the plaintiff recovered her health, was in full possession of all her faculties, and was able to function in a normal manner as a high school English teacher, except that she had lost the use of her legs due to poliomyelitis and was paralyzed from the waist down, making it necessary for her to use braces and crutches or to go about in a wheelchair; that she applied for reinstatement as a teacher possessing a regular teaching certificate and did so within three years after the effective date of her resignation; that on April 13, 1960, the Board adopted a resolution which extended the validity of the plaintiff’s regular certificate to September 15, 1960; that prior to September 15, 1960, the Board of Examiners of the Board of Education of the City of Chicago refused to reinstate this certificate and on September 14, 1960, the plaintiff filed a petition for a writ of mandamus against the Board; that on December 14, 1960, the defendant again awarded the plaintiff a temporary high school English teaching certificate, limited, on the advice of the Director of Medical and School Health Services, to an assignment on a temporary basis to a school which had physical facilities such as ramps, wide halls, elevators and other similar conveniences to aid the plaintiff who was able to get around in a wheelchair; that the plaintiff was assigned to teach and did teach at Spalding High School beginning on or about January 3, 1961, and that she was scheduled for an annual health examination during the period of her employment which was authorized by her temporary teaching certificate; that on December 15, 1960, the mandamus petition was dismissed by stipulation of the attorneys for both sides; that the plaintiff continued to teach at Spalding High School from 1961 to June, 1964, pursuant to temporary teaching certificates issued by the defendant from time to time and after passing annual health examinations; that the plaintiff reached the mandatory retirement age of 65 in 1967, but was not employed by the Board for the school years 1964-65,1965-66, and 1966-67.

The complaint concluded with a prayer that the plaintiff be issued a regular teacher’s certificate and that a money judgment be entered in her favor with statutory interest equal to the difference between the substitute teacher’s salary actually paid the plaintiff pursuant to the temporary teaching certificates and the salary to which she was entitled as the alleged holder of a regular teacher’s certificate for the period from January 3, 1961, to June, 1964, when the plaintiff was employed at Spalding High School, as well as for the period of June, 1960, to December, 1960, when the plaintiff was either employed at the Board’s Bureau of Curriculum or was unemployed; and, in addition thereto, that a money judgment with statutory interest be entered in favor of the plaintiff for the school years 1964-65 through and including 1966-67 during which period of time the plaintiff was denied an assignment, but when she was allegedly entitled to a salary as the holder of a regular certificate to teach high school English, since she had not been dismissed pursuant to the statutes of Illinois pertaining to a teacher possessing tenure.

In its answer, the Board admitted, inter alia, that the plaintiff contracted poliomyelitis while in Greece awaiting service in Syria pursuant to the Fulbright Scholarship grant; that the plaintiff resigned effective February 7, 1957, but, further answering, the Board alleged that under its Rules (section 4-27), the plaintiff’s regular teacher’s certificate remained valid for a period of three years from the effective date of such resignation, meaning that her regular teacher’s certificate terminated on February 7, 1960, (i. e., plaintiff lost tenure on that date and with it, the rights of a regular teacher regarding statutory dismissal procedures). Furthermore, the Board admitted the physical handicap of the plaintiff and stated that before her regular teacher’s certificate had expired, the plaintiff was examined by the Board’s doctors on four separate occasions. These physicians noted that the plaintiff had complete paralysis of her left leg and almost complete paralysis of her right leg and she should not attempt to leave her wheelchair as she greatly increased her chance of slipping or falling when she attempted to walk with braces or crutches. The answer also alleged that the plaintiff was examined on seven other occasions between 1960 and the date of her last employment in 1964 and her physical condition was found to be unchanged, although she was able to stand with the use of crutches and could use the crutches to walk, but with difficulty.

Continuing, the answer stated that at no time after the resignation of the plaintiff, effective February 7, 1957, was a recommendation made to the Board of Examiners that the plaintiff be reappointed as a teacher on a regular certificate, nor subsequent to February 7, 1957, was she reappointed as a teacher on a regular certificate pursuant to the Rules of the defendant Board; that the plaintiff’s temporary employment at the Spalding High School was on a temporary teaching certificate and was based on the plaintiff’s plea that she needed three more years of teaching service to qualify for the maximum pension; that the plaintiff was so employed, for the additional reason that she was not found medically qualified for appointment to any teaching position except at Spalding High School, which is specially equipped with ramps, wide halls and elevators. Furthermore, the answer stated that the resolution of the Board on April 13, 1960, which purported to extend the validity of the plaintiff’s regular teacher’s certificate to September 15, 1960, was a nullity, because under the defendant’s Rules (section 4-27), the plaintiff’s regular certificate had terminated due to the lapse of time and her inability to pass a health examination before this resolution was adopted and hence the certificate could not be legally revived by any action of the Board. In conclusion, the answer admitted that the plaintiff was employed at Spalding High School from January to June, 1961, and the 1961-62 through and including the 1963-64 school years, but on a temporary teaching certificate and on a temporary basis due to her physical condition, as she could not and did not perform the duties of a high school English teacher on a regular teaching certificate, nor was she entitled under the Board’s Rules (section 4-27) to be so assigned, nor should she be paid as such.

Subsequently, the Board filed its motion for summary judgment supported by the affidavit of Dr. Abrams, its director of the Bureau of Medical and School Health Services, and by the affidavit of Edna C. Hickey, its director of the Bureau of Teacher Personnel. The medical affidavit stated that the affiant had responsibility for health examinations of candidates for teaching certificates in the Chicago public schools; that the plaintiff had been examined on three occasions prior to the date her regular teacher’s certificate expired and on seven later occasions; that because of her condition, she did not pass the health examination required for reappointment on a regular teacher’s certificate but was given qualified medical approval, limited to employment on a temporary basis, in a protective environment at Spalding School for Crippled Children, which school is equipped with elevators, wide halls, ramps and other equipment for the handicapped. The affidavit concluded with this statement: “Based on my examination, she would not be able to take care of children in any physical way in an emergency and the protective environment would be mainly for her own protection.”

The other affidavit stated that the affiant, Edna Hickey, had direct, supervisory responsibility for administering and coordinating all teacher appointments, employment, transfers, salary schedules and leaves of absence in the Chicago public schools; that the plaintiff resigned as a teacher effective February 7, 1957, and failed thereafter to pass a health examination required by Board Rule 4-27 before a teacher could be reappointed on a regular teaching certificate; and that the plaintiff requested employment at Spalding to increase her pension rights, which were increased by $139.64 per month for life, as a result of her teaching at Spalding High School for over three years.

The plaintiff filed counteraffidavits denying the crucial contentions urged in the Board’s affidavits and also filed her own affidavit in support of her motion for summary judgment.

In seeking an outright reversal of the trial court judgment and the entry of a judgment in her favor, the plaintiff contends that she never lost tenure under section 4-27 of the Board’s Rules, although she resigned, because: (1) she applied for reinstatement of her regular teacher’s certificate before the three-year period had expired on February 7, I960; (2) her application received active consideration and the Board extended her regular teacher’s certificate by its April 13, 1960, resolution; and (3) her employment subsequent to April 13, 1960, served to indefinitely extend her regular teacher’s certificate as a high school teacher of English, since she had passed at least ten medical examinations and actually served as a full-time teacher for 31/2 years. Alternatively, in seeking reversal and remandment, the plaintiff contends that there are present in this case disputed questions of material fact requiring a trial on the issues and not the entry of summary judgment.

It is undisputed in this case that the plaintiff enjoyed the rights of a tenure teacher when she was unfortunately stricken with poliomyelitis in 1956 at the age of fifty-four and after completing over thirty years of service with the Board in its public schools. It is also undisputed that she resigned from her teaching position effective February 7, 1957. In seeking reversal of the trial court’s judgment and entry of a judgment in her favor, the plaintiff contends that her case is bottomed on two interdependent factors: (a) the April 13, 1960, resolution of the Board which extended the validity of her regular teacher’s certificate to September 15, 1960; and (b) her continued service as a teacher under this extended certificate which served to continue her tenure status indefinitely. It is to be noted that if the plaintiff did, in fact, possess tenure status after the April 13, 1960, Board resolution, she was not dismissed in aecordance with the statutory procedures applicable to tenure teachers in the Chicago public schools system. See Ill Rev Stats (1965), c 122, § 34-85.

We are of the opinion that our ultimate decision in this case rests upon an interpretation of section 4-27 of the Rules of the defendant Board which provides:

“(Extension of Certificate after Termination of Service.) In case the holder of a certificate of . . . high school teacher, . . . shall leave the service of the Board of Education after having rendered active service under such certificate for at least one year, the certificate shall remain valid for three years from the date of termination of service. . . .
“A former . . . teacher who holds a valid certificate, whose efficiency rating was satisfactory or better at the time of the termination of service, and who passes a health examination given by a medical examiner selected by the General Superintendent of Schools, may apply for re-appointment. . . . Should application for re-appointment be made during the life of the certificate, such certificate may be extended in the manner herein provided, until the holder is offered an assignment. . . .” (Emphasis supplied.)

The plaintiff attempts to use the last quoted sentence of the above rule to support the argument that since she applied for reappointment as a regular teacher within three years after her resignation and hence during the life of her certificate and, in addition, the defendant Board extended her regular certificate in April, 1960, to September 15, 1960, her continued service as a teacher at Spalding High School pursuant to her assignment served to cause her to retain tenure status until the end of the school year in which she attained age sixty-five, or 1966-67. Such an argument tends to overlook the fact that this sentence is contained in the same paragraph which requires successful passing of a health examination. We are of the opinion that the more reasonable interpretation of these two sentences is that if the applicant applies for reappointment during the life of the certificate, but after resignation, and passes the health examination, his or her regular teacher’s certificate will not expire if the teacher is without an assignment, but rather the certificate may be extended until the teacher is offered an assignment. To adopt the interpretation urged by the plaintiff would be to negate the express words in the rule requiring a resigned teacher to pass a health examination given by a specific medical examiner.

In Meredith v. Board of Education of Community Unit School Dist. No. 7, Christian County, 7 Ill App2d 477, 486, 130 NE2d 5, 10 (1955), the court stated:

. . The best interest of the schools of the district is the guiding star of the Board of Education and for the courts to interfere with the exercise of the powers of the Board in that respect is unwarranted assumption of authority and can only be justified in cases where the Board has acted maliciously, capriciously and arbitrarily.”

The Meredith case involved a tenure teacher being dismissed for cause, rather than a teacher suing for monetary damages, but the spirit of the passage from the cited case is applicable to the facts of the instant case.

The plaintiff does not contend that there was any fraud, collusion or discrimination in the physical examination given her nor does she question the honesty and good faith of the examining physicians. She does contend that their medical judgment, regarding her not being able to work in a school other than one for the physically handicapped, is erroneous. We are reluctant to interfere with the Board and its medical examiners in this area of discretion and judgment, absent a showing of a traditional basis for judicial intervention such as fraud or collusion, etc. Therefore, this argument of the plaintiff cannot be sustained.

The plaintiff also contends that the health examination requirements of the Board of Examiners of the Board of Education of the City of Chicago only provide for two health classifications: Group I (accepted) and Group II (rejected), and do not provide for any “half-way house” classification. It is contended that the plaintiff was placed into such a “half-way house” classification because she was allowed to teach, although the defendant Board asserted that she did not pass a health examination. However, such an argument fails to consider that the Board of Examiners of the Board of Education of the City of Chicago and the Board of Education of the City of Chicago (defendant herein) are two separate entities so created by our legislature. See Ill Rev Stats (1965), c 122, § 34-2 (Board of Education) and § 34-83 (Board of Examiners). The instant case involves an interpretation of a rule of only the defendant Board of Education of the City of Chicago which rule requires that a teacher who has resigned must pass a health examination given by a specific physician before the teacher is reappointed under a regular teacher’s certificate. Therefore, the health examination requirements of the Board of Examiners of the Board of Education are not relevant to the issues on appeal.

The April 13, 1960 resolution of the defendant Board which purportedly extended the plaintiff’s regular teaching certificate to September 15, 1960, was a nullity. Over three years had passed since the plaintiff had resigned and she had not passed a health examination as required by the Board’s own rule. In Cartan v. Gregory, 329 Ill App 307, 314, 68 NE2d 193, 197 (1946) and in Lindblom v. Doherty, 102 Ill App 14, 29 (1902) , it was held that the Civil Service Commission was bound to act pursuant to its own rules. In like manner, the defendant Board of Education must also act following its rules. The plaintiff did not possess tenure status after February 7, 1960, since she did not pass the health examination as required by the rules of her employer for all regular teachers who have resigned. She could therefore be dismissed without following the procedures enumerated in Ill Rev Stats (1965), c 122, § 34-85 which only apply to teachers possessing tenure.

Finally, the plaintiff contends that summary judgment should not have been granted in this case as genuine issues of material fact are present. We have examined the pleadings and affidavits with accompanying exhibits filed by both parties in support of their respective motions for summary judgment. We are of the opinion that the material issue of fact in this case involves the employment status of the plaintiff as either a regular teacher or a temporary teacher. The affidavits filed in support of the respective motions for summary judgment show that the plaintiff was unable to pass the health examination required by the rule of her employer before the defendant Board could reappoint a resigned tenure teacher under a regular teacher’s certificate. Therefore, the action of the trial court in granting summary judgment was correct.

The judgment is affirmed.

Judgment affirmed.

BURKE and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MCNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Oparka, Defendant-Appellant.
    Gen. No. 52,611.
    First District, Second Division.
    January 21, 1969.
    Manning K. Leiter, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MCNAMARA

delivered the opinion of the court.

The defendant, Fred Oparka, was charged with the crime of rape. He was found guilty at a jury trial, and the jury fixed his punishment as imprisonment in the penitentiary for a term of 100 years. The defendant appeals from the judgment entered on the verdict, contending that the trial court erred in giving a certain State’s instruction and in refusing a certain tendered defendant’s instruction. A summary of the facts follows.

The complainant testified that she and her fiance were seated in a parked automobile at about 3:00 a. m. on August 9, 1959, in the vicinity of East 119th Street in Chicago. Defendant and John Cipich forced their way into the car at gunpoint. After forcing the girl’s escort into the rear seat, the pair drove to an isolated area. The complainant was seated between Cipich and the defendant in the front seat during this ride. While defendant held her fiance at gunpoint in the automobile, Cipich dragged the complainant, fighting and crying, into an abandoned building. After beating her, Cipich raped her and forced her to commit an act of oral copulation. Cipich then left the complainant, and defendant entered the room and also raped her and forced her to commit an act of oral copulation. Cipich returned to the room and warned defendant that the police would be checking the building at 5:00 a. m. and that it was now 4:45 a. m. Defendant continued to submit the complainant to further indignities for a few minutes. The pair, with defendant driving, then drove the complainant and her escort back to within a block of where they had been parked. They wiped their fingerprints from the car, and defendant took the car keys. Her escort was able to get a passing motorist to take complainant to a nearby hospital. The complainant and her fiance identified defendant at a lineup and again at trial.

Dr. Aaron Heimbach, who treated the complainant, testified that she had sustained a broken nose, two black eyes, bruises on her chest and lacerations about the vagina.

Two police officers of the Chicago Police Department testified that they arrested defendant two days after the above crime, and at the time of his arrest they found a loaded gun. Both officers testified that defendant orally admitted participation in the rape, but that he refused to sign a written confession.

William Thomas, a gas station attendant, testified for the State that the defendant came to the station at about 9:00 a. m. on August 9, 1959, and gave him a watch in settlement of a prior debt. Complainant’s fiance testified that it was the same watch taken from him during the commission of the crime.

Defendant testified that on the night of the occurrence, he was with friends until about 1:30 a. m. and arrived home about 1:45 a. m. He talked with his sister until 3:00 a. m. when she retired. About 3:45 a. m., a friend of his sister’s called, and he awakened her. He then dressed and went to a friend’s house, and the two of them went to a restaurant where they stayed until about 8:00 a. m. He also testified that the oral confession was false and the result of coercion by the police. (Prior to trial, the court conducted a hearing on defendant’s motion to suppress the oral confession on the ground that it was involuntary. The court found that the admissions were made voluntarily.)

Patricia Zamich, defendant’s sister, testified that defendant came home about 2:00 a. m. on the morning of the occurrence. They talked until about 3:15 a. m., when she went to bed. He later awakened her at about 3:45 a. m. because of a telephone call. She did not see defendant again that morning.

Defendant’s first contention on appeal is that the trial court committed prejudicial error by giving State’s Instruction No. 4 to the jury. The instruction given without objection was as follows:

“The court instructs the jury, as a matter of law, that before a defendant can avail himself of the defense of an alibi the proof must cover the whole of the time of the commission of the crime and be supported by such facts and circumstances in evidence as are sufficient when considered in connection with all the other evidence in the case to create in the minds of the jury a reasonable doubt of the truth of the charge against the defendant.”

Defendant argues that in instructing the jury that the defense of alibi must cover the entire time of the commission of the crime, the court committed reversible error since the jury could have believed that defendant’s sister was telling the truth but that the defense failed because she was unable to establish his whereabouts during the entire period when the crime was alleged to have occurred, citing People v. Johnson, 23 Ill2d 465, 178 NE2d 878 (1961).

However, in People v. Naujokas, 25 Ill2d 32, 182 NE2d 700 (1962), the Supreme Court affirmed a conviction in which a given instruction recited that the proof of alibi must cover the entire period of the commission of the crime. Although in that ease, defendant did not testify, he produced alibi witnesses, and the court found that there were gaps in the time accounted for by the alibi witnesses. While criticizing the instruction, the court stated at page 36 :

“In carefully considering the present record, the positive identification of the accused, his confession, and the other facts and circumstances, we cannot find that the ultimate outcome of the trial could have been affected by giving the challenged instruction.”

Similarly, in the instant case, we do not believe that the outcome of the trial could have been affected by giving the instruction in question.

The complainant and her escort, both having had excellent and lengthy opportunities to observe him, positively identified defendant as one of the perpetrators of the crime. Two police officers testified as to defendant’s oral confession, a confession which the court found to have been given voluntarily. Moreover, a witness testified that a few hours after the crime had been committed, the defendant gave him a watch in settlement of an old debt. That same watch was identified by the complainant’s fiance as one taken from him during the commission of the crime.

People v. Johnson, supra, cited by defendant, is clearly distinguishable from the case at bar. In that case, the court held that an instruction requiring that the alibi must cover the entire time of the crime constituted reversible error. But there, while finding that the State had presented sufficient evidence to justify a conviction, the court also pointed out that the facts were sharply disputed, that there was a discrepancy between the testimony of two of the State’s witnesses, and that there were several inconsistencies in the testimony of the complainant. Moreover, the instruction in the Johnson case, in addition to stating that the proof of alibi must cover the whole of the time of the commission of the crime, went on to add the words “so as to render the commission of the crime by a defendant impossible or highly improbable.” The court held that this instruction may have caused the jury to think that there was some question about defendant’s alibi other than the veracity of the witnesses. In People v. Smith, 25 Ill2d 219, 184 NE2d 841 (1962), the court approved the same instruction given in the case at bar, because the language of the instruction did not imply that defendant’s evidence was insufficient.

We conclude that while the instruction in question should not have been given, in view of the overwhelming evidence of defendant’s guilt presented by the State, it did not constitute prejudicial error and does not require reversal.

: The defendant also argues that the trial court’s refusal to give a certain tendered unnumbered instruction resulted in prejudicial error. The instruction was as follows:

“The court instructs the jury that if they find the defendant guilty they need not follow any recommendation of sentence made by the prosecutor. The purpose of the imposition of a term of penal servitude upon a person convicted of a crime is not only to punish the offender for his wrongdoing and to deter others from committing like offenses, but to rehabilitate him, in order that he might again live in society as a useful citizen; and each of these purposes must be considered together with all the facts in the case by the jury arriving at the sentence to be imposed. By giving this instruction the court does not intend to express any opinion one way or the other as to the guilt or innocence of the defendant.”

Under the statute in effect at the time of trial in 1960, the jury fixed the sentences in certain crimes, including rape (Ill Rev Stats 1959, c 38, § 801). The defendant argues that if the jury had been instructed on the issue of rehabilitation, they might have imposed a less severe sentence on defendant. The State argues that if such instruction had been given, it would have been an error prejudicial to the defendant. The State contends that if the jury had been instructed on the matter of rehabilitation, with the suggestion accompanying it that defendant might be released, the jury would have imposed a heavier sentence because of the revolting facts of the crime.

While not agreeing with the State’s argument that the giving of such an instruction would have been prejudicial to the defendant, we find that the trial court did not err in refusing such an instruction.

No case has been cited to us, nor have we found any case discussing such an instruction. However, we conclude that under the statute then in effect it was the duty of the jury to determine guilt or innocence from the evidence presented, and after finding the defendant guilty, to fix a sentence commensurate with the guilt and within the limits stated by the court in its instruction.

Defendant cites People v. Brown, 60 Ill App2d 447, 208 NE2d 629 (1965), in support of his contention that the above instruction should have been given, but it is not in point. There it was held that the possibility of rehabilitation should be a factor in sentencing, but that case involved sentencing by a trial judge after a hearing in mitigation and aggravation, with the defendant’s entire background before him.

The instruction requested by defendant would have served only to confuse the jury. They arrived at a sentence within the statutory limits outlined in the court’s instructions. The court did not err in refusing the instruction.

The defendant also argues that the trial court committed prejudicial error in refusing to give the first sentence of the above instruction as a separate instruction: “The court instructs the jury that if they find the defendant guilty they need not follow any recommendation of sentence made by the prosecutor.” While there were comments at the conference on instructions between counsel and court regarding the possible submission of such an instruction, the record clearly indicates that no such separate instruction was tendered by the defense. We also note that the jury was well instructed as to its power to sentence, and that the assistant State’s Attorney in his closing argument pointed out that the jury had the duty to fix the sentence.

For the foregoing reasons, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Oparka, Defendant-Appellant.
    Gen. No. 52,661.
    First District, Second Division.
    January 21, 1969.

      Richard W. Burke, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony J. Onesto, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The defendant, William Oparka, and his brother, Fred Oparka, were charged with the crime of rape. After a jury trial, both men were found guilty and sentenced to the penitentiary for a term of 60 years. Defendant appealed to the Supreme Court, and that court transferred the appeal to this court on the finding that no substantial constitutional issue was presented. Fred Oparka appealed his conviction to this court, and in People v. Oparka, 85 Ill App2d 33, 228 NE2d 291 (1967), that conviction was affirmed.

Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that introduction of evidence concerning a certain wristwatch constituted reversible error; that introduction of evidence concerning an ether bottle constituted reversible error; and that the trial court improperly restricted the cross-examination of one of the State’s witnesses.

Since the facts were set forth in considerable detail in the Fred Oparka opinion, supra, we deem it necessary to summarize the facts only briefly in this opinion. The complainant, a student nurse at South Chicago Community Hospital, identified defendant and his brother as the two men who forced their way at gunpoint into a parked automobile in which she and her companion were parked near the hospital. After forcing the escort into the back seat, they then drove to a secluded area some blocks away. Defendant chloroformed her escort, rendering him unconscious. Fred Oparka ripped the complainant’s clothes off and both men beat and raped her, defendant striking her on the head with a gun. After the rapes, the defendant unsuccessfully tried to chloroform her, and then the pair bound and gagged her. She eventually released herself, and she and her companion were taken to a hospital. Approximately four weeks later, two police officers arrested Fred Oparka as he drove defendant’s automobile, and found a loaded gun' in the car. The officers noted that he matched the description of one of the rapists. On the same day, defendant was arrested by two other police officers. At the time of his arrest, defendant asked the police officers, “Are you out here to arrest me for the rape of that girl on the south side?” The officers testified that prior to this statement they had not informed defendant of the nature of their visit. The complainant identified the gun found in defendant’s automobile as the one used by defendant, and also identified defendant and his brother at a lineup and at trial.

For the defense, a bartender testified that defendant was with him during the entire evening, first at the tavern where the witness was employed and then at a restaurant. A friend of defendant’s sister testified that some months after the crime, she met the complainant who stated that she would be unable to identify her assailants because it was dark. In rebuttal the complainant denied making such a statement.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt, arguing that the complainant’s identification could not have been positive because of the circumstances under which the rape took place. We have already found in the Fred Oparka case, supra, that the complainant’s testimony was consistent and that her descriptions to the police of her assailants were accurate. She identified the defendant at a lineup, and we find from the record in the instant case that her identification testimony as to defendant was positive and not shaken on cross-examination. As was stated in the Fred Oparka case, the question of the accuracy of a description and the validity of an identification are questions of fact and we find nothing in the record compelling us to disturb the finding of the jury. While the complainant testified that she did not get a good look at defendant and his brother when they first came up to the car because of the poor lighting conditions on the street, she testified that she sat between the two men as they traveled to the location where the rapes took place. She further testified that she was able to see the attackers as they drove with the aid of oncoming headlights and from the lights of the dashboard of the car. She had ample time and opportunity to observe her assailants not only during the trip, but also during the time when the rapes were occurring, and after the rapes when the defendant tried to chloroform her, and while she was being bound and gagged.

Defendant next contends that introduction of evidence concerning a wristwatch was prejudicial and constituted reversible error. Mildred Peters, a nurse and fellow worker of defendant at a laboratory, testified that about the time of this occurrence, defendant showed her a watch which she described as a nurse’s watch and told her that he found it in the ash tray of his car. The record discloses no testimony by the complainant that she had a watch on the night of the occurrence, or that it had been taken from her. The State contends that the complainant in fact had testified that the watch had been taken from her by the assailants, but that such testimony was inadvertently omitted from the record. After certification of the record, the State petitioned the trial court to amend the record, but the trial court denied that motion.

In People v. Oparka, 85 Ill App2d 33, 228 NE2d 291 (1967), we stated at page 41:

“While it is true the record does not contain evidence that a wristwatch was taken from (the complainant), it appears that the trial judge, the prosecuting attorney and the defense attorney all assumed this fact to be in evidence.”

At one point during the trial, outside of the presence of the jury, the trial judge stated:

“Might have been better, of course, if the State would have had the complaining witness describe the watch with some degree of accuracy, but that in itself only goes to the weight. She said it was a nurse’s watch.”

Defense counsel made no objection or comment to this statement by the judge, and in fact during his argument for a directed verdict counsel objected to the evidence as to the defendant only because the description of the watch by Mildred Peters constituted a conclusion, not because her testimony was irrelevant or because no foundation was laid for its introduction. In its closing argument, the State also assumed, without objection by defendant, that the complainant had testified about a watch being taken from her, and on that basis, the prosecuting attorneys made several references to the watch.

In the Fred Oparka case, the defense argued that the State’s remarks about the watch in closing argument were erroneous; while in the instant case defendant also contends that the testimony of Mildred Peters about the watch was error. In that case, this court found that the evidence concerning the watch was merely cumulative, and although error as to Fred Oparka, it was not prejudicial and did not require reversal. We stated at pages 41-42:

“Where the evidence shows a defendant guilty beyond all reasonable doubt the verdict will not be set aside where a different verdict would not have been reached had no error intervened.”

Likewise, we find in the case at bar, that since there was no testimony in the record by the complainant about a watch, the court erred in allowing testimony and references to the watch, but that such error was not prejudicial and does not require reversal. As stated in People v. Oberholdt, 359 Ill 39, 193 NE 608 (1935), “. . . the admission of incompetent testimony will not constitute reversible error if it appears that such testimony could not reasonably have affected the result.” At p 40. The evidence in the instant case shows that the complainant was an observant and credible witness, that her identification was positive and consistent, that defendant accurately fit the description given to the police officers, and that defendant had knowledge of the rape at the time of his arrest. The cases cited by defendant, People v. Smith, 254 Ill 167, 98 NE 281 (1912) and People v. Berkman, 307 Ill 492, 139 NE 91 (1923) are clearly distinguishable from the instant case. Both of those cases involved the introduction of guns which were not linked to the commission of the crimes charged. No such importance can be attached to testimony about the wristwatch, and we find that no prejudicial error was committed.

Defendant next argues that reference to a brown bottle marked by the State as an exhibit for identification but not introduced into evidence, was prejudicial error. The complainant testified that defendant poured chloroform or ether out of a bottle into a handkerchief and put it to her escort’s face. She also testified that a small brown bottle was used by defendant, but that she did not know whether it was the same bottle which was shown to her in court. She testified on cross-examination that the bottle shown to her in court was similar to the one used by defendant. Mildred Peters testified that bottles of ether were kept in unlocked cabinets at the laboratory where she and defendant were employed. She also testified that defendant washed such bottles, and about the time of the crime in question, one of the bottles was missing. She testified that she could not distinguish the bottle shown to her in court from similar bottles at the laboratory. The court promptly sustained defendant’s objection to the bottle; the State withdrew it as an exhibit and did not attempt to have it introduced into evidence. In their closing remarks, the assistant State’s Attorneys referred to the ether used in the rape, the washing of the bottles by defendant, and that the bottle used in the crime was similar to the one seen in court.

Evidence that defendant used a bottle of ether or a similar substance in the commission of the crime, and that in his employment he had access to ether and its containers was properly introduced into evidence. The defendant now argues that the State “flouted” the bottle before the jury, but the record clearly reveals that after objection, the State withdrew the exhibit and that the bottle was not displayed again. The State did not attempt to prove that the bottle shown in court was the one used in the crime, or that such a bottle was taken from defendant, nor did the State ever refer to it as such. The only evidence that the bottle used in the crime resembled the one shown in court was elicited on cross-examination. References to this testimony in closing argument, to which there was no objection, were not improper.

Defendant finally contends that the trial court erred in improperly restricting the cross-examination of one of the State’s witnesses. Dr. Albert G. Weiss, physician who treated the complainant at the hospital on the evening of the occurrence, testified on direct examination as to the results of his physicial examination. During cross-examination he testified that his examination of complainant took place about one hour after the occurrence and that he had a conversation with the girl. He then was asked whether the complainant described her assailants, and the court sustained the State’s objection to the question.

The latitude permitted in the cross-examination of witnesses at trial is a matter within the sound discretion of the trial court and its rulings in this regard will not be upset on review unless there has been a plain abuse of discretion. People v. Provo, 409 Ill 63, 97 NE2d 802 (1951). On cross-examination, a party is restricted to inquiry concerning matters covered during direct examination of a witness. People v. DuLong, 33 Ill2d 140, 210 NE2d 513 (1964). Clearly the question asked went beyond the scope of direct examination.

Moreover we reject defendant’s contention that complainant’s description of her attackers was a spontaneous declaration. While the contents of a spontaneous declaration may be shown in their entirety, People v. Damen, 28 Ill2d 464, 193 NE2d 25 (1963) the Supreme Court has held that in order for a statement to be a spontaneous utterance and therefore admissible, the occurrence must be sufficiently startling to produce a spontaneous utterance, there must be an absence of time to fabricate, and the statement must relate to the circumstances of the occurrence. People v. Poland, 22 Ill2d 175, 174 NE2d 804 (1961). Without considering defendant’s failure to make an offer of proof, we conclude that even if the complainant had described her assailants to a doctor conducting a physical examination at a hospital about an hour after the occurrence, it would not qualify as a spontaneous expression of her feelings relating to the circumstances of the crime. Accordingly, such an identification would not be admissible.

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

Judgment affirmed.

LYONS, P. J. and BURKE, J., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Sarelli, Defendant-Appellant.
    Gen. No. 52,890.
    First District, Second Division.
    January 21, 1969.
    Rehearing denied March 5, 1969.
    Anna R. Lavin, of Chicago, for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas J. Immel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in fulL


author: MR. JUSTICE BURKE

text:
    Carl Pendl, Plaintiff-Appellee, v. United Parcel Service, Defendant-Appellant.
    Gen. No. 52,931.
    First District, Second Division.
    January 21, 1969.

      Herbert L. Caplan, Richard J. Aronson, and Max Tyson, of Chicago, for appellant.
    Morton & Yellin, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for injuries suffered by plaintiff occasioned by the alleged negligence of defendant in the operation of a motor vehicle. The jury returned a verdict in favor of plaintiff in the amount of $2,000; the jury was also tendered a special interrogatory, questioning whether plaintiff was guilty of contributory negligence, which was answered in the affirmative. Judgment was entered on the general verdict, the trial court refusing to enter judgment on the special interrogatory. Defendant appeals.

Plaintiff’s action was filed in December 1961 requesting damages against defendant in the amount of $5,000. The case was submitted to the jury on September 27, 1967. Among the matters sent with the jury to the jury room was the following special interrogatory:

“Before and at the time of the occurrance [sic], was the plaintiff guilty of any contributory negligence which was a proximate cause of the occurrance [sic] ?”

On September 28, 1967, after the jury had returned their verdicts, trial counsel met with the trial judge to discuss “what to do with our verdict in this case.” The ensuing discussion between the court and counsel centered around the applicability of decisions which hold that a special verdict controls a general verdict, such as Borries v. Z. Frank, Inc., 37 Ill2d 263, 226 NE2d 16, and the decision of the Appellate Court in Maki v. Frelk, 85 Ill App2d 439, 229 NE2d 284, decided in July 1967, which applied the principle of comparative negligence.

The trial court ultimately followed the Appellate Court’s decision in Maki, holding that “the answer to the special interrogatory and the general verdict for plaintiff are not inconsistent.” The trial court reasoned that plaintiff, in the complaint, requested $5,000 damages from defendant, but the jury, in giving consideration to plaintiff’s “lesser degree of negligence,” gave him only $2,000. The final comment of the trial court prior to entering judgment for plaintiff was that “plaintiff had asked for $5,000 and the jury awarded $2,000; and the Court feels in the light of Maki that this is not inconsistent.”

Leave to appeal in the Maki case was granted by the Illinois Supreme Court, and the determination of the Appellate Court was reversed in July 1968, the Supreme Court stating that the question of whether the doctrine of comparative negligence should be made applicable to legal actions in this State is “one that is appropriate for legislative rather than judicial action.” Maki v. Frelk, 40 Ill2d 193, 197, 239 NE2d 445.

It is well established that a special interrogatory, or verdict, controls a general verdict. Ill Rev Stats 1967, c 110, Par 65; Borries v. Z. Frank, Inc., 37 Ill2d 263, 226 NE2d 16; Mathes v. Basso, 104 Ill App2d 237, 244 NE2d 362 (1968). The trial judge accordingly should have entered judgment for defendant according to the jury’s answer to the special interrogatory.

Plaintiff maintains that the trial court “properly acted within its discretion in disregarding the finding on the special interrogatory and entering judgment on the jury’s verdict.” In support of this position plaintiff cites Freeman v. Chicago Transit Authority, 33 Ill2d 103, 210 NE2d 191. Although Freeman holds that a trial court may properly set aside the answer to a special interrogatory where it is against the manifest weight of the evidence, no such action was taken by the trial court, nor does the record disclose that the jury’s answer to the special interrogatory was against the manifest weight of the evidence. On the contrary, the trial court impliedly sustained the jury’s special verdict by holding that the special verdict and the general verdict were consistent with each other.

For these reasons the judgment is reversed and the cause is remanded with directions to enter judgment for the defendant.

Judgment reversed and cause remanded with directions.

LYONS, P. J. and McCOKMICK, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Donald Deel, Plaintiff-Appellee, v. United States Steel Corporation, a Corporation, Defendant-Appellant. United States Steel Corporation, Third Party Plaintiff-Appellant, v. Swindell-Dressler Corporation, a Foreign Corporation, Third Party Defendant-Appellee.
    Gen. No. 52,204.
    First District, Fourth Division.
    January 22, 1969.

      Harlan L. Haekbert, Jeremiah Marsh, Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago, for appellant.
    Vogel & Vogel, of Chicago (Robert Guritz, of counsel), and William M. Freeman, of Lansing, for appellees.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

United States Steel Corporation appeals from a judgment of $25,000 after a jury trial on plaintiff’s claim for personal injuries, and also from a judgment n. o. v. in favor of third-party defendant Swindell-Dressler Corporation in an indemnity action brought by United States Steel Corporation. Plaintiff sued for injuries sustained on a building project for United States Steel Corporation at its South Chicago Works while employed by Swindell-Dressler, a contractor.

Defendant urges the following contentions in its appeal from the judgment in the negligence claim: (1) there was no evidence of negligence; (2) plaintiff failed to prove freedom from contributory negligence; (3) inconsistency in verdicts between the negligence claim and the indemnity claim; and (4) errors in the submission of instructions. Defendant also contends that the court erred in entering judgment n. o. v. for the third-party defendant.

TESTIMONY

Donald Deel, the plaintiff, testified that on June 10, 1958, he was operating a forklift truck for Swindell-Dressler Corporation in the basement of the United States Steel South Chicago Works; that on that day his foreman, McKee, asked him to move four large steel bases for the Morrison Construction Co.; that he had been working entirely in the south end of the building but that this task required him to proceed through a doorway into the northern room of the basement. He testified that two of the bases were four and one-half to five feet in diameter, and two were six and one-half to seven feet in diameter; that he conveyed the two smaller bases prior to the trip on which the injury was sustained; and that the accident occurred during the third trip about forty-five minutes after the second trip and close to quitting time.

Plaintiff testified further that when seated on his forklift his head was six to six and one-half feet off the ground; that on the trip during which he sustained the injury he was carrying one of the larger bases; that he was proceeding at approximately two miles per hour and looking straight ahead through the center of the base; that when he got to the doorway he had to raise the base to avoid materials left on the floor; that by raising the base, the mast of the forklift was elevated; that the top of the base was then nine and one-half to ten feet in the air; that he could no longer look straight through the base but had to look to both sides to avoid explosive acetylene bottles and other objects left in his path; and that he was suddenly struck in the neck by a black rubber coated cable which was one inch in diameter. He said that the cable was strung between two columns which were ten to twelve feet apart and fifteen to twenty feet north of the doorway, and that after the accident the cable was hanging neck-high but was only one foot higher at the points where it was hitched on the columns.

Plaintiff stated that he observed employees of Swindell-Dressler, Ragnar Benson, Morrison Construction and United States Steel working in the basement; that Swindell-Dressler men were working in the far south end of the basement near the conveyer belt; that United States Steel employees were welding on the south side of the doorway; and that the only people seen north of the doorway in the six days he worked there were employees of Morrison and that although they were welding they were not welding close to the doorway. Finally, the witness testified that although the cable was of the type used for welding, he couldn’t be sure what it was being used for; that he had also been forced to raise the smaller bases to clear the obstacles in the area but that he did not observe the cable on the prior two trips; that he did not know whether the cable was there on the prior two trips because he was not looking up at the ceiling and that he did not see anyone working in the area between his trips.

William Faisan, a safety engineer for United States Steel, was called by the plaintiff. He testified that he was the safety engineer for United States Steel at the South Chicago Works in June of 1958; that he did not find out about the accident until February of 1959 at which time he investigated it; that in June of 1958 he was in the area where the accident occurred daily to determine safety and found that the area was well lit but could recall no overhead welding cables strung in the basement. He stated that he could not say whether there was any welding equipment in the area on June 10 but welding was going on from time to time. He said that United States Steel had used welding equipment in their work in the basement but he did not know whether employees of Morrison Construction had done any welding there. He stated that United States Steel safety rules forbade the stringing of welding cables which might foul a passage.

Hardin McKee, an employee of Swindell-Dressler, testified that he was a labor foreman for Swindell-Dressler in June of 1958; that plaintiff was under his supervision at the South Works of United States Steel; that plaintiff called his attention to the accident when he came into the basement where plaintiff was working; that he only glanced at the cable from six to ten feet away but that it looked to him like a rusty steel cable rather than a welding cable. He said that he saw only Swindell-Dressler employees in the area and that he did not remember any request from Morrison employees to move any bases.

Michael J. McCarthy, project manager for Ragnar Benson. This witness testified that William Faison, United States Steel’s safety engineer, was in charge of overall safety on the job.

Henry Wolfe, superintendent of the construction storehouse of the American Bridge Division of United States Steel, testified that plaintiff’s exhibit was not the size of welding cable used by American Bridge; that he had been involved in storing these goods for American Bridge since 1946 and they always used three-quarter inch rather than a one-inch cable.

Douglas Kingman, job supervisor and engineer for Morrison Construction, testified that during the period in question Morrison was installing piping in the soaking pits under a contract with Swindell-Dressler; that Morrison did welding in the basement but could not say if it was on June 10; that he did not recall seeing welding equipment or cables in the basement; that no more than one or two Morrison employees were doing welding during this period and that other companies, including American Bridge, were doing welding.

Charles Banhaam, Jr., general foreman for Morrison, testified that he was present spasmodically; that the basement was poorly illuminated; that only one or two Morrison employees were doing welding; and that Morrison strung its welding cables only on the floor.

James R. Morrison, president of Morrison Construction Co., testified that Morrison often welded pipes together; that the company never strung welding cables overhead between existing structures but always employed a special wooden frame. He said plaintiff’s exhibit differed from the type of welding cables his company used in that Morrison used three-quarter inch cable and Exhibit 1 was seven-eighths inch and Morrison’s cable was completely black while Exhibit 1 was black with speckles.

It should be noted that the cable introduced as Plaintiff’s Exhibit 1 is not the actual cable which caused the accident but is only similar to it.

OPINION

A. The Negligence Claim

(1) Defendants argue that there was no evidence that defendant was guilty of negligence because (a) there was no evidence that defendant allowed and permitted said cable to remain at a dangerous height and (b) there was no direct evidence that it erected or strung the cable. There is no direct evidence as to who erected the cable but there is sufficient circumstantial evidence to support the jury’s conclusion that United States Steel did string the cable.

The uncontradicted testimony of plaintiff establishes that United States Steel was doing welding work in the basement near the accident site on the day of the accident. William Faisan, safety engineer in the employ of United States Steel, testified that United States Steel was doing welding in the basement but did not recall if any was going on the day of the accident. He did not learn of the accident until seven months afterward. There was also evidence that the cable in question was a welding cable; the only other men engaged in welding were employees of Morrison Construction Co. and they were working in another area of the building, a considerable distance from where the accident occurred; this area was separated by solid concrete walls from the place where the cable was. There was also evidence that Morrison did not use the type of cable described by plaintiff; that Morrison’s practice was to support cables with wooden troughs; and that Morrison specifically denied that it had strung any cables overhead. Defendant proffered no testimony as to its practice in stringing cables nor was there any denial that it had strung the cable that caused the accident. Defendant’s only witness testified that welding cable used by defendant was “approximately 3/4 inch” in diameter and that one inch cable was not used. On cross-examination he stated that cable similar to Exhibit 1 (which was described by plaintiff as one inch cable) was not used by defendant for welding; that it may be used in the plant but it was not stocked in his storehouse. Although there was no direct evidence that defendant installed the cable, the jury could find from the circumstantial evidence that defendant did install it and was thereby guilty of negligence. See Gerke v. Fancher, 57 Ill App 651, 658.

However, defendant contends that there were judicial admissions by plaintiff that defendant did not erect the cable and that these admissions were made, firstly, in plaintiff’s answers to written interrogatories and, secondly, in plaintiff’s counsel’s closing argument to the jury.

Plaintiff’s counsel in answering defendant’s interrogatories stated “upon information and belief” that the cable was installed by Morrison Construction Company or Ragnar Benson, Inc. or Northern States Company, Inc. and the cable was owned by Morrison or Ragnar Benson. Rule 201 (i) of the Supreme Court Rules (Ill Rev Stats 1967, c 110A, § 201 (i)) provides that “[disclosure of any matter obtained by discovery is not conclusive, but may be contradicted by other evidence.” Answers to interrogatories may be used in evidence to the same extent as depositions of an adverse party. Ill Rev Stats 1967, c 110A, § 213 (f). Discovery depositions may be used only as provided for in Ill Rev Stats 1967, c 110A, § 212(a):

(1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness;
(2) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person;
(3) if otherwise admissible as an exception to the hearsay rule; or
(4) for any purpose for which an affidavit may be used.

Therefore the answers to the interrogatories were not judicial admissions.

Defendant also claims that plaintiff’s counsel made a judicial admission in closing argument by arguing that the jury could conclude from the evidence that Morrison Construction Company put up the cable and by a further statement that Morrison “is liable for this cable, the way it was strung” and that Morrison caused the accident. In Sabo v. T. W. Moore Feed & Grain Co., 97 Ill App2d 7, 19-20, 239 NE2d 459, plaintiff sued Cox, the driver of one car, and Moore (the owner of the other) and Humphreys (the driver of Moore’s car) for personal injuries resulting from a collision between the cars of the defendants. Moore and Humphreys contended on appeal that plaintiff’s counsel’s statements in closing argument constituted a judicial admission. The court stated:

Plaintiff’s counsel stated that he was particularly impressed with Humphreys’ truthfulness, but Cox had consistently lied; that he could not, in good conscience, state that he felt that Humphreys was at fault, or that the truck, prior to the collision, had been on the wrong side of the road.
Unless the statements of counsel constitute judicial admissions, they would not serve to relieve defendants of liability. In Rosbottom v. Hensley, 61 Ill App2d 198, at page 215, 209 NE2d 655, the Appellate Court said: “Judicial admissions must be distinguished from evidential admissions in that the former are binding and are considered to be incontrovertible. They include pleadings in the case, admissions in open court, stipulations, and admissions made pursuant to requests to admit. Cleary Handbook of Illinois Evidence, 1963, secs 5.1 and 17.12. In the dictionary denotation, a judicial admission is a formal act of the party or his attorney in court, dispensing with proof of a fact claimed to be true and is used as a substitute for legal evidence at the trial. Black’s Law Dictionary, 1944.” In our opinion the statements made by counsel were not judicial admissions and do not exculpate the defendants. We have examined the authorities cited by defendants Nowak v. Schrimpf, 44 Ill App2d 309, 313, 194 NE2d 547 (1963); People v. Hilltop M. M. Co., 300 Ill 564, 571, 133 NE 303 (1921); Deffler v. Loudenback, 233 Ill App 240 (1924); Kirchheimer v. Barrett, 125 Ill App 56 (1906); and Parker v. Louisville and N. R. Co., 230 Ill App 259 (1923) and find them so clearly distinguishable as to require no further discussion.

We conclude that the statements in the instant case were not judicial admissions.

Defendant has also argued that it had no notice of the existence of the wire, either actual or constructive. Although we have determined that the verdict was supported by evidence from which it was reasonably inferable that defendant did erect the cable, we will nevertheless consider whether the jury could have found defendant guilty of negligence on the basis of constructive knowledge of the existence of the cable. Both parties cite Donoho v. O’Connell’s, Inc., 13 Ill2d 113, 118, 148 NE2d 434, for the proposition that:

DQf the substance [or object] is on the premises through acts of third persons, the time element to establish knowledge or notice to the proprietor is a material factor. Schmelzel v. Kroger Grocery and Baking Co., 342 Ill App 501.

Defendant argues that if the cable was strung in the period between the trip on which plaintiff was injured and the immediately preceding trip (a time of about thirty minutes) then insufficient time had elapsed to impose constructive notice on United States Steel. We agree with this contention. Defendant next urges that since plaintiff has not proven that the cable was strung at an earlier time it must be assumed that the cable was strung during the thirty-minute period. We disagree with this contention. The fact that plaintiff did not strike the cable on previous trips is explained by the fact that he was carrying smaller and lower loads on those trips; thus it is not a necessary conclusion from such evidence that the cable was not strung at that location before the next-to-last trip. Next, there was testimony that no one, other than plaintiff, had been working in the room of the accident that day; that prior to that date Morrison employees were working in that room; that there was a good deal of welding going on in the vicinity prior to the date of the accident. The jury could find from such evidence that the welding cable had been strung previous to the day of the accident.

(2) Defendant further argues that plaintiff failed at law to prove his freedom from contributory negligence. Defendant relies solely on plaintiff’s testimony that he was not looking directly ahead in the direction in which he was going on the trip on which he was injured. In response to a special interrogatory, the jury found the plaintiff free from contributory negligence. The cases cited by defendant are not applicable to the instant situation. There is no question that a person driving a moving vehicle has a duty to keep a lookout for objects and persons ahead of him but the type of lookout to be kept depends on the circumstances in which the vehicle is being operated. See Rosenthal v. Chicago & A. R. Co., 255 Ill 552, 555-556, 99 NE 672, requiring reasonable care in the circumstances. In the instant case the greatest foreseeable danger lay in running over items strewn about the floor (including explosive acetylene bottles) and it is precisely a lookout for such items that plaintiff was keeping. Further, plaintiff had no reason to expect danger from above because there was an established regulation of defendant, upon which plaintiff could reasonably rely, that there should be no overhead wires or cables. Thus the jury’s finding on the special interrogatory finds support in the evidence. Further, in our opinion it was not against the manifest weight of the evidence.

(3) Defendant next points out that the verdict against defendant was for $25,000 and that the verdict in favor of U. S. Steel as third-party plaintiff was for $5,000 (set aside by the trial judge who granted a judgment notwithstanding the verdict in favor of third-party defendant Swindell-Dressler Corporation). According to defendant this inconsistency in amounts requires a new trial. In Horton v. Moore-McCormack Lines, Inc., 326 F2d 104, there was a verdict against Moore-McCormack for $80,000 and a verdict for only $4,300 on the third-party claim. The court held that although the verdicts were inconsistent there was no reason to believe that there was any error in the main action and that therefore there was “no justification for remanding for a new trial of the main action.”

(4) The defendant also urges that the court below erred in not giving two requested instructions to the jury. We have examined the proffered instructions and find that the court properly refused to give them since the given instructions adequately presented the issues to the jury.

We find that defendant was not entitled to a directed verdict (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504) and that verdict was not against the manifest weight of the evidence. (Hitt v. Langel, 93 Ill App2d 386, 397, 236 NE2d 118.) We affirm the judgment in the main action.

B. The Indemnity Claim

The jury returned a verdict for $5,000 in favor of U. S. Steel on its third-party complaint against Swindell-Dressler Corporation. The trial judge entered a judgment notwithstanding the verdict in favor of Swindell-Dressler. U. S. Steel appeals from that judgment and requests that we reverse that judgment and that we remand with directions to sustain the motion of third-party plaintiff to amend the verdict of the jury in its favor and against third-party defendant-appellee by increasing the amount of said verdict from $5,000 to $25,000 and for entry of judgment for said amount and for costs and interest from April 4,1966.

The contract between U. S. Steel and Swindell-Dressler provided in part:

Contractor shall save Owner harmless from any and all claims, . . . growing out of injury to . . . any of Contractor’s employees . . . while on or about Owner’s premises in connection with any matters relating to the performance of this contract.

In the pleadings it was admitted that:

On or about the 10th day of June, 1958, Donald Deel, the plaintiff herein, was an employee of said Swindell-Dressler Corporation, and was on the premises of the South Works of said United States Steel Corporation in connection with and solely by virtue of the aforementioned contract.

Third-party appellee contends that the indemnity provision is not specific enough to impose liability on it for the negligence of the other party. Appellant argues that the broad terms of the indemnification do impose such liability, citing Russell v. Shell Oil Co., 339 Ill App 168, 89 NE2d 415; Northern States Co., Inc. v. A. Finkl & Sons Co., 8 Ill App2d 419, 132 NE2d 59; Newberg Const. Co. v. Fischbach, Moore & Morrissey, Inc., 46 Ill App2d 238, 196 NE2d 513, and others. In the recent case of Spurr v. La Salle Const. Co., 385 F2d 322 (7th Cir 1967) in construing an indemnity provision the court said at page 330:

The argument suggests that a specific reference to liability arising out of the indemnitee’s negligence is required. General inclusive language, has, however, been held sufficiently explicit in decisions of Illinois appellate courts and of this court, applying Illinois law. [Citing Gay v. S. N. Nielsen Co. (1958), 18 Ill App2d 368, 152 NE2d 468, and DeTienne v. S. N. Nielsen Co. (1963), 45 Ill App2d 231, 195 NE2d 240.]

In Patent Scaffolding Co. v. Standard Oil Co. of Indiana, 68 Ill App2d 29, 41, 215 NE2d 1, the court stated:

As was said in Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn 193, 288 NW 226, 227, if this sort of agreement were not applied to the negligence of the indemnitee, “there would be but little remaining purpose of the promise of indemnity.”

We conclude that the clear language of the indemnification in the instant case covered “any and all claims . . . growing out of injury to . . . any of Contractor’s employees . . . while on or about Owner’s premises” and that this coverage extended to injuries caused by the indemnitee’s negligence, and specifically it covered the injury of plaintiff in this case.

The judgment in favor of plaintiff and against United States Steel Corporation in the sum of $25,000 is affirmed and the judgment in favor of Swindell-Dressler Corporation and against United States Steel Corporation on its third-party complaint is reversed. If there were to be a new jury trial as to the third-party complaint, there would be no issue of either liability or damages for decision by the jury, and it would be incumbent upon the court to direct a verdict in favor of the third-party plaintiff for the full amount of the judgment against it in the basic action. No useful function would be served by such a “jury trial.” We therefore remand the third-party cause with direction to enter judgment against the third-party defendant for $25,000. We consider this action on our part to be within our authority under Supreme Court Rule 366(a) (5) (Ill Rev Stats 1967, c 110A, § 366(a) (5)) which states that we may exercise the power to “grant any relief . . . that the case may require.” See Horton v. Moore-McCormack Lines, Inc., 326 F2d 104 (2nd Cir 1964). The case of Ammesmaki v. Interlake S. S. Co., 342 F2d 627 (7th Cir 1965), relied on by the third-party defendant to require us to grant a new trial in this circumstance, is distinguishable. There, the court departed from the rule of the Horton case because it was found in Ammesmaki that the “bases of liability” were not identical. Here, we have found that they were identical—the negligence of the third-party plaintiff— with the only addition in the third-party cause being the application of the terms of the indemnity contract. In view of our decision, this results necessarily in liability of the third-party defendant as a matter of law.

Affirmed in part, reversed and remanded in part with directions.

McCORMICK and ENGLISH, JJ., concur.

       Besides United States Steel Corporation the plaintiff sued three contractors: North States Company, Ragnar Benson, Inc., and Morrison Construction Co. The court directed verdicts in favor of North States and Ragnar Benson; the jury returned a not guilty verdict in favor of Morrison Construction Co.

       Swindell-Dressler did no welding work. Ragnar Benson strung no cables overhead and their welding work had been completed and their men and equipment removed. Northern States Co. had welding equipment only above the basement. Both of the latter companies were found not guilty by direction of the court. The jury found Morrison Construction Co. not guilty.

       See Miller v. Burch, 254 Ill App 387, 392; Chicago Telephone Co. v. Commercial Union Assur. Co., Ltd. of London, 131 Ill App. 248; Prater v. Veach, 35 Ill App2d 61, 181 NE2d 739.


text:
    Albert Greco, Plaintiff-Appellant, v. State Police Merit Board, L. F. Tomlinson, Chairman and Member of the State Police Merit Board, R. E. Yalden, Secretary and Member of the State Police Merit Board, General William H. Arnold, Member of the State Police Merit Board, and William H. Morris, Superintendent, Division of State Highway Police, Department of Public Safety of the State of Illinois, Defendants-Appellees.
    Gen. No. 52,364.
    First District, Fourth Division.
    January 22, 1969.

      Daniel A. Gallagher, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. O’Toole, Bernard Genis, and John

      J. George, Assistant Attorneys General, of counsel), for appellees.
    Kleiman, Cornfield & Feldman, of Chicago, for amicus curiae.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff filed an action in the Circuit Court seeking an administrative review of the decision of the State Police Merit Board discharging plaintiff as a Trooper on the Illinois State Police. The court affirmed the Board’s decision and plaintiff appealed.

On appeal plaintiff’s principal contentions are that Merit Board’s denial of his demand for a Bill of Particulars and its refusal to order the production of pretrial written statements of witnesses who testified against him constituted prejudicial error and deprived him of a fair hearing.

Proceedings Before the Merit Board

On December 10, 1968, a complaint was filed with the Department of Public Safety, Division of State Highway Police, against the plaintiff, Trooper Albert Greco. The complaint alleges that respondent (plaintiff) “was guilty of one or more of the following acts, failures to act, courses of conduct, or things,” and then proceeds to list seventeen items, two of which have five subparts, one of which has six subparts, and another of which has seventeen subparts. The complaint does not state any persons whom the alleged acts or failures to act affected, nor the times, dates or places where the acts were allegedly committed.

On November 19, 1964, the State Police Merit Board was informed that respondent had changed attorneys and was then being represented by Daniel A. Gallagher. On November 25, 1964, a demand for Production of Written Statements was filed. Only the written statements of respondent were sent to his attorney.

On December 2, 1964, a demand for a Bill of Particulars was filed with the State Police Merit Board. On December 7, 1964, the hearing began and respondent’s attorney renewed his demand for a Bill of Particulars and also made a motion to strike and dismiss because of the vagueness of the complaint. These were denied and the taking of evidence began.

During the cross-examination of petitioner’s witnesses Victor Jackson, Dorris Howard Brooks and Walter J. Buczkowski, counsel for respondent elicited the fact that they had all given written statements to the Attorney General. Counsel for respondent then specifically demanded these statements and was refused, and the Board refused to direct the Assistant Attorney General to furnish such statements.

The State Police Merit Board rendered its decision as follows:

We conclude, therefore, that respondent in participating in the receipt of kickbacks and the solicitation thereof, is guilty of violating the State Statutes concerning official misconduct, Chapter 38, Section 33-3, Illinois Revised Statutes of 1963, State Police rules and regulations “R-18” and those regulations pertaining to conduct, Articles VIII (d), IX (d), and XIV(f-1, 3, 4 and 7).
2. That irrespective of any rules and regulations of the Illinois State Police Force, the conduct of the respondent in soliciting and accepting kickbacks from tow service operators, demonstrates conduct which is unbecoming any State Police Officer and tends to bring the organization for which he works into disrepute.

Plaintiff was discharged from the State Highway Police Force as of November 15,1963.

Decision

Plaintiff first contends that he deserves a new hearing before the Merit Board because he was not sufficiently apprised of the charges against him due to the vagueness of the original complaint and the refusal of the Merit Board to grant his request for a Bill of Particulars. The complaint before the Merit Board alleged that plaintiff was guilty of committing one or more of seventeen different “acts, failures to act, courses of conduct, or things” which violate one or more of thirty-two various statutes, oaths of office, rules and regulations, general orders or job descriptions. The complaint did not contain the names of any individuals against whom “acts, failures to act, courses of conduct, or things” were committed. Nor were there any times, dates, places or specific description of plaintiff’s alleged misconduct.

The State Highway Police Act in the section dealing with removal, demotion and suspension states:

. . . the accused policeman shall be afforded full opportunity to be heard in his own defense and to produce proof in his own defense. Ill Rev Stats 1961, c 121, § 307.14. (Emphasis added.)

When a policeman is not sufficiently informed of the charges against him it becomes impossible for him to “produce proof in his defense”; and he certainly is not “afforded full opportunity” to do so. It is true that charges in an administrative proceeding need not be drawn with the same nice refinements and subtleties as pleadings in a court of record, but the charges must be sufficiently clear and specific to allow the preparation of a defense. Sudduth v. Board of Fire and Police Com’rs, 48 Ill App2d 194, 198 NE2d 705. We find that the complaint before the Merit Board did not sufficiently apprise the officer of the charges and that action of the Board in denying his demand for a Bill of Particulars was reversible error.

Plaintiff next argues that he was entitled to copies of the written pretrial statements of the opposition’s witnesses. Since this question will undoubtedly come up on the rehearing before the Merit Board, we shall decide it. The State Highway Police Act quoted above demands that an accused officer be given “full opportunity” to be heard and produce proof. This has been interpreted to mean that he can, among other things, introduce his own witnesses and cross-examine opposing witnesses. Gigger v. Board of Fire and Police Com’rs, 23 Ill App2d 433, 439, 163 NE2d 541. It has been held that access to pretrial statements of opposition witnesses who testify is necessary for the adequate presentation of a defense in federal administrative proceedings, Communist Party of United States v. Subversive Activities Control Board, 254 F2d 314, 328; National Labor Relations Board v. Adhesive Products Corp., 258 F2d 403, 407-409. (See also Jencks v. United States, 353 US 657, a criminal case.) We can see every reason for requiring production of such items in state administrative proceedings as well, and can find no valid argument against such requirement. The function of the Merit Board may be basically investigative, but this is no reason to withhold information from an accused officer. Since the Board uses an adversary procedure to perform its investigation, a fair and unbiased result can obtain only if both adversaries are allowed to present a full case and are allowed to rebut the opposition. Depriving the defense of pretrial statements of opposition witnesses who testify greatly impairs such full presentation and rebuttal and obliterates the opportunity for meaningful cross-examination. Without access to such statements, the defense is unable to test the memory, consistency, or veracity of the witnesses. In short, the best tool of cross-examination is denied the defense when pretrial written statements are withheld.

The judgment of the Circuit Court is reversed and the cause remanded to the Circuit Court with directions to return it to the State Police Merit Board for a new hearing consistent with this opinion.

Reversed and remanded.

McCORMICK and ENGLISH, JJ., concur.