author: MR. PRESIDING JUSTICE STAMOS

text:
    William Joseph Breault and Bonnie Jo Ellen Kathryn Breault, Plaintiffs-Appellants, v. Harold L. Feigenholtz and Richard Dahm, Individually and as Executors and Trustees Under the Will of Kathryn M. Breault, Deceased, Harold L. Feigenholtz, as Executor and Trustee Under the Will of Oscar J. Breault, Deceased, Estelle Breault, Wesley Memorial Hospital, St. Hedwig Industrial School for Girls and Polish Manual Training School for Boys, and Kenneth Breault, Defendants-Appellees.
    Gen. No. 53,181.
    First District, Fourth Division.
    June 26, 1970.
    Rehearing denied October 5, 1970.

      John J. Yowell and G. Kent Yowell, of Chicago, for appellants.
    Jacob Shamberg, of Chicago, for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs, as assignees of a vested remainderman under the testamentary trust created by the will of Kathryn Breault, appeal from the Circuit Court’s dismissal of their suit for an accounting and appointment of a receiver.

Plaintiffs are two of three grandchildren of Kathryn Breault, deceased, and children of Oscar J. Breault by his second wife Florence. Kathryn died August 3, 1952, leaving a Last Will and Testament devising the residuary property to Harold Feigenholtz and Richard Dahm, as trustees, for the benefit of her son Oscar Breault during his lifetime. The pertinent provisions of the will provide:

“SIXTH: Payments to all beneficiaries of the trust estate, excepting minors and persons under disability, shall be made to such beneficiaries in person or upon their personal receipt and to no-one else and no interest of any beneficiary shall be assignable in anticipation of payment nor be liable in any way for such beneficiaries debts or obligations.
“During the minority of any beneficiary, the Trustees may pay such income in any of the following ways:
“(a) Directly to said minor;
“(b) To the legal guardian of said minor;
“ (c) To a relative of said minor to be expended by such relative for the support, maintenance and education of said minor; and “ (d) By the Trustees themselves expending the sum directly for the education and maintenance of said minor.
“TENTH: The Trust Estate shall be distributed both as to income and principal, in the following manner:
“ (A) The Trustees shall pay over and distribute to my son, OSCAR J. BREATJLT, all of the net income from the Trust Estate in installments not less frequently than quarter annually from the time of my death and as long as he shall live.
“(B) I hereby direct and provide that no part of the income from the trust estate, and no part of the corpus of said trust estate hereinbefore created for the benefit of my son, OSCAR J. BREATJLT, shall ever be liable in any way for any debts that my said son may at any time contract, or for any debts that he may have contracted, and shall never be liable for any other claim of any kind against him.
“ (C) If at any time, for the proper support and maintenance of my said son, or for any other purpose deemed expedient to my said Trustees, it shall be advisable to pay unto said OSCAR J. BREATJLT, any sums greater than the annual net income derived from my said Estate so held for the benefit of my said son, then I direct my said Trustees, to pay such sums unto said OSCAR J. BREAULT, and in order to raise additional sums, I direct and empower my said Trustees, in their discretion, to mortgage, pledge, or sell any portion of the said Trust Estate for their benefit; if such action seems necessary.
“I desire my Trustees to so administer the Trust herein created so that in their dealings with my said son, they shall as nearly possible deal with and treat him as I would myself were ! living.
“(D) Upon the death of my son, OSCAR J. BREAULT, the property of the Trust Estate shall be distributed according to the provisions and terms of the Last Will and Testament of my said son, OSCAR J. BREAULT, and. if he shall fail to execute a Will, or if such Will shall not be admitted to probate, I hereby direct distribution of said Trust Estate in the following manner:
“One-third (%) thereof to the LITTLE SISTERS OF THE POOR of Chicago.
“One-third (%) thereof to the ST. HED-WIG INDUSTRIAL SCHOOL FOR GIRLS, 7135 No. Harlem Avenue, Niles, Illinois.
“One-third (%) thereof to the POLISH MANUAL TRAINING SCHOOL FOR BOYS, 7135 N. Harlem Avenue, Niles, Illinois.
“(E) If in the sole judgment of the Trustees, the income payable to my son, OSCAR J. BREAULT shall at any time be, in their judgment insufficient to provide for any unusual expense caused by illness, operation, or other physical incapacity, or to provide for proper support, then the Trustees are authorized to apply for such purposes, such sum or sums from the principal of the Trust Estate as in their judgment appears to be necessary.
“(F) All payments of income or distribution of principal to OSCAR J. BREAULT hereunder, shall be made to said OSCAR J. BREAULT in person, or upon his personal receipts, and not be liable or taken for any obligation of said beneficiary, including alimony.
“(G) At any time after three years of administration of this Trust, the Trustees named herein or their successors, feel that my said son, OSCAR J. BREAULT, has become competent to personally handle the corpus of this Trust, the aforesaid Trustees are hereby given the power to terminate this Trust and to deliver to my said son, the entire corpus of this, my Trust.”

Kathryn’s estate included all the stock of Brolite Company, Inc., title to which passed to Feigenholtz and Dahm as trustees on the closing of Kathryn’s estate on June 8,1953.

Oscar died on July 16, 1959, and Feigenholtz was appointed administrator to collect on August 5, 1959. An instrument purporting to be the will of Oscar was admitted to probate on October 14, 1959, with Feigenholtz acting as executor. The residuary clause of the purported will devised Oscar’s property and any property subject to power of disposition under the terms of Kathryn’s will to Feigenholtz as Trustee. Estelle Breault, Oscar’s third wife, was to receive the income for her life and upon her death the income was to be paid in equal shares to William, Bonnie and Kenneth, Oscar’s three children, until the youngest reaches the age of 40 years. The corpus was then to be distributed to the three children (five percent each) and Wesley Memorial Hospital (eighty-fivepercent).

On July 1, 1960, plaintiffs filed a petition to contest Oscar’s will in United States District Court which was subsequently dismissed for want of federal jurisdiction on December 19, 1966, “without prejudice to plaintiffs right to institute said action in the Circuit Court of Cook County, Illinois.”

On June 1, 1965, the United States District Court in Breault v. Feigenholtz, 250 F Supp 551 (1965), a declaratory judgment action, stated in its declaratory decree:

“That St. Hedwig Industrial School for Girls, Polish Manual Training School for Boys and Little Sisters of the Poor of Chicago, were given remainders under the last will and testament of Kathryn M. Breault, deceased, which remainders vested upon her death, subject to defeasance should Oscar J. Breault exercise by his will the power of appointment bestowed upon him by the said will of his mother, Kathryn M. Breault, deceased; and that should the last will and testament of Oscar J. Breault, deceased, which exercised said power of appointment, be set aside, the said remainders would vest in possession of said three charities, and they would then be entitled to the property in the trust under the last will and testament of Kathryn M. Breault, deceased; that the trust under the will and testament of Kathryn M. Breault, including the distribution and provisions thereof, is valid.”

The Little Sisters of the Poor then assigned their vested remainder interest under Kathryn’s will to plaintiffs on April 1, 1966.

On August 17, 1967, plaintiffs reinstituted the contest of Oscar’s will in the Circuit Court of Cook County where it is now pending.

Plaintiffs filed this action on February 6,1968, in their joint capacities as beneficiaries under the will of Oscar and as assignees of the vested remainder under the will of Kathryn. They alleged that the trustees had failed to account to any of the interested parties since the death of Oscar. Plaintiffs further alleged various acts of waste and mismanagement by the trustees Feigenholtz and Dahm and contended that they are trustees de son tort. Based upon these allegations plaintiffs requested appointment of a receiver and an accounting.

Defendants moved to strike the complaint and dismiss the cause contending the assignment of the remainder interest of the Little Sisters of the Poor is null and void as a violation of clause “Sixth” of Kathryn’s will. The court held the interest of the Little Sisters of the Poor to be nonassignable and sustained defendant’s motion to dismiss as to plaintiffs in their capacity as assignees of the charity. However, the court retained jurisdiction of the cause as to plaintiffs in their capacity as beneficiaries under the will of Oscar pending the outcome of the will contest.

Plaintiffs appeal contending that the trial court erred in holding clause “Sixth” applicable to the Little Sisters of the Poor and that even if the clause were applicable, it would constitute an invalid restraint on alienation.

OPINION

Plaintiffs maintain that the word “beneficiaries” in clause “Sixth” refers only to the single income beneficiary, Oscar Breault, and that therefore, the clause presented no bar to the assignment of the vested remainder of the Little Sisters of the Poor. Plaintiffs’ argument is based on the premise that the will is a product of “careless draftsmanship,” which is best illustrated by the second paragraph of clause “Sixth.” The paragraph provides for payments of income to minor beneficiaries. However, at the time of execution of the will, the only income beneficiary had already attained majority. Plaintiff also emphasizes the observations of the courts in In re Estate of Breault, 29 Ill2d 165, 177, 193 NE2d 824 (1963) and Breault v. Feigenholtz, 250 F Supp 551, 559 (1965) wherein the language of the will is referred to as “careless draftsmanship” and “ill chosen words.”

Plaintiffs contend that the word “beneficiaries” is also a product of this imperfect rhetoric, in view of the intention evinced from the entirety of the document. Plaintiffs’ initial observation is that Kathryn distinguished “payments” of income from “distribution” of corpus. Clause “Sixth” provides “Payments to all beneficiaries” which the plaintiffs reason refers to income disbursals. Additionally, the second paragraph of clause “Sixth” immediately following the purported bar to assignment, provides “pay such income.” Plaintiffs reason that the phrase “pay such income” refers back to the preceding paragraph’s “Payments to all beneficiaries,” thereby further defining the singular applicability of the first paragraph.

Plaintiffs next contend that only if clause “Sixth” is limited to payments of income to Oscar, do clauses “Tenth (B)” and “Tenth (F)” provide purpose. These clauses then protect Oscar from creditors, not only in respect to income, but also with respect to distributions of principal. Plaintiffs then state that clause “Tenth (G)” demonstrates Kathryn’s overriding concern was for Oscar, implying a reason and purpose for clause “Sixth” not demonstrated in relation to the three charities.

However, defendants perceive no such intent to exclude the charities from the limitation of clause “Sixth” and rely heavily upon the use of the plural “beneficiaries” as indicative of Kathryn’s intent to prevent a “discount” sale of the charitable interests. Defendants disagree with plaintiffs distinction of “payments” of income from “distribution” of corpus and cite the first paragraph of clause “Tenth” which provides:

“The Trust Estate shall be distributed both as to income and principal, in the following manner:”

Defendants further contend that if clause “Sixth” is a limitation pertaining only to Oscar’s income payments, then clauses “Tenth (B)” and “Tenth (F)” would be complete duplications as applied to the income beneficiary.

The cardinal rule to be observed in construing a will is that the intention of the testator, as evidenced from the language of the will, is to be followed, Caracci v. Lillard, 7 Ill2d 382, 130 NE2d 514 (1955). Effect must be given to the whole will, since the testator’s intention cannot be determined from the language of any particular clause, phrase or sentence. Williams v. Fulton, 4 Ill2d 524,123 NE2d 495 (1954).

Defendants place undue emphasis upon the plural “all beneficiaries” in derogation to the intention of Kathryn as evidenced by a reading of the entire will. It is difficult to garner any clear intention from clause “Sixth” itself. The second paragraph is completely inoperative as never being applicable to any state of affairs before or after the testator’s death. The second paragraph relates back to the first paragraph as to payments of income only, while the plural “all beneficiaries” is referred to in the first. These ambiguities are further compounded by the fact that clause “Sixth” will be duplicative of other clauses no matter how it is construed.

However, a reading of the entire will gives rise to a recurring theme, protection of Oscar from himself and his creditors. Clauses “Tenth (B)” and “Tenth (F) ” both provide protection for Oscar from creditors. Clause “Tenth (G) ” evidences testator’s belief that Oscar was incompetent to handle large sums of money.

There is no such concern evidenced on behalf of the vested remaindermen, unless clause “Sixth” is construed to be applicable to them. However, to so construe the clause would hardly do justice to the intention of the testator as evidenced by the rest of the will. Additionally, clause “Sixth” pertains to “payments.” In all other clauses of the will “payments” refer to income disbursals, thereby negating by implication any intention to include the remaindermen within the provisions. It is apparent to this court that Kathryn’s intention was to prevent assignments by Oscar against his best interests.

Therefore, we feel the language of the will, and in particular clause “Sixth” evinces no intention to bar assignment of the remainder interests bequeathed to the charities. The assignment of the remainder to plaintiffs was valid and the trial court erred in holding it violative of the provisions of the will. The judgment is reversed and the cause remanded.

Reversed and remanded.

ENGLISH and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Sectoria Madison, a Minor, by Abbie Madison, Her Mother and Next Friend, Plaintiff-Appellee, v. Jacob Reuben, Defendant-Appellant.
    Gen. No. 53,457.
    First District, Third Division.
    July 16, 1970.
    Rehearing denied September 17, 1970.

      Earl B. Lichten, of Chicago (Sidney Z. Karasik, of counsel), for appellant.

      Arnold and Kadjan, of Chicago (Daniel N. Kadjan, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Sectoria Madison, a minor, by Abbie Madison, her mother and next friend, sued the defendant, as owner-lessor of the building in which she and her family resided, for injuries sustained in a fall from a window in the building. Jury being waived, the case was tried by the court who found for plaintiff and entered judgment in the sum of $15,000. Defendant on appeal contends that his post-trial motion for judgment in his favor should have been allowed or his motion for a new trial granted. He contends that no act or omission of his was the proximate cause of plaintiff’s injuries; that plaintiff was guilty of contributory negligence as a matter of law, and that the finding and judgment are against the manifest weight of the evidence. In addition he makes other minor charges which will be later considered.

On July 29, 1965, plaintiff Sectoria Madison, then ten years old, resided with her family in a third-floor apartment at 1962 South Hamlin Avenue in the City of Chicago. The building was a three-story structure, with one other apartment on the third floor. That apartment was unoccupied at that time because of damage by fire nineteen days earlier. Both apartments were served by a common front stairway. That portion of the stairway which ran from the second to the third floor consisted of two sections of equal length separated by a landing. A large window, the sill of which was nineteen inches above the floor of the landing, overlooked Hamlin Avenue. In the late afternoon of the day mentioned, plaintiff was severely injured when she fell to the ground through the window opening. As the issues involved are largely factual, we will summarize the testimony.

Plaintiff testified that on the afternoon in question she was playing with her brother in their apartment when she heard a baby crying and started downstairs to investigate. As she descended the front stairs, an empty potato chip bag lying on the steps became tangled on her foot. She stopped on the landing and tried to kick it from her shoe. Being unsuccessful, she sat on the windowsill and tried to remove the bag with her hand. The two panes of glass and upper and lower sashes of the window had been missing since a fire nineteen days earlier in the third-floor apartment which had been occupied by a neighbor. As plaintiff worked to free her shoe of the bag, she fell backward through the empty window. The staircase was littered with candy papers and other debris left when the fire was extinguished. Plaintiff remembered only one occasion on which the janitor had swept the stairs.

Plaintiff’s mother testified that approximately two weeks before her daughter was injured, there was a fire in the third-floor apartment before mentioned. She testified that while the firemen were working to extinguish the blaze, they broke both of the windowpanes and the upper and lower sashes of the window in question and scattered debris in the hallway. She further testified that the window had not been repaired, nor had the debris been cleaned up at the time of her daughter’s injury. She did not see the plaintiff at the time the injury occurred.

Davies Gardner testified that on the day in question she was standing across the street from the front entrance to the building at 1962 South Hamlin Avenue. She was talking with a friend, when she noticed the plaintiff sitting on the ledge of the window at the second-floor landing. She observed that plaintiff was leaning against the window frame with her legs crossed over the sill. About five minutes later she saw the plaintiff falling out of the window. On cross-examination, the witness admitted that she was not employed and that she was a resident of the building involved. She was not a resident at the time the plaintiff was injured.

Otis Keith, the janitor and handyman of the building in question at the time of the occurrence, testified that he swept the hallways at least once a week, that at the time of the occurrence there was no loose plaster on the stairway and that following the fire, the hallway had been cleaned of debris. He denied that the firemen had knocked out the window on the landing and testified that on the day before the accident the window was in place and was nailed shut. On the day following the accident he noticed that the window was missing. He further testified that he had asked plaintiff’s mother to stop the plaintiff from sitting on the windowsill. One Davidson, the janitor’s helper, testified that he cleaned the premises three times a week and that the window was in place on the day before the accident.

We will consider first the defendant’s contention that the trial court’s findings and judgment are against the manifest weight of the evidence. While some conflict appears in the evidence, the trial court found the testimony of Davies Gardner, the eyewitness to the accident, totally unworthy of belief and noted that Otis Keith’s testimony was not entirely consistent. On the other hand, he considered the plaintiff to be a very intelligent young woman who was forthright in her testimony. There is no merit in the defendant’s contention that the finding of the court was against the manifest weight of the evidence.

We proceed to consider defendant’s contention that no act or omission of his was the proximate cause of plaintiff’s injury. The Illinois Pattern Jury Instructions define proximate cause as “that cause which, in natural or probable sequence, produced the injury complained of.” IPI No. 15.01. The difficulty of subjecting the causal relationship to precise logical analysis has been the subject of judicial comment. See, Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74; Ostergard v. Frisch, 333 Ill App 359, 77 NE2d 537. In Ney the court held that a question of proximate cause is ordinarily one for a jury to decide and should not be determined as a matter of law when composed of such qualities as to cause reasonable men to reach different results.

In addition to the evidence hereinbefore set forth, a photograph (Defendant’s Exhibit No. 7) of the window in question with the sashes and windowpanes in place was admitted. It shows the windowsill nineteen inches above the floor of the landing and approximately seven inches wide. The sash appears to be of sturdy construction and mounted in the window frame in such a way that it cannot be said plaintiff would have been injured had they been in place at the time of the accident. The trial judge found that if the sash had been in place as it appeared in the photograph, “she [plaintiff] never could have fallen out the window.” Whether defendant’s failure to install the necessary sash and windowpanes was the proximate cause of plaintiff’s injury was an issue on which reasonable men could differ. It was, therefore, properly one for the trier of fact to decide.

The cases cited by the defendant to support his position with respect to proximate cause are not persuasive. We will consider three which are in some aspects related to the case at bar. In each of these cases the plaintiff fell through a screen. In Crawford v. Orner & Shayne, Inc., 331 Ill App 568, 73 NE2d 615, the plaintiff, a three-year-old whose parents were tenants in a building owned by the defendant, fell through a window which was alleged to have been fitted with a defective screen. At the close of the plaintiff’s case in chief a verdict was directed for the defendant. On appeal, the Appellate Court held that since it was not the purpose of window screens to prevent persons from falling out of windows, liability could not be imposed, since the plaintiff’s injury was not the result of the defendant’s failure to perform any duty owed her. Gasquoine v. Bornstein, 10 Ill App2d 423, 135 NE2d 121, was an action brought on behalf of a seventeen-month-old child against the landlord of the building in which he and his family resided. The plaintiff sought to recover for personal injuries sustained when a window screen against which he was leaning gave way and caused him to fall to the ground. The court adopted the holding of the court in Crawford, supra, finding the defendant not guilty and distinguished a number of cases in other jurisdictions which were cited by the plaintiff. In Rogers v. Sins, 349 Ill App 353, 110 NE2d 643, the plaintiff, a two- and a half-year-old child, brought an action by his next friend against the landlord of the building in which he and his family resided for personal injuries suffered when a window screen gave way, causing the plaintiff to fall to the ground. The window involved was located in a common hallway, whereas in Crawford and Gasquoine the window was part of the demised premises. The defendant in the Rogers case was charged with negligence in permitting the screen to become loose. The trial court entered judgment on the verdict for the plaintiff. On appeal the Appellate Court held that the defendant did not have a duty to furnish screens which could not be pushed out by a child.

The windowsill on which the plaintiff in the instant case seated herself was located at a landing in a stairway which joined the second and third floors of the building. It served the two apartments on the third floor. It was clearly a common area over which defendant had retained control even though a fire had forced the tenants in the other third-floor apartment to vacate the premises nineteen days before plaintiff was injured. Murphy v. Illinois State Trust Co., 375 Ill. 310, 31 NE2d 305; Fowler v. Crilly, 187 Ill App 399; Rosseu v. Goodridge, 185 Ill App 164; Cwiklik v. Hrejsa, 167 Ill App 268; Fenno v. Cullen, 162 Ill App 283. Whether defendant breached a duty owed to the plaintiff is ordinarily a question of fact which should be decided by the trier of fact. Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74.

Defendant also contends that the plaintiff is guilty of contributory negligence as a matter of law. He argues that since the court described the plaintiff as a very intelligent young woman, her decision to sit on the windowsill must be deemed to have been negligence as a matter of law. At the time plaintiff was injured she was ten years old and was required to exercise that measure of care for her own safety which a reasonably careful person of the same age, intelligence, capacity and experience would exercise under the same or similar circumstances. Hartnett v. Boston Store of Chicago, 265 Ill 331, 106 NE 837; Wegler v. Luebke, 87 Ill App2d 82, 231 NE2d 109; Wolf v. Budzyn, 305 Ill App 603, 27 NE2d 571; Pence v. Hines, 221 Ill App 584. Whether plaintiff exercised due care for her own safety was for the trier of fact to decide. Dickeson v. Baltimore & O. C. T. R. Co., 42 Ill2d 103, 245 NE2d 762; Maskaliunas v. Chicago & W. I. R. Co., 318 Ill 142, 149 NE 23. The judgment of the trial court is supported by ample evidence.

Defendant argues that he was unduly restricted in his cross-examination of two witnesses for the plaintiff and that the trial judge was not fair and impartial because he admonished one of the defendant’s witnesses not to repeat counsel’s questions before giving his answers and because he “did not believe anything” that another witness said. As there was no jury in this case and the judge was the trier of fact, a greater latitude may properly be allowed for the comments a judge may make in the course of a trial. Moreover, his comment with respect to his disbelief of the testimony of one of the witnesses was properly made at the close of the case. We find no reversible error and the judgment is accordingly affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: ALLOY, J.

text:
    John Nolan, Plaintiff-Appellant, v. Shaf Manufacturing Company, a Corporation, et al., Defendants-Appellees.
    Gen. No. 69-119.
    Third District.
    August 4, 1970.

      Bozeman, Neighbour, Patton & Noe, of Moline, for appellant.
    Graham, Califf, Harper, Benson & Fox, of Moline, for appellees.
   ALLOY, J.

This cause originated as an action filed by plaintiff John Nolan as against Shaf Manufacturing Company, and Vernon W. Furrow and C. D. Williamson, d/b/a Cashway Lumber Company, seeking damage for personal injuries sustained when a ladder collapsed February 17, 1965. A jury verdict was returned in favor of plaintiff as against defendant Shaf Manufacturing Company in the amount of $7,000. The verdict was in favor of defendant Cashway Lumber Company and such defendant is not involved in the present appeal. Following such verdict, the trial court granted defendant Shaf Manufacturing Company’s motion for a directed verdict which had been filed at the close of all the evidence and upon which a ruling had been reserved. The court thereupon set aside the judgment which had been entered for plaintiff on the jury’s verdict and entered judgment for defendant Shaf Manufacturing Company. Plaintiff appeals from such order.

Plaintiff John Nolan, 36 years of age, was in the siding and roofing business. On February 18, 1965, he purchased a 24-foot aluminum extension ladder from Cash-way Lumber Company in Davenport, Iowa. The ladder was manufactured by Shaf Manufacturing Company, a Pennsylvania corporation. Before making the purchase, plaintiff told the salesman the use to which he would put the ladder, and the salesman assured Mm that the ladder would hold up to 1,000 pounds. Plaintiff used the ladder about 9 times prior to April 17, 1965. The ladder was stored overnight in plaintiff’s locked garage, except that while it was being used on the job, it was usually stored in the customer’s garage. On the particular job where plaintiff was injured, there was no garage, so the ladder was kept outside and covered up at night with aluminum foil. The ladder was inspected each day before use by plaintiff and prior to April 17, 1965, a slight bow developed on the bottom rung. Plaintiff stated that this bow was caused by applying pressure when setting the ladder on the ground and preparing to use it. This bow was not shown to be a factor in the failure of the ladder.

On the second day of the particular job (April 17, 1965), plaintiff reset the ladders following lunch. A wooden ladder and the aluminum ladder purchased from Cashway were set up against the house and ladder jacks were used to allow a plank to be set between the ladders. The aluminum ladder was extended to 20 feet and the plank was set so that it was level and extended the same distance out beyond each of the ladders. The base of the aluminum ladder was 5 feet out from the house. Plaintiff was sitting in the center of the plank and Mr. Poole, his helper, was starting up the aluminum ladder with material. The combined weight of the plaintiff, Mr. Poole, the plank, the material being carried, and the ladder jacks, was about 400 pounds, with approximately 285 pounds being on the aluminum ladder. As Mr. Poole started up the ladder, plaintiff heard a crack and the next thing he knew, he was on the ground, after falling about 18 feet. The lower section of the aluminum ladder had buckled, causing the ladder to be bent into a shape like an “L.” The two sections of the ladder did not come apart. Plaintiff sustained a broken right anHe and taiibone, lost work, and had medical expenses.

Following the accident, Hr. Buck, a representative of American States Insurance Company took the ladder to Ms warehouse. American States was the workmen’s compensation carrier for Quint-City Improvement Company, which was the firm through which plaintiff obtained the job on which he was working. American States was in no way involved in the instant case. While it was in the warehouse, the ladder was photographed by representatives of both plaintiff and the defendant, Shaf Manufacturing Company. Plaintiff’s attorney attempted to locate the ladder thereafter, before the trial, for use at the trial but the ladder could never be located.

Mr. Ekblad, the owner of the house on which plaintiff was working at the time of the accident, testified that the ladder was bent in the shape of an “L” after the accident. He stated there was also an extra twist on one of the rails and that no one tampered with the ladders while they were stored at his house. One of the partners in Cashway Lumber Company testified that Cashway had nothing to do with the ladders after they are received from Shaf Manufacturing Company and that the ladders were stored and then sold.

Mr. Merion, the President of Shaf Manufacturing Company, testified as an expert witness. He stated that the company’s ladders could hold 1,200 pounds and are tested for 800 pounds. He stated that all rail material is tested for hardness and density, and, eventually, 12 to 15 percent of the material goes into the manufacture of a test group of ladders. There are random checks made of the other 85 to 88 percent of the ladders. Mr. Merion was also asked, "If one of your ladders is extended to 20 feet in length with the base being 5 feet out from the wall against the floor itself, leaning, and the ladder buckles under a weight of 285 pounds, would it be a fair statement that there is something wrong with the ladder ?” Mr. Merion answered, “It would seem that there is something wrong with it, yes.” As we have indicated previously, the jury returned a verdict of $7,000 against Shaf Manufacturing Company, and, also, a verdict in favor of defendant Cashway Lumber Company. Defendant Shaf Manufacturing Company submitted two special interrogatories to the jury. The first interrogatory asked if plaintiff failed to exercise ordinary care. The jury answered this question in the negative. The second question asked if the ladder was in an unreasonably dangerous condition when it left Shaf. The jury answered that it was. In defendant’s post-trial motion, no mention was made of the two special interrogatories. The trial judge allowed the post-trial motion and ordered that the motion for directed verdict made by defendant Shaf at the close of all the evidence be allowed. The jury verdict in favor of plaintiff was set aside.

The first question for consideration is whether it was proper for the trial judge to set aside the answers to the special interrogatories when there was no specific objection made to such interrogatories in defendant’s post-trial motion. As indicated, the jury answered that plaintiff was not guilty of contributory negligence, and, also, that the ladder was in an unreasonably dangerous condition at the time it left the control of defendant, Shaf Manufacturing Company. The order of the court, in effect, set aside the special findings of the jury. Plaintiff contends that this was improper on the authority of Quagliano v. Johnson, 100 Ill App2d 444, 241 NE2d 187 and Westlund v. Kewanee Public Service Co., 11 Ill App 2d 10, 136 NE2d 263. Each of these cases differs from the case before us in that the appellant in such cases had failed to specifically question the special finding at the trial court level and raised the question for the first time on appeal. In the Quagliano case, plaintiff had submitted special interrogatories which the jury answered in such manner as to show plaintiff had failed to sustain his burden of proof. There was also a general verdict by the jury in favor of defendant. Plaintiff made no objection to such special findings and did not mention them in his motion for a new trial. When plaintiff reached the appellate court level, he was met with the objection that he had failed to attack the special findings at the trial court level. The Appellate Court held that such failure was fatal to his contention that the verdict was against the manifest weight of the evidence. The court pointed out that unless a party moves to set aside the answer to the special interrogatory or attacks it in a motion for a new trial, the special findings are considered to have been fully supported by the evidence. The Westlund case is similar except that it was defendant in the Westlund case who failed to make the objection to the jury’s special finding. In that case the court also emphasized that no objection was made to the special findings in the motion for new trial. In the cause before us, the special findings and the jury’s verdict were consistent since both found for the plaintiff. The trial court then set aside the verdict for the plaintiff by allowing plaintiff’s motion for a directed verdict.

If the post-trial motion had been denied and defendant had appealed then, the cause before us would have been similar to the Quagliano and Westlund cases, and defendant could not have questioned the special findings on appeal. The trial judge, therefore, had the power to set aside the special findings even though such findings were not objected to specifically by defendant in the post-trial motion. This authority of the trial judge to set aside special findings on his own motion has been recognized in such cases as Freeman v. Chicago Transit Authority, 33 Ill2d 103, 210 NE2d 191, and Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128. As stated by the court in Freeman v. Chicago Transit Authority, 33 Ill2d 103,105-6, 210 NE2d 191:

“The function of a trial judge in determining whether the answer to a special interrogatory is against the manifest weight of the evidence is analogous to his function in determining whether a general verdict is against the weight of the evidence, and his authority to act upon his own motion should be the same in both instances.”

It is also contended, since the order of the trial judge granting defendant’s post-trial motion did not specifically set aside special findings, that the special findings still stand. Since those special findings were consistent with the general verdict for plaintiff, when the trial judge set aside the general verdict, he automatically set aside the special findings and it was not necessary to specifically mention such findings in the order.

The significant question before us is whether the record in the cause now under consideration discloses that plaintiff made sufficient proof for recovery under the precedent of Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. The first subsidiary question involved was whether it was necessary for plaintiff to produce the ladder in court or to at least have it available so that it could be examined by experts. Defendant contends that under the authority of Shramek v. General Motors Corp., 69 Ill App2d 72, 216 NE2d 244, it was necessary for plaintiff to produce the ladder in court or at least allow experts to examine it, before plaintiff could establish a case under the Suvada theory. The Shramek case involved a tire which was purchased on a new automobile on February 3, 1961, which blew up after it had been driven for 10,000 miles 8 months after it was purchased. The court in that case (at pages 77-78) recognized that under the Suvada strict tort liability theory, it is possible in some situations for plaintiff to prove his case by circumstantial evidence, but that in the facts in the Shramek case, circumstantial evidence could not be used. The court stated:

“It would be incumbent upon plaintiff to prove the essential elements of his case by either direct or circumstantial evidence. The record shows that this would be an impossibility. Whether the charge is breach of implied warranty, negligence or the strict tort liability now recognized in both Illinois (Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 [1965]) and California (Greenman v. Yuba Power Products, Inc., 59 Cal2d 57, 377 P2d 897 [1963]), the cornerstone of plaintiff’s cause of action is the existence of a defect in the tire at the time it left the control of the manufacturer or seller. Without this proof his case must fall.”

The court recognized that because of the type of article involved (an automobile tire) and the use which it had been subjected to since leaving the manufacturer (over 10,000 miles in 8 months’ use), circumstantial evidence could not be used as the sole basis for showing the defect. The court stated in that case (at page 78):

“The mere fact of a tire blowout does not demonstrate the manufacturer’s negligence, nor tend to establish that the tire was defective. Blowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the conditions of the roads over which they are driven and the happenstance striking of damaging objects.”

The court did not permit the case to go to the jury since the jury would have no basis to determine whether the tire was defective when it left defendant’s control and whether such defect ultimately caused plaintiff’s injuries.

Following the Shramek case, another important case which is relevant to the issues before us has been determined by the Appellate Court in this State. In Texaco, Inc. v. McGrew Lumber Co., 117 Ill App2d 351, 254 NE2d 584, plaintiff was injured when a wooden scaffolding plank on which he was standing broke in half. Plaintiff settled with certain defendants who then sought to be indemnified under the strict tort liability theory of the Suvada case. The broken plank was not produced at the trial, although there were photographs of the broken plank which were introduced in evidence. There was also testimony as to these photographs which was summarized by the court (254 NE2d at 589):

“First of all, several of plaintiffs’ witnesses testified from experience in the field of scaffolding construction with regard to acceptable standards for lumber used in that field. Special attention was given to the presence of knots in a plank which could cause a defect in such lumber. Then the plaintiff produced several witnesses who testified of the breaking of the plank and identified photographs upon which they noted a portion of the plank where knots in the lumber were identified. On the strength of this evidence, we feel that substantial evidence was introduced which would allow the jury to conclude upon the proof of causation.”

It was argued in the Texaco case that under the Shramek decision it was necessary that the board be brought into court. The court in the Texaco case said (254 NE2d at 589):

“We are of the opinion that the SHRAMEK case is not applicable. We believe that the evidence elicited by the photographs of this plank showed that the knots identified by several witnesses were sufficient to indicate a cause for the break in this plank. It was not incumbent upon the plaintiffs to disprove other possible causes. Furthermore, there was sufficient evidence based on the expertise of several witnesses to substantiate the cause of the break which occurred with this particular plank. We are further convinced of this conclusion by the record which is devoid of any objection made to the introduction of these photographs and their use at the trial.”

We feel that the facts in the cause before us put it more in line with the Texaco decision than with the Shramek case. It is noted, also, that the Shramek case recognized that a defect could, in a proper case, be proven by circumstantial evidence under the Suvada theory. It is necessary to show by circumstantial or other evidence, that the product was in fact defective; that the defect existed at the time it left the hands of the Shaf Manufacturing Company; that the defect made the product unreasonably dangerous; and that the defect was the proximate cause of the injury. The only substantial question is the existence of the defect and whether it existed when it left the hands of defendant Shaf Manufacturing Company.

The evidence which was introduced in the instant case consisted of photographs of the ladder showing it bent at a 90° angle. The evidence disclosed the short period of time which plaintiff had owned the ladder before discovering the defect and the fact that he had used it only about 9 times before the accident. The evidence also disclosed that only about 285 pounds were placed on the ladder when it collapsed, even though it was designed to hold a minimum of 800 pounds. The evidence also established that no outside agency created the defect. All of this evidence was bolstered by the testimony of the president of Shaf Manufacturing Company, who testified that if the ladder buckled under the weight of 285 pounds when extended to 20 feet with the base 5 feet from the wall (the condition in the instant case), there would be something wrong with the ladder. The only evidence of any malfunction of the ladder prior to the collapse was the bow in the bottom rung. It was shown in the record that this could have been caused by plaintiff pushing the ladder into the ground to set it. The bend in the ladder causing the collapse was not in the area of the bowed rung. On the basis of the record before us, we feel that plaintiff made out a sufficient case to go to the jury and the finding by the jury in favor of plaintiff is not contrary to the manifest weight of the evidence. In directing a verdict, the evidence in favor of plaintiff standing alone should be considered. In applying such tests in the instant case it was clearly erroneous for the trial judge to allow the post-trial motion and direct a verdict for defendant (Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504).

It is our conclusion, therefore, that it is not indispensable in a cause, where facts exist as shown by the record in the case before us, that the ladder itself be produced at the trial. The testimony of the president of Shaf Manufacturing Company clearly disclosed that the collapse of the ladder could only result by reason of a defect in its manufacture or a defect in the material of which it was manufactured. The photograph in evidence clearly disclosed the nature of the failure of the ladder. A ladder, such as that involved in the case before us, would not collapse unless there was a defect in it. In the cause before us, plaintiff could not present the ladder itself through no fault of his own since the article was lost and not within his control. There was also a very-short time lapse between the purchase of the article and the discovery of the defect as a result of the accident. The ladder had been in use about nine times and was protected from any other damaging agency in such manner that the defect could reasonably have been determined by the jury to be a preexisting defect at the time of manufacture. The record discloses that there was no opportunity for tampering with the ladder. There is, consequently, a sufficient showing from the testimony of the president of defendant company and other evidence to sustain a recovery for plaintiff. Plaintiff was not relying simply on the collapse of the ladder as proof of the defect.

Since it was error for the trial court to set aside the verdict and the judgment in the cause before us, this cause is reversed and remanded to the Circuit Court of Rock Island County with directions to reinstate the verdict and judgment in the amount of $7,000 in favor of plaintiff John Nolan as against Shaf Manufacturing Company, a corporation.

Reversed and remanded with directions.

RYAN, P. J. and STOUDER, J., concur.


author: MR. JUSTICE ENGLISH

text:
    Maceo Earl, Plaintiff-Appellee, v. John D. Thompson and Alex Kelly, Defendants, and La Salle Casualty Company, a Corporation, Garnishee-Appellant.
    Gen. No. 53,651.
    First District, Fourth Division.
    August 5, 1970.

      Orner & Wasserman, of Chicago, for appellant.
    David Alswang, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Garnishee has appealed from a judgment against it for $15,000, the limit of liability under its policy of insurance issued to defendant Kelly. The cause was disposed of on plaintiff’s motion for judgment, without the taking of any evidence. Plaintiff had obtained an earlier judgment against defendants for $25,000 in a suit for personal injuries resulting from an assault against him by defendant Thompson who was an employee of defendant Kelly. No appeal was taken from that judgment.

Plaintiff then instituted the instant proceedings and garnishee answered plaintiff’s interrogatories denying any indebtedness to defendants. Specifically, garnishee set out two defenses. First, it alleged that its policy with defendant Kelly contained the following endorsement:

Assault and battery endorsement. It is agreed that such insurance as is afforded by the policy for bodily injury liability and for property damage liability does not apply to liability arising out of any assault and/or battery.

It claimed that this endorsement operated as an exclusion of coverage under the facts of the case. Second, it alleged that, under the terms of the policy, a “condition precedent to liability” was that defendant Kelly “afford his assistance and cooperation to garnishee in the defense of any lawsuit filed against him falling within the coverage” otherwise afforded by the policy, and that he failed to do this.

Plaintiff then filed a “Motion To Strike Answers of the Garnishee ... to Plaintiff’s Interrogatories in Garnishment and Enter Judgment.” In support of this motion, he alleged that in the injury action defendant Kelly had filed sworn answers to plaintiff’s interrogatories and that said answers had been prepared by “Morton Meyer, the attorney of record for the said Alex Kelly, and who in truth and in fact at said time was the attorney in charge of and representing the interests of La Salle Casualty Company.” He further stated that, in answer to interrogatory number 5 which read, “State whether the said policy covered or insured Alex Kelly as to the cause of action set forth in plaintiff’s Complaint at Law,” the answer was “Yes.” Interrogatory number 6, in the event of a negative answer to number 5, asked that the policy provision be quoted which exempted plaintiff’s cause of action. The response read “Not applicable.” Plaintiff asserted that these answers stood without attempted modification “until during the trial” of the personal injury cause when defendants’ attorney, who was representing the interests of La Salle Casualty as the insurer of Kelly, moved to amend them; that leave to amend was denied by the court before which the personal injury action was tried. Plaintiff alleged, therefore, that defendant Kelly and garnishee were “estopped from denying the validity and truth” of the answers quoted above, or that they had “been guilty of laches and culpable negligence.” Plaintiff’s motion also argued that the earlier order of the court denying the motion to modify the interrogatory answers had become final and could not be retried in these proceedings.

In further support of his motion to strike the answers of garnishee, plaintiff averred that the defense of lack of cooperation by defendant Kelly could not be raised, since motions to withdraw and for a continuance by defendants’ attorney had been denied by the court in the personal injury action. He argued that this also constituted a final and binding adjudication on the issue of lack of cooperation.

Garnishee subsequently filed its “Answer of Garnishee Defendant to Plaintiff’s Motion To Strike Garnishment Answers and for Judgment.” It alleged therein that, prior to trial of the injury suit, it had sent a letter to plaintiff’s attorney informing him that garnishee afforded no liability coverage for the incident because of the exclusion contained in the assault and battery endorsement. The answer also averred that garnishee had assumed the injury suit defense pursuant to a reservation of rights. Answering further, garnishee stated that the Answers to Interrogatories in the injury suit, which had admitted coverage, had been “filed in error” by the attorney who had represented defendants in that litigation. It also denied that the trial court’s refusal to permit correction of that mistake by the filing of amended interrogatory answers in the injury suit constituted an adjudication on the merits of the coverage exclusion. Garnishee urged that estoppel was improper since plaintiff was aware of the exclusion and that, at any rate, there could be no waiver of a clear and unequivocal exclusion. It also averred that lack of cooperation on the part of the insured raised a factual question which could not be disposed of by motion.

Upon consideration of plaintiff’s motion and garnishee’s answer, the court entered judgment against garnishee and this appeal followed.

In this court, garnishee contends that the trial court’s rulings in the injury action did not preclude it from asserting its coverage defenses under the policy in the instant garnishment proceeding. Plaintiff asserts that the issue of coverage had been presented and ruled upon by the trial court in the injury action, and could not again be raised. The first such ruling in the injury action followed defense counsel’s motion to correct defendant Kelly’s answers to interrogatories 5 and 6 on the ground that coverage had been admitted by mistake. In denying the motion, the court stated:

. . . what you are attempting to do is to make an oral motion to take out the answers to interrogatories which were answered by Mr. Kelly under oath.

At the time that he signed the interrogatories and I don’t believe it is correct, it would not be correct for me to permit this alteration, especially by making an oral motion.

More especially in view of the fact that the alterations which you wish me to permit you to make is an alteration that is totally damaging to Mr. Kelly’s interest and, really, in my opinion, you should not be making this motion.

Plaintiff submits that this denial amounted to a final adjudication of the issue of coverage since no appeal was taken from the injury judgment. However, analysis of the court’s statement leads us to a different conclusion. The court indicated that it viewed the answers as those “which were answered by Mr. Kelly under oath.” In denying the motion, together with defense counsel’s accompanying motion to withdraw from the case, the trial judge pointedly offered his rationale, which was that the motion “is totally damaging to Mr. Kelly’s interest,” who was not present at the trial which was then in its second day. The trial judge was necessarily concerned with the timeliness of the motions and their repercussions to defendant Kelly, and, in the case then on trial before him, could not have intended to render a binding judgment on the issue of policy coverage. We are of the opinion that garnishee is free to assert its noncoverage defenses, since the issue of coverage was not adjudicated in the prior proceeding.

In addition, the principle of res judicata is inapplicable because there is not an identity of parties in the two causes. While it may be true that the attorney who represented defendants in the injury action had been retained by La Salle Casualty, it is a non sequitur to conclude, as plaintiff does, that La Salle Casualty was thus the “real party in interest” in both suits. See Sobina v. Busby, 62 Ill App2d 1, 210 NE 2d 769. The doctrine of res judicata is applicable only where the former suit was between the same parties or their privies, and then only as to questions which were, or might properly have been, litigated. City of Peoria v. Peoria City Lines, Inc., 24 Ill2d 457, 461, 182 NE2d 164. Here, the difference in parties renders the doctrine inapplicable to the instant action. So also does the difference in issues. The prior ruling relied on by plaintiff was preliminary or ancillary to the pending trial in the injury suit. The issue of coverage was not before the court, thereby precluding not only res judicata but estoppel by verdict as well. In fact, any attempt to offer evidence on that issue would have been clearly inadmissible. See Welborn v. Illinois Nat. Cas. Co., 347 Ill App 65, 69, 106 NE2d 142; and Gould v. Country Mut. Cas. Co., 37 Ill App2d 265, 283, 185 NE2d 603. (We will not here go into the history of the rule which permits discovery of insurance coverage in an injury action, except to note that it does not relate to the issues raised by the pleadings in such a case.)

Plaintiff maintains, in effect, that the instant case provides an exception to the strict application of the doctrine. He argues that garnishee, as defendants’ insurer, by assuming complete control of the defense in the former action, is estopped from claiming, or has waived, its defense of noncoverage. There is strong support for this proposition. In Bourne v. Seal, 53 Ill App2d 155, 166, 203 NE2d 12, the case was decided on an exception to what the court recognized as the general rule of estoppel in insurance cases to the effect that:

... an insurer, who assumes the defense of its insured, is later estopped from denying coverage or from raising any policy defense to the loss resulting from an adverse judgment. [Citations omitted.]

However, as set forth above, garnishee alleged that it had assumed defense of the earlier action pursuant to a “reservation of rights,” thus preserving its noncoverage defenses under the policy. The record is devoid of any contradictory statement or evidence with regard to this assertion. As to this point, therefore, a ruling in favor of garnishee rather than plaintiff would have been appropriate. If plaintiff had contested this point, then there would have been a “genuine issue as to any material fact” which would also render summary judgment inappropriate. Ill Rev Stats 1967, c 110, § 57.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

STAMOS, P. J. and DRUCKER, J., concur.


author: JUSTICE LEIGHTON.

text:
    People of the State of Illinois, Appellee, v. Richard Bradley, Appellant.
    Gen. No. 53,833.
    First District, Fourth Division.
    August 5, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE LEIGHTON.

Not to be published in full.


text:
    Anna R. Simonson, Plaintiff-Appellee, v. Karl O. Simonson, Defendant-Appellant.
    Gen. No. 53,863.
    First District, Fourth Division.
    August 5, 1970.

      Jerome Berkson, of Chicago, for appellant.
    Shaheen, Lundberg & Callahan, of Chicago (John M. Burke and James J. O’Meara, Jr., of counsel), for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Defendant appeals from a decree that awarded plaintiff a divorce based upon mental cruelty, denied defendant a divorce based upon desertion and awarded custody of their six-year-old daughter to plaintiff. The decree also directed defendant to pay the sum of $40 per week to plaintiff for child support and provided that the court retain jurisdiction to hear evidence regarding alimony.

Defendant argues the following contentions:

(1) There is a total lack of evidence that defendant’s conduct caused plaintiff’s life or health to be endangered;

(2) Plaintiff condoned all of the acts complained of;

(3) Plaintiff’s departure and her living separate and apart from defendant were unjustified and entitled defendant to a decree of divorce on the grounds of desertion;

(4) The court abused its discretion in awarding custody of their child to plaintiff; and

(5) Plaintiff failed to allege and prove lack of provocation.

Plaintiff’s complaint alleged fifteen specific allegations of defendant’s conduct toward plaintiff that allegedly caused her severe and extreme mental anguish. It was further alleged that as a result plaintiff suffered a severe breakdown that required her hospitalization and placed her in great fear for her mental and physical well-being.

Defendant answered and denied each specific allegation of misconduct toward plaintiff; that if the allegations were true, they were all condoned by plaintiff and are of themselves glaring evidence of the emotional instability and mental incapacity of plaintiff and not sufficient to establish a cause of action for mental cruelty.

The allegations and proof of defendant’s misconduct, with the exception of a few instances, related to a period of time of approximately a year before the parties separated. The parties were married on May 11, 1961, after a 4-month courtship, and separated on August 30, 1967.

Plaintiff testified and also called upon next door neighbors, a family friend and two treating psychiatrists to testify in support of her allegations.

Defendant testified and denied each accusation of misconduct toward defendant and related general and specific instances of his devotion, affection and concern for plaintiff and his efforts to accommodate her personality. A salesman who frequented the parties’ home and delicatessen testified that defendant always treated plaintiff with respect and decency and never cursed or abused her.

Plaintiff’s evidence revealed that defendant criticized plaintiff in public and private regarding her housekeeping abilities, repeatedly boasted about his premarital relations, unfavorably compared plaintiff with these other women, struck her with a rolled up newspaper on the face and head, causing her great pain, and twisted her leg on another occasion, causing her great pain and anguish. The evidence further revealed that defendant called her “nuts,” threatening to send her to the “nut house,” advised others that plaintiff was “nuts,” constantly cursed and swore at plaintiff, repeatedly telling her to return to Norway, constantly remained out late at night, possessed and publicly displayed pornographic pictures and magazines in her presence, refused to introduce plaintiff as his wife and constantly caused her humiliation and embarrassment before their friends, relatives, customers and employees at defendant’s delicatessen store.

Plaintiff testified that shortly after her marriage she realized her husband was a personality with three sides and that she had made a bad marriage, but endeavored to make it work, although she was very unhappy because he mistreated her.

In 1964, plaintiff developed nervousness and on medical advice took tranquilizers and sleeping pills for a few days. She had no further difficulty until February, 1967, when plaintiff became very nervous and experienced vomiting spells and diarrhea. She lost her appetite, became nauseous, suffered from insomnia and began to lose weight. She prevailed upon her mother-in-law to drive her to the Edgewater Hospital, and testified that she did not have anyone else to assist her, and could not rely upon defendant. After a two-week period of hospitalization, it was determined that plaintiff was in need of psychiatric care to prevent her “anxiety reactions” and was referred to the Northwestern University Clinic for examination and treatment. Plaintiff made some visits to the clinic during the summer of 1967 but felt she was not being helped. Plaintiff testified that during this period of her illness, she pleaded with defendant on her knees and implored him to at least treat her as his friend. She told defendant that she was desperate and needed his help, but defendant laughed and threatened her with incarceration in an institution for the mentally ill. Plaintiff testified that defendant’s threat was the “biggest scare” in her life.

In September, 1967, plaintiff’s condition had not improved and she prevailed upon her sister-in-law to drive her to Billings Hospital, where plaintiff was hospitalized and treated in the psychiatric clinic for six weeks. Her symptoms were similar to those she exhibited in.February, 1967, and her condition was diagnosed as “depressive reaction,” for which she was afforded treatment. It was the opinion of the psychiatrists that her marital difficulties were a major contributor to the need for hospitalization. Two other emotional events in plaintiff’s life they deemed significant were plaintiff’s miscarriage in August, 1966, and the fact that her daughter in February, 1967, attained the same age that plaintiff had when plaintiff’s first sibling was born. Plaintiff was discharged from the hospital on October 26,1967.

After plaintiff’s separation from defendant in August, 1967, and her subsequent hospital care, she was greatly improved and exhibited none of the symptoms for which she was given treatment. Her mood was considerably improved and the psychiatric impairment was minimal. Plaintiff was also examined on July 25, 1968, and no evidence of any psychiatric disorder was discovered.

During her hospitalization, the psychiatrists discerned that plaintiff was a person who tended to keep resentment to herself, not being open and expressive about it, with a tendency to handle stressful relationships, inner distresses and nervousness by pleasantness and carefree amiability.

There is no dispute that plaintiff suffered a mental illness that required her hospitalization on more than one occasion. Plaintiff’s condition was diagnosed as “depressive reaction.” Defendant contends that there is a total lack of evidence that his conduct caused plaintiff’s mental health to be endangered, but that plaintiff was a victim of her own frail personality and emotional instability. Defendant further contends that none of his conduct, that plaintiff complains about, if true, would be sufficient to meet the legal requirement for mental cruelty.

In Hayes v. Hayes, 117 Ill. App2d 211, 254 NE2d 288, at page 215, the court expressed the following language we find appropriate to the case at bar:

“It is within the province of the trial court to make the determination whether there has been sufficient evidence with which to establish either party’s contentions. In the instant case the trial court heard the evidence, viewed the witnesses and was in a better position to conclude the issues. This court will not set aside the findings and judgment of the trial court unless the decision reached by such trial court is against the manifest weight of the evidence. Hoffman v. Hoffman, 40 Ill2d 344, 239 NE2d 792 (1968); Curran v. Curran, 19 Ill2d 164, 166 NE2d 13 (1960), and the trial court’s findings are presumed to be correct. Gillespie v. Gillespie, 70 Ill App2d 38, 216 NE2d 462.
“ ‘Whether certain acts will constitute physical or mental cruelty still depends upon the total factual background surrounding the conduct under question. This includes the particular emotional and personal makeup of the parties and the varying circumstances under which any of the incidents occurred that may have given rise to the acts.’ Stanard v. Stanard, 108 Ill App2d 240, 247 NE2d 438 (1969). In this case the emotional makeup of the plaintiff must be considered in determining the effect of the conduct of defendant in providing grounds for the mental cruelty allegation. Plaintiff’s testimony, taken with the psychiatrist’s reports, furnish an adequate basis for the court’s findings.”

We find that the evidence in the case at bar is sufficient to establish that defendant has been guilty of extreme and repeated mental cruelty. (Ill Rev Stats, c 40, § 1 (1967).)

Defendant contends that the continued cohabitation and sexual relations of the parties constituted con-donation of defendant’s alleged misconduct. Condonation is a question of intent to be shown by words and deeds that reflect full, free and voluntary forgiveness and continued cohabitation will not necessarily amount to con-donation. Collinet v. Collinet, 31 Ill App2d 72, 78, 175 NE2d 659. Plaintiff in the case at bar testified that she engaged in sexual relations, relied upon by defendant as condonation, against her wishes and that she was afraid of him.

In Rasgaitis v. Rasgaitis, 347 Ill App 477, 107 NE2d 273, at page 482, the court said: “The law will not presume that a wronged wife condones the actions of her guilty husband simply because the difficulty of finding another place to live, the welfare of her child, and other factors beyond her control, force her to remain temporarily in the same house with him.” Condonation is an affirmative defense which defendant pleaded but failed to prove by a preponderance of the evidence.

In view of the foregoing, defendant’s contention that plaintiff’s departure and her living separate and apart were unjustified and entitled defendant to a decree of divorce on grounds of desertion, is of no merit.

The Chancellor elicited an opinion from one of plaintiff’s psychiatrists that plaintiff was capable of caring for her minor child. The Chancellor also asked questions of the same witness which revealed that the witness was not surprised to learn that plaintiff filed a separate maintenance action while she was hospitalized. Defendant complains and contends that the answers were both bottomed on conversations the witness had with plaintiff, were hearsay, and should not have been admitted into evidence. We find no error in the admission of an expression of the medical opinion and as to the other point, we observe that it was on defendant’s own motion that voluminous medical records of both the Edge-water Hospital and the University of Chicago Hospitals and Clinics were received into evidence. These exhibits reflected countless recitations of conversations plaintiff had with the witness and other medical personnel regarding her illness, treatment, prognosis, symptoms and her marital disharmony and discontent. We also note that defendant’s cross-examination prior to the Chancellor’s questions delved into conversations this psychiatrist had with plaintiff regarding her marital difficulties.

There is no evidence in the record that would justify this court in finding that the Chancellor abused his discretion in awarding custody of the minor child to plaintiff. The psychiatric testimony established that plaintiff was not emotionally unstable but had, in fact, recovered from her illness and was clearly able to function and assume responsibility for the care of her minor child. The paramount consideration in determining custody is the welfare and best interest of the child. Nye v. Nye, 411 Ill 408, 105 NE2d 300. We cannot set aside this award unless it was entered against the manifest weight of the evidence. We find that under the facts and circumstances of this case, the Chancellor did not abuse his discretion and authority in awarding custody of the child to plaintiff.

Defendant contends that plaintiff’s complaint lacks an essential element in failing to allege a lack of provocation and thus does not state a cause of action and that therefore, the complaint may be successfully attacked on appeal as not justifying the decree. Stanard v. Stanard, 108 Ill App2d 240, 247 NE2d 438.

In Booker v. United Savings & Loan Ass’n, 48 Ill App2d 246, 248, 198 NE2d 545, this court on motion of plaintiff allowed an amendment of the pleadings on appeal to conform to the proofs. The complaint charged general negligence, but failed to allege that plaintiff’s intestate was in exercise of due care for her own safety. This court in that case observed that plaintiff’s evidence showed habits of due care of the deceased and that plaintiff’s counsel argued due care and both parties tendered instructions on due care which were submitted to the jury.

In the case at bar, plaintiff’s evidence more than adequately depicted that defendant’s misconduct was not caused or provoked by plaintiff and defendant averred and adduced evidence and conducted his cross-examination on the theory that the acts and misconduct of purported extreme and repeated mental cruelty charged by plaintiff never occurred — a theory which, by its nature, is inconsistent with a defense of provocation.

Although defendant did interpose a motion to dismiss the complaint in the trial court, which was overruled, it was never specifically pointed out that the complaint lacked the requisite allegation reciting lack of cause or provocation on the part of plaintiff. We are certain, that under the circumstances and facts of this case, had this defect in the complaint been brought to the attention of the trial court an appropriate amendment would have been allowed since it could not possibly have prejudiced defendant in view of the character of his defense in the trial court. However, in this court plaintiff has not requested such relief. Therefore, we hereby order the complaint amended to conform to the proofs on our own motion pursuant to Supreme Court Rules 362(f) and 366(a) (1), Ill Rev Stats 1967, c 110A, §§ 362(f) and 366 (a) (1). The complaint shall be amended to allege, “that the conduct complained of by plaintiff was without cause or provocation on her part.”

The judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois Appellee, v. Richard Ford, Appellant.
    Gen. No. 54,306.
    First District, Fourth Division.
    August 5, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE LEIGHTON.

Not to be published in full.


text:
    Robinwoods West, Inc., a Corporation, Plaintiff-Appellant, v. Arnold I. Kramer, Defendant-Appellee.
    Gen. No. 54,360.
    First District, Fourth Division.
    August 5, 1970.

      Teller, Levit & Silvertrust, of Chicago (Richard J. Ladon, of counsel), for appellant.
    Arnold I. Kramer, pro se, of Chicago, appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff appeals from an order quashing service of summons and vacating a prior judgment against defendant. An appeal is also taken from an order denying plaintiff’s motion for a rehearing of the motion to quash.

On March 29,1968, plaintiff instituted an action at law against defendant to recover damages for conversion of funds and breach of contract. A summons was issued and directed to the law office of defendant. A deputy sheriff of Cook County made a return reflecting that service of summons was personally made on defendant.

On June 27, 1968, plaintiff secured a default judgment against defendant upon his failure to respond to the summons. The judgment was in the amount of $10,125, malice was found to be the gist of the action and the order further provided that an execution and a capias ad satisfaciendum be issued.

On January 31, 1969, defendant was taken into custody on the capias and released the same day upon the posting of the requisite bond. On February 24, 1969, defendant appeared specially and moved to quash the service of summons. At this time the original summons was lost and defendant was unable to determine the date he allegedly had been personally served, so defendant executed and filed an affidavit which recited that neither he nor any member of his family had been served with a summons in the instant litigation. The matter was set for a hearing on March 19, 1969, on which date it was continued to April 8, 1969, and then to April 15, 1969, when the hearing took place.

On April 15, 1969, defendant appeared pro se and filed an additional affidavit wherein it was recited that plaintiff’s counsel had furnished him with a copy of a “restored” summons on March 24, 1969, indicating service was personally made on defendant on April 1, 1968. This affidavit further stated that the “purported service was false and a physical impossibility inasmuch as he was in the State of California from the period of March 30th, thru April 2, 1968.” Defendant initiated the hearing by making a statement and alluding to his two affidavits and offered into evidence, in support of the two affidavits, a paid motel bill (Exhibit “A”). This exhibit was offered into evidence without any objection by plaintiff. Although there appears to be no specific ruling on the admission of Exhibit “A”, both parties and the trial judge regarded it as having been admitted. Plaintiff did argue its sufficiency but not its admissibility. The exhibit re-fleeted that the Ramada Inn, at Brawley, California, rented Room 104 to an Arnold Kramer of 19 S. LaSalle St., Chicago, Illinois, on March 30, 31 and April 1, 1968, and that $28.09 was paid on April 2,1968.

Plaintiff’s counsel then said that he presumed the foregoing was all the evidence defendant desired to present and if so, it was insufficient to overcome the return of the deputy sheriff, because it was uncorroborated and was not clear and convincing.

At this juncture, defendant was given leave to address the court and proceeded to argue his evidence and its sufficiency. The proceedings were very informal. Plaintiff’s counsel then argued that Exhibit “A” was not corroborative of the affidavits and further that the paid bill had not been authenticated and “was totally improper.” A colloquy ensued between the court and both counsel regarding the sufficiency of defendant’s evidence. The court then ruled that the summons be quashed.

Plaintiff relies upon the following two contentions in urging this court to reverse the trial court’s judgment:

(1) the evidence was insufficient to impeach the return of the sheriff and

(2) plaintiff was deprived of an opportunity to respond to defendant’s evidence.

In support of his first contention plaintiff cites Marnik v. Cusack, 317 Ill 362, 364, 148 NE 42 wherein the court said:

“The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence.”

Plaintiff also cites Pyle v. Groth, 15 Ill App2d 361 (1957) wherein it was held that a sheriff’s return on a summons is prima facie proof of service and can be overcome only by clear and convincing proof.

Defendant’s affidavits, corroborated by the exhibit from the Ramada Motel in California, contradicted the prima facie proof of service. We hold that defendant’s evidence therefore satisfied the requirements enunciated in Marnik and Pyle, supra. We believe that a finding against defendant would be contrary to the manifest weight of the evidence and the trial court properly found that the evidence clearly and satisfactorily established that the deputy sheriff’s return was not correct.

In regard to plaintiff’s second contention, the record is devoid of any request or effort on the part of plaintiff to present any evidence other than the return of the deputy sheriff. We find the second contention to be without merit.

On May 6, 1969, plaintiff filed a motion to vacate the order quashing the service of summons and vacating the default judgment. This motion also requested that defendant be ordered to produce Exhibit “A” for copying and inspection.

The motion was heard on May 27, 1969, and plaintiff alleged that an objection was made to the introduction of Exhibit “A” into evidence; that there was no evidence to establish the authenticity of the Exhibit “A”; that defendant failed to testify that he in fact was at the motel on the dates stated in Exhibit “A” and that no ruling was ever made by the court as to the admissibility of Exhibit “A.” The remainder of the motion was devoted to an argument as to the sufficiency of evidence to overcome the presumption of service by clear and convincing proof and that defendant was not corroborated in his evidence as to lack of service. There was no allegation in this motion that plaintiff had been precluded from presenting any additional evidence at the hearing.

Plaintiff argued the merits of the motion, defendant responded and the court properly denied the motion. There was nothing in the motion or argument that had not been substantially presented or argued to the court during the previous hearing, except the request for the production of Exhibit “A” for inspection and copying prior to the hearing for the motion for a rehearing. No suggestion or reason was advanced for this latter request, although plaintiff’s counsel did remark that he had people checking on the exhibit, and at the proper time he would introduce such testimony. This remark by plaintiff’s counsel strongly suggested that there was evidence that attacked the competency and credibility of the exhibit. None was produced.

Therefore, we affirm the judgment.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.

       The Rembert Mortgage Corporation was also a defendant and service was allegedly made by serving defendant Kramer. The disposition of the Mortgage Corporation’s interest in this litigation is of no concern to the resolution of this appeal.


author: CHAMBERLAIN, J.

text:
    Bessie Stewart, Plaintiff-Appellee, v. Hancy Nelson and James Sparks, Defendants-Appellants.
    Gen. No. 68-124.
    Fifth District.
    August 6, 1970.

      Reed, Armstrong, Gorman and Coffey, of Edwards-ville, and Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellants.
    William W. Schooley, of Granite City, for appellee.
   CHAMBERLAIN, J.

The plaintiff, Bessie Stewart, brought an action for personal injuries against two motorists, Haney Nelson and James Sparks. A jury returned a verdict against both defendants in the amount of $7,500. The defendants appeal from the jury’s verdict.

Bessie Stewart was a passenger in a vehicle driven by Haney Nelson which collided with a vehicle operated by James Sparks; the collision occurred at the intersection of Third and State Streets in Madison, Illinois, at approximately 3:30 p. m., in January 1966. The weather was cloudy and rainy; the traffic was moderately heavy. The Nelson car was proceeding west on Third Street which led to a T intersection with State Street.

A stop sign was at the intersection for traffic on Third Street. The Sparks car was traveling on State Street, a through street, in a northerly direction.

Mrs. Nelson stopped at the stop sign and waited for the traffic to clear. As she waited, her car moved up closer to the intersection and she pulled out partially into State Street. As she turned south, the car collided with the vehicle operated by Sparks.

A passenger in Mrs. Nelson’s vehicle testified that the Jeep driven by Mr. Sparks was traveling 40-45 miles per hour. The posted speed limit was 35 miles per hour. Mrs. Nelson testified that she did not see the Sparks car until after the collision. Mr. Sparks testified that he was traveling at the rate of 25-30 miles per hour and that he first saw the Nelson car when it “lunged out” in front of him. He further stated that because of this he could not stop his vehicle prior to impact.

Each defendant appeals on the grounds that as a matter of law there was no liability and that the jury’s verdict is against the manifest weight of the evidence.

Each further claims that a new trial should be granted on the grounds plaintiff’s counsel made improper and prejudicial final argument. The defendant, Sparks, also claims reversible error was made by the admission of a discovery deposition over his objection.

We believe the evidence presented by the plaintiff made a prima facie case against each defendant, and created questions of fact for the jury to resolve.

The plaintiff’s case against Haney Nelson was similar to that of the plaintiff in the case of Augustine v. Stotts, 40 Ill App2d 428, 189 NE2d 757. In that case, the plaintiff was a passenger in a car operated by the defendant, who had stopped at a traffic sign. After the defendant made her stop she proceeded into the highway and was struck by another vehicle. The jury found the driver guilty of wilful and wanton misconduct. The Court stated:

“The facts were such as to raise a question of fact for the jury as to whether defendant was guilty of wilful and wanton misconduct either in seeing the oncoming automobile and wilfully, wantonly or recklessly attempting to race across the highway ahead of such automobile, or being guilty of wilful and wanton misconduct in failing to look and discover the oncoming automobile on the state highway. The jury found, as a fact, that the defendant as host driver was guilty of wilful and wanton misconduct. Since the jury has come to such conclusion, and (on the basis of the record before us which made the determination of whether or not defendant was guilty for the jury) this Court cannot substitute its judgment for such conclusion on appeal in this Court (citing cases).” (40 Ill App2d 430-431, 189 NE2d 758-9.)

In the case of Ritter v. Nieman, 329 Ill App 163, 67 NE2d 417, the appellate court reversed a trial court which had directed a verdict for the defendant at the close of plaintiff’s case. The facts were similar to this case and to the Augustine case, and the appellate court stated at page 173:

“We are also of the opinion that the Court erred in not submitting to the jury the issue raised in the second count of the complaint, namely whether or not the defendant was guilty of wanton and wilful misconduct. If the witnesses for the plaintiff are to be believed, it can be fairly inferred that the defendant drove through a stop sign without stopping and looking, and into an intersection where he struck an automobile that he didn’t even see before he struck it. The defendant had crossed this intersection for many years and knew of the existence of the stop sign, and that this was a place of danger. Whether or not such conduct indicated a reckless disregard for the safety of others was a question of fact properly to be submitted to a jury (cases cited).”

In the present case the jury found in answer to a special interrogatory that defendant Nelson was guilty of wanton and wilful misconduct; that finding is not against the manifest weight of the evidence.

There is also ample evidence to support the jury’s finding of negligence against Mr. Sparks. There is testimony by a witness that he exceeded the posted speed limit when the weather was cloudy and rainy and the traffic fairly heavy. He was only 10 feet from the Nelson car before he applied his brakes. Whether this defendant was guilty of negligence under this set of facts was for the jury to decide.

Both defendants also contend reversible error was made by plaintiff’s counsel in final argument. The alleged errors result from statements by plaintiff’s counsel.

The first statement was:

“And I say to you, that she should be judged as you would want to be judged.”

No objection was made by opposing counsel. Defendants contend that this statement asked the jury to place themselves in the position of the plaintiff which has been held to be error. Thomas v. Illinois Power & Light Corp., 247 Ill App 378.

Both defendants cite as authority for reversal the case of Copeland v. Johnson, 63 Ill App2d 361, 211 NE 2d 387. However, in that case the Court stated at page 367:

“Had an objection been made, the Court should have sustained the objection and instructed the jury to disregard the erroneous comments. However, no objection was made and we feel that the error was waived.”

If the comment by plaintiff’s counsel is deemed error, the error, if any, has been waived by the failure to object.

The second statement dealt with the duration of plaintiff’s injury. Again, no objection to the argument was made until after the jury retired. We consider the error waived since no objection was made.

The final alleged error in argument was as follows:

“Mr. Gorman used a phrase that I think is very apt, but he used it in applying it to himself. He is in the middle. Ladies and gentlemen of the jury, if there’s anybody caught in the middle of things, it’s my client, Bessie Stewart. She is in the middle of this thing. They both agree, everybody on the side of the table, agree that it wasn’t Mrs. Stewart’s fault. They say, ‘Nope, it’s not her fault, it’s his fault or her fault.’ And here we are sitting in the middle. That’s why we are in the courtroom and that’s why I’m in a lawsuit because those people over there can’t agree who should pay Mrs. Stewart for her injuries, and that’s exactly why we are here.”

Prompt objections were made which were immediately-sustained by the Court. Moreover, the jury was instructed to disregard the argument.

We believe that no prejudicial error was committed in plaintiff’s closing arguments, considering the arguments of opposing counsel and the circumstances under which the complained of remarks were made, and that the court properly ruled when objections were interposed.

The final alleged error was raised only by defendant, James Sparks. During the course of the trial, counsel for defendant Haney Nelson sought to introduce the discovery deposition of Dr. John Riley. Plaintiff had no objection. Defendant Sparks objected and after a hearing out the presence of the jury, the Court permitted the reading of the deposition after giving the following admonition to the jury:

“Now ladies and gentlemen of the jury, counsel for the plaintiff and counsel for the defendant have agreed to the reading of the deposition of Dr. John Riley. Now this deposition will only be with reference to the defendant Haney Nelson. It cannot be considered in any way as to the defendant James Sparks. The reason being, that these parties have stipulated there’s two separate cases here. One against Haney Nelson, on the theory that Mrs. Stewart was a passenger in her car, and they are required to prove wilful and wanton misconduct on the part of Haney Nelson. The other part is based upon negligence against Mr. Sparks. This deposition will only be considered in the case of Haney Nelson.”

Dr. Riley did not testify at the trial and no other medical testimony was presented.

Defendant Sparks contends this use of the discovery-deposition constituted reversible error.

At the time the court advised the jury of the limiting use of this evidence, there was no motion made for a severance. Further, at the instruction conference, no objection was made as to the forms of verdict to be submitted to the jury. The law is very clear that evidence may be admitted and limited to one party when the jury is advised that the evidence is not to be considered as to other parties. Horan v. Brenner, 57 Ill App2d 83, 206 NE2d 488 (1965); Clark v. A. Bazzoni & Co., 7 Ill App2d 334 at 339, 129 NE2d 435 (1955).

The admonition given by the court was clear and precise. In fact, no issue is raised concerning the sufficiency of the admonition or to the instructions given. Inasmuch as the defendant, Sparks, did not ask for a severance or object to the form of verdict, we find no error was made in following this procedure.

If the defendant Sparks had asked for a severance, the trial court would be required to exercise his discretion to determine whether or not a party would be prejudiced by requiring the trial to continue. Clark v. A. Bazzoni & Co., supra.

Therefore, we find no prejudicial error in the trial and accordingly, the judgment is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: JUSTICE ABRAHAMSON.

text:
    Repco Enterprises, Inc., Plaintiff-Appellee, v. United Auto Workers Local 184, Joseph A. Skwatt, Business Agent of United Auto Workers Local 184 and Caroline Wilkins, President of United Auto Workers Local 184, Defendants-Appellants.
    Gen. No. 70-37.
    Second District.
    August 6, 1970.
    Katz & Friedman, Irving M. Friedman, Jerome Schur, Howard A. Katz, and Zenia S. Goodman, of Chicago, for appellants; Joslyn and Green, and Thomas C. Zanck, of Woodstock, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William J. West, Defendant-Appellant.
    Gen. No. 54,249.
    First District, Third Division.
    August 6, 1970.

      Oliver J. Brown, Jr. and Chester L. Blair, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant William J. West was indicted for the crime of abortion. After pleading not guilty and waiving a jury, he was found guilty of that charge in a bench trial. Thereupon defendant moved for an acquittal or for a new trial charging that he had been convicted on an indictment which was unintelligible and void. After a hearing, the trial court found that the copy of the indictment which had been furnished to defendant and certified in the record contained a typographical error, but that the error did not mislead defendant as to the nature of the charge. The trial court also found that the original indictment which was returned by the Grand Jury and filed in the clerk of the court’s office did not contain the typographical error in question. The trial judge denied defendant’s motions and placed defendant on probation for 5 years. On appeal, defendant contends that because of an unintelligible indictment, the court did not acquire jurisdiction of the subject matter, and that defendant was not adequately informed of the charges against him. Defendant also maintains that, even assuming the absence of the typographical error, the original indictment upon which the trial court relied was insufficient to charge a crime.

At the post-trial motion for acquittal or for a new trial, it was brought out that when an indictment is returned by the Grand Jury, it is signed and taken to the clerk of the court’s office where copies are typed. The original indictment is then placed in a vault at that office. In the instant case, the original indictment charged defendant as follows:

“. . . that on February 12th, 1966 at and within said County William J. West committed the offense of abortion, in that he, used instruments and medicine, with the intent to procure the miscarriage of Nancy Auburn.”

The Clerk of the Circuit Court certified that this was a true, perfect and complete copy of the indictment. However, the copy of the indictment furnished to defendant and which was certified in the record charged defendant with abortion “in that he, was instruments and medicine, with the intent to procure the miscarriage of Nancy Auburn.” As we have noted, the trial court found that the use of the word “was” constituted a typographical error, and was not misleading to defendant as to the nature of the charges against him. Defendant first argues that this ruling by the trial court was erroneous, maintaining that the court never acquired jurisdiction of the cause because the indictment was void and unintelligible.

The Code of Criminal Law and Procedure, Ill Rev Stats 1967, c 38, § 111-3(a), provides:

“A charge shall be in writing and allege the commission of an offense by:
“(1) Stating the name of the offense;
“(2) Citing the statutory provision alleged to have been violated;
“(3) Setting forth the nature and elements of the offense charged;
“(4) Stating the date and county of the offense as definitely can be done; and
“(5) Stating the name of the accused, if known, 99

A void indictment may be attacked at any time. People v. Wilfong, 19 Ill2d 406, 168 NE2d 726 (1960). On the other hand, objections to an indictment which go merely to form and not to the real merits of the offense charged are waived if not raised on a motion to quash. People v. Day, 404 Ill 268, 88 NE2d 727 (1949), Ill Rev Stats 1967, c 38, § 111-5.

In The People v. Patrick, 38 Ill2d 255, 230 NE2d 843 (1967) , the indictment charged that the crime was committed between April 1, 1963, and April 21, 1965. The court held that the elements of time and place in an indictment were subsidiary matters which were separate and distinct from the substantive matters of stating the nature and elements of the offense charged. In The People v. Campbell, 40 Ill2d 463, 240 NE2d 635 (1968) , an indictment named defendant and another party as committing the offense jointly, but in describing the offense stated that “he” instead of “they” committed the offense. The court held that while the indictment was grammatically incorrect, it was only a defect as to form which could have been corrected at any time on motion. The court further held that the fact that defendant understood the nature of the charge against him was demonstrated by the proceedings at the time of his plea of guilty.

Similarly in the instant case, we find that use of the word “was” in the indictment rather than the word “used” amounted to a defect only in form and did not render the charge fatally deficient. Defendant did not question the sufficiency of the indictment prior to trial, nor did he ever request that he be furnished a bill of particulars. Moreover an examination of the record clearly reveals that both defendant and his comisel were well aware of the charge against defendant. We conclude that the trial court was correct in finding that the defect was a typographical error, and that the error did not violate defendant’s constitutional right to be apprised of the nature of the charge against him. In so holding, we reject the State’s argument that defendant had a duty to search the public records for the proper indictment. If an indictment in the record is void, it will not be cured by a properly worded indictment on file in the clerk’s office. Cf. People v. Ball, 126 Ill App2d 9,261 NE2d 417 (1970).

Defendant next contends that, even assuming the absence of a typographical error, the indictment upon which the trial court relied was insufficient to charge a crime. Defendant concedes that the indictment was framed in the language of the statute, but argues that the failure to allege in the indictment that he used the instruments on Nancy Auburn rendered the indictment void.

An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he is charged. People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965). And an indictment which fairly charges the crime, enables the defendant to prepare his defense, and protects him from subsequent prosecution for the same offense, is sufficient. The People v. Wilson, 24 Ill2d 598, 182 NE2d 683 (1962).

We believe that the indictment in the instant cause sufficiently fulfilled the specifications set out above. Defendant was charged with the crime of abortion, was made aware of when and upon whom he allegedly performed the abortion, and clearly could not be tried for the same offense again. A fair reading of the indictment indicates that defendant used certain instruments to procure an abortion. The only reasonable inference possible is that these instruments were used upon the victim, and that they were capable of causing a miscarriage. We are not persuaded by defendant’s contention that under the language of the indictment in question, a witch doctor brewing medicines in a bowl could be charged with causing the abortion of a woman located in another country. It is sufficient that an indictment advise defendant with reasonable certainty of the precise offense charged, including its essential elements, and that it adequately notify defendant of the nature and cause of the accusation against him. This the instant indictment did.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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