author: MR. JUSTICE ADESKO

text:
    Bernice Christianson, Plaintiff-Appellee, v. City of Chicago Heights, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,513.
    First District, First Division.
    December 16, 1968.

      Scariano and Gubbins, of Chicago, for appellant.
    Philip E. Eyan and Gerald J. Shine, of Chicago (Mary M. Shaw, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This was a suit for personal injuries filed by the plaintiff, Mrs. Bernice Christianson, against defendant, the City of Chicago Heights, a municipal corporation, to recover damages for the injuries occasioned by the alleged negligence of the defendant in maintaining a public sidewalk within its corporate boundaries. A verdict in favor of Mrs. Christianson and an assessment of damages of $22,500 were rendered by the jury, whereupon the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.

On August 3, 1962, Mrs. Bernice Christianson, 59 years old, was sent by her employer to purchase certain office supplies from Cook’s office supply store located in Chicago Heights, Illinois. Following her purchase, as she was returning to her automobile, the right heel of her shoe slid off a depression in the public sidewalk, in front of the store, and she fell to the ground. As she went down she heard a cracking sound, and immediately after her downward motion ceased, she found herself sitting on her left leg, her left knee bleeding, and felt sharp pain in her right ankle. The sidewalk upon which Mrs. Christianson fell contained a rise and depression between the slabs of concrete of approximately two to two and a half inches. She was taken to St. James Hospital in Chicago Heights, by two employees of Cook’s, where her left knee, which was still bleeding slightly, was washed and bandaged. The treating physician recorded no further treatment of the left knee while she was in the hospital. The physician examined the right ankle and ordered it packed in ice. The next morning the ankle was X-rayed, and the following day a cast applied. The X ray of the right ankle revealed a fracture of the medial malleolus, with no sprains or displacement of fractured fragments. Mrs. Christianson spent two days at the hospital and the following three months at home in a wheelchair. On September 25, 1962, approximately seven weeks after the fall, the cast was removed and X rays were taken of the ankle. These X rays revealed the fracture was hardly visible, yet she was still dependent upon the wheelchair until the first week of November when she attempted to walk.

With respect to Mrs. Christianson’s left knee, on December 15, 1962, she complained to her physician of pain which she had felt for approximately six weeks, yet an X ray taken at this time was recorded as showing a satisfactory condition of the knee with no unusual symptoms and no fracture or dislocation. As a child, Mrs. Christianson was afflicted with polio, causing a four-inch shortening of her left leg, a left pelvic tilt and curvature of the spine, and, as she testified concerning this condition, “I have always had it. It has always been with me that I remember.” In November, 1968, another doctor examined the left knee and he testified at the trial that there was a permanent displacement of the left patella (left kneecap) due to a ruptured quadriceps tendon, so that the kneecap was not pulled or held up in its normal position. Plaintiff testified this condition “has never gotten any worse or any better; it is with me.” Mrs. Christianson did not visit her physician again because of the left knee until April 16, 1965, when she sustained a fall while obtaining the mail from her front yard mailbox. As she was walking to the mailbox, her left leg “just gave out,” and she fell upon the pavement. The doctor came to her home and recommended an X ray be taken immediately. An X ray showed no fracture, but the left knee was swelled up considerably and there were abrasions and a blood clot on the surface of the knee.

At the trial, the plaintiff introduced evidence as to the circumstances of the fall, the condition of the sidewalk, and the damages sustained by her; she also introduced evidence pertaining to the second fall in April of 1965. Mrs. Christianson testified that after removal of the cast, she has required a cane to assist her in walking, and that since the injury she has not been able to get around as she once was able. At the time of the trial, February, 1967, she was still using a cane.

Mr. Christianson testified that following the fall of August 3, 1962, plaintiff, his wife, was no longer able to perform the duties and functions of a housewife in maintaining their home. The defendant’s only witness was a doctor who had not examined the plaintiff’s injuries but who answered hypothetical questions as to her condition. The jury was instructed that the plaintiff had the burden of proving due care on her part, negligence on the part of the defendant, that the plaintiff was injured, and that the defendant’s negligence was the proximate cause of the injury. Thus instructed, the jury returned a verdict for the plaintiff and assessed damages in the amount of $22,500. Defendant’s post-trial motion for arrest of judgment, judgment notwithstanding the verdict, or, in the alternative, for a new trial was denied.

On appeal the defendant, Chicago Heights, maintains that (1) the trial court ruled incorrectly on certain objections to the evidence; (2) certain remarks of the trial court were prejudicial to defendant; (3) the jury was improperly instructed; and (4) the damages awarded were excessive. However, in this court defendant does not press the issues as to its negligence or the plaintiff’s contributory negligence as raised in its post-trial motion.

It is defendant’s contention that evidence with respect to a subsequent fall by Mrs. Christianson at her home two and a half years after the fall in question was irrelevant, immaterial and erroneously admitted into evidence over defendant’s objection. Defendant stresses there was no connection shown between the two falls and nothing was shown to prove the proposition that the subsequent fall was caused by an alleged injury to the left knee sustained in the first fall. When the first mention of the second fall arose, the trial judge held a conference in chambers with both counsel wherein plaintiff’s counsel indicated he would present medical testimony of the doctor who examined Mrs. Christianson between the time of the first fall and the second fall and who would testify as to a condition in the left knee that showed a weakness due to the injury sustained in the first fall. Since the jury heard mention of a second fall, the court proposed to both counsel that the court would instruct the jury to disregard the testimony concerning the second fall of April, 1965, at this point, and as other witnesses appeared, such second fall may or may not be established and connected to the first fall. The proceedings resumed and the court so instructed the jury.

Medical testimony of Dr. Bonick, relating to the subsequent fall, was that he examined plaintiff’s left knee after the fall and it was his opinion that there was a strain or sprain of the ligaments around the left knee. Previously Dr. Petty had testified that his examination of Mrs. Christianson’s left knee in November, 1963, revealed a permanent displacement of the left quadriceps tendon. He also testified this condition produces a laxness in the knees and an instability of the knee so that a person so affected would be more susceptible to falling or turning his knee. Finally, Mrs. Christianson testified to the fall she sustained on April 16,1965.

Whether the cause of the second fall was a result of the injury sustained in the fall upon the defendant’s public sidewalk was a question of fact for the jury to resolve according to the evidence presented. There is evidence in the record to indicate the plaintiff fell, due to a sudden giving out of her left knee, which could be inferred as occurring as a residual effect of the injury sustained in the fall of August 3, 1962. The jury was at liberty to draw an inference from that evidence that the injury to the left knee sustained in the first fall was the cause of Mrs. Christianson’s second fall on April 16, 1965, or the jury could totally disregard such evidence in assessing defendant’s liability and the resulting damages. Such evidence adduced by plaintiff, being relevant and material to the existing condition of plaintiff’s left knee and defendant’s liability, was, therefore, properly admitted, and the jury’s judgment as to its connection with the initial fall was final.

Defendant complains of the trial court’s overruling of his objection to the hypothetical questions asked a physician by plaintiff’s counsel, based upon the court’s assistance to plaintiff’s counsel in formulating such question. The familiar rule concerning hypothetical questions is that where an expert witness is asked a hypothetical question and the facts are not disputed, the question must contain all the material facts or the opinion is likely to mislead the jury. Such question also must not ignore material facts which affect the opinion given. Wolczek v. Public Service Co. of Northern Illinois, 342 Ill 482, 174 NE 577 (1931); Peterson v. Cochran & McCluer Co., 308 Ill App 348, 31 NE2d 825 (1941).

It is our view that the trial court did not assist plaintiff’s counsel in amending his hypothetical question by supplying any missing material facts. Although the court admitted the hypothetical question posed by plaintiff’s counsel was “not as thorough as it should be,” the court’s mention of the absence of the date of the accident, that the doctor examined the hypothetical person over a year later, and the court’s permission to counsel to incorporate into the hypothetical question such facts, did not mislead the jury or prejudice the defendant’s cause. The jurors were quite well aware of the date of the first fall, and were cognizant that the physical examination of the plaintiff by this doctor was in November 1963. While the original hypothetical question varied slightly from the actual facts, but not materially, in its amended form such question was proper and contained, we believe, the material facts upon which the answer was based.

The defendant argues that certain remarks of the trial court were improper and prejudicial to his cause. The trial court, in its opening statement to the jury, commented that the sidewalk upon which Mrs. Christianson fell was repaired the day after the fall. While evidence of repairs made to an instrumentality after an injury has occurred is inadmissible to show negligence of the party in control of such instrumentality when the injury occurred, Devine v. Johnson & Jennings Co., 189 Ill App 556 (1915); Day v. Barber-Coleman Co., 10 Ill App2d 494, 135 NE2d 231 (1956), in the instant case, we note that such comment by the trial judge was not intended to be introduced as evidence, and when brought to his attention at a conference in chambers by counsel, the trial judge made the following statement to the jury:

“. . . I do want to make this statement. After a conference in chambers, it developed that in my opening statement about the facts of this case, I remembered saying that the sidewalk in question was repaired the next day. You are to absolutely disregard that, even as you would disregard any statements by attorneys, which is not evidence. There will be no evidence allowed in the case whether or not the sidewalk was repaired after. So, please disregard it entirely. Thank you.”
Mr. Pappas: “Your Honor, as you are aware, of course, I made an objection.”
The Court: “I overruled the objection, yes. The motion was to withdraw a juror and start the trial over, and I don’t think it’s necessary at all.”

It is our considered opinion that the trial court’s admonition to the jury was an adequate precaution to remove any prejudicial impressions in the minds

of the jury so that the jury would not be misled or influenced into considering such repairs as evidence against the defendant, and that the effect of the remarks by the trial court to the jury were cured by his instructions to disregard them. Sherman v. City of Springfield, 77 Ill App2d 195, 222 NE2d 62 (1967). Nor do we believe the jury was prejudiced against defendant by the remarks of the trial court in the presence of the jury concerning defendant’s motion for withdrawal of a juror and the declaration of a mistrial, or by the later mention by the trial court of the nonapplicability of a case in point in the presence of the jury when overruling an objection by defendant to the admission of certain evidence. We do not consider these minor matters as substantial errors which would require a new trial.

Defendant next asserts that there was error in instructing the jury. Initially there is the objection that the jury was given copies of the instructions which indicated who tendered such instructions rather than the originals of such instructions which do not recite who tendered them. The original instructions, which unlike the copies do not show the identity of the party tendering them, are to be taken by the jury into the jury room, pursuant to sections 67(1) and 67(2) of the Civil Practice Act, Ill Rev Stats 1967, c 110, §§ 67(1), 67(2), which provide in part:

“§ 67 (1) . . . An original and one copy of each instruction asked by any party shall be tendered to the court. The copies shall be numbered and shall indicate who tendered them. . . .
“(2) The original written instruction given by the court to the jury shall be taken by the jury to the jury room, and shall be returned by them with their verdict into court. . . .”

In addition, defendant maintains that the designation on the copies received by the jury of the party tendering the instructions misled and confused the jury, thereby prohibiting a fair and impartial verdict, and the court erred in allowing the jury to receive these copies instead of the original instructions as required by the statute. The plaintiff asserts that the record does not show by whom the instructions were tendered, and strenuously argues that an essential prerequisite to the raising of an issue cn the instructions given to the jury, is that the record shows by whom the instructions were actually tendered, and therefore any claim of error cannot be considered. The record reveals the following concerning the matter:

Mr. Pappas: “Judge, I am going to make a motion at this time. I have here a copy of the instructions, and for some reason or other, the jury got a copy of marked instructions. I, therefore, request a mistrial in this case.”
The Court: “Got any law on the subject? I don’t know why they got them. I didn’t hand it to them.”
Mr. Pappas: “I couldn’t have handed it to them, Judge.”
The Court: “I handed them the ones”—
Mr. Pappas: “You got a set of unmarked instructions right there. Judge.”
The Court: “I know it.”
Mr. Pappas: “That was in the set that was in the file that went in the jury room. I can get you some law, Judge. If you want to reserve some ruling, that’s up to you.”
Mr. Ryan: “Counsel has no evidence at all that these instructions were the specific instructions. As the Court just said, he handed the instructions.”
The Court: “How those got in there, I have no way of knowing.”
Mr. Pappas: “Those instructions were in your book,
Your Honor. These instructions were in the file. You want to poll the jury on that?”
Mr. Ryan: “The jury was properly instructed.”
The Court: “All I want to know, do any of you have any cases on marked instructions ?”
Mr. Pappas: “Not right off hand, but I can get you some. Do you want to reserve your ruling ?”
The Court: “Certainly I do. I want to look up the law on it.”
Mr. Pappas: “We can poll the jury, instead of holding up the jury. You want to reserve the ruling on that ?”
The Court: “Yes. Ask the jury to come out please.”
Mr. Pappas: “If you want to poll them to see if these were the instructions they received, I have no objection.”
The Court: “I don’t know whose handwriting is on the top of this. That isn’t mine.”
Mr. Pappas: “That isn’t mine. It probably was the clerk’s. That’s the set that was downstairs, because they’re stamped. On the back.”
Mr. Ryan: “There’s an extra set of instructions that goes with the file.”
The Court: “The point is that I want to check the law on it.”

There is nothing in the record to corroborate the assertion that the jury was in fact given copies of the marked instructions, or that the instructions were confusing or misleading to the jury. We also note that no factual basis exists to ascertain from the record before us whether or not marked copies of the instructions were actually delivered to the jury or whether the jury actually did have possession of such marked copies of the instructions. While it appears that the question was raised by defendant’s counsel on the morning following the end of the trial, when the sealed verdict was being opened, there is some confusion as to just what happened. After the jury was polled, nothing was said concerning the instructions they had received or whether they had been misled or confused, nor did defendant’s counsel inquire further into the matter. Where there is no fraud, deception or deliberate harm shown as to the tendering to the jury of instructions, no reversible error has occurred, and the application of the harmless error doctrine is favored when it appears that the rights of the complaining party have in no way been prejudiced. Cohn v. Petroleum Heat & Power Co., 44 Ill App2d 23, 194 NE2d 29 (1963); Kaptain v. Overgaard, 19 Ill App2d 483, 154 NE2d 105 (1959).

Defendant contends also that the trial court erred in giving Plaintiff’s Instruction Number 3 since it is not a concise statement of the ultimate issues involved, but rather a statement of allegations and denials in the complaint and answer of both parties. We have reviewed Plaintiff’s Instruction Number 3, and find that it follows that form as recommended by Illinois Pattern Jury Instructions No. 20.02, is not prejudicial against defendant’s case, does not compare with the instruction disapproved in Hammer v. Slive, 27 Ill App2d 196, 169 NE2d 400 (1960), and the trial court did not commit error in giving it.

We arrive next to defendant’s contention that the damages awarded in this case were excessive. While damages cannot be determined with mathematical certainty, each case must be determined according to its own circumstances, and that the trial judge and jury are best able to determine that sum which will fairly compensate an injured plaintiff entitled to a verdict. Rogers v. Gehrke, 77 Ill App2d 343, 222 NE2d 351 (1966). As a result of the fall, Mrs. Christianson sustained the aforementioned injuries to her right ankle and her left knee. She spent three months confined to a wheelchair and presently requires the aid of a cane to assist her in walking. Medical testimony recited that the injury to the left knee was permanent in nature in the absence of further surgery. After her period of convalescence, Mrs. Christianson was unable to pursue her former occupation, a bookkeeper, was only able to perform part-time employment as a nurse, and her ability to perform normal household duties was curtailed. We do not believe that the damages awarded are out of proportion to the injury and loss, nor are they excessive as to shock judicial conscience.

On the basis of the record before us, we must conclude that the rulings of the trial court did not constitute reversible error and should be affirmed. The judgment of the Circuit Court of Cook County is therefore affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Chicago Transit Authority, a Municipal Corporation, Plaintiff-Appellee, v. Fair Employment Practices Commission, Defendant-Appellant, and Wilford C. Spears, Defendant.
    Gen. No. 52,530.
    First District, First Division.
    December 16, 1968.

      William G. Clark, Attorney General of the State of Illinois, of Chicago (John J. O’Toole and Stuart D. Perl-man, Assistant Attorneys General, of counsel), for appellant.

      George J. Schaller, O. R. Hamlink, Jerome F. Dixon, and James A. McLendon, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an action for administrative review under the Administrative Review Act, Ill Rev Stats 1967, c 110, par 264 et seq., of a decision and order by the Illinois Fair Employment Practices Commission, hereinafter referred to as the Commission, against the Chicago Transit Authority, hereinafter referred to as the CTA. The Commission found that the CTA had committed an unfair employment practice as defined in section 3(a) of the Illinois Fair Employment Practices Act, Ill Rev Stats 1967, c 48, par 853. The Circuit Court of Cook County reversed the decision of the Commission on a finding that the Commission’s order was not supported by a preponderance of the evidence. This appeal is taken by the Commission from the Circuit Court’s order.

On March 30, 1964, a charge was filed with the Commission by Wilford C. Spears, charging his employer, the CTA, with an unfair employment practice under the Illinois Fair Employment Practices Act. On November 30, 1965, the Commission, in accordance with the applicable provisions of the Act, issued a formal complaint of unfair employment practice on behalf of Spears. The CTA answered the complaint denying that it had committed any unfair employment practice as charged. In substance, the charge filed with the Commission and the formal complaint issuing therefrom alleged that Spears, a switchman employed by the CTA for over ten years, was involved in his first accident on February 28, 1964, and as a result of this accident he was discharged. Subsequently, on March 25, 1964, he was reinstated as a conductor, a demotion in job classification. As to the matter of discipline, Spears alleged that he had been subjected to more severe disciplinary action than other employees of the CTA who had only received token punishment in accidents more severe than his.

Pursuant to notice, the cause was set for public hearing before a Hearing Examiner of the Commission on January 10,1966. Throughout the proceedings, both parties were represented by counsel. They were given full opportunity to offer evidence, examine and cross-examine witnesses, submit briefs and present oral argument. After extensive hearings, the Hearing Examiner found that the CTA did violate section 3(a) of the Fair Employment Practices Act, and his report recited that his findings and conclusions were based upon a preponderance of the evidence as required under section 8(f) of the Act. The order and decision of the Commission also recited that it was based upon a preponderance of the evidence.

The CTA filed Administrative Review proceedings, pursuant to the provisions of the Administrative Review Act, Ill Rev Stats, 1967, c 110, par 264 et seq., as provided for in section 10 of the Fair Employment Practices Act. In the complaint in the Administrative Review proceeding, plaintiff CTA charged that the allegations of Spears’ complaint filed with the Commission of one or more unfair labor practices against him were not sustained or proved by a preponderance of the evidence; that a preponderance of the evidence did not establish that the discipline meted out to Spears was more severe than that meted out to other CTA employees for similar or greater accidents; that the Hearing Examiner erroneously concluded to the contrary; and that the findings of the Commission were unreasonable and arbitrary.

The CTA argued before the trial court that the Commission’s order and decision was not supported by a preponderance of the evidence. The court, agreeing with the CTA, found that a preponderance of the evidence did not support the findings and conclusions of the Commission that Wilford C. Spears was discriminated against and received a more severe disciplinary penalty than other employees would have received; that a preponderance of the evidence did not establish that the CTA committed any unfair labor practice against Wilford C. Spears; and that the Commission’s order and decision were not supported by a preponderance of the evidence. The judgment order of the court then adjudged that the order of the Commission be reversed in whole without remandment. The Commission now appeals that order to this Court.

Defendant raised the following issues for determination: (1) whether it is proper to reverse an administrative decision under the Administrative Review Act on the basis that it is not supported by a preponderance of the evidence or that it is against the manifest weight of the evidence; and (2) whether the administrative decision was against the manifest weight of the evidence. A brief review of the evidence submitted by the parties to the Hearing Examiner reveals that the evidence was principally work records of nineteen other CTA employees involved in “chargeable” accidents and rule infractions, and the testimony of Spears and others concerning the accident of February 28, 1964. The work records were presented in order to establish a comparison of the disciplinary action taken by the CTA against these other employees due to their involvement in accidents and. that disciplinary action extended to Wilford C. Spears.

The accident occurred in the CTA’s 61st Street Yard, at about 2:50 p. m., on a clear, dry day. Spears testified that he had moved a four-car train into the yard, preparatory to moving it across the lead track through a switching operation which would put the train on another set of tracks for subsequent use later. Stopping the train after moving it in position just far enough to clear the lead track, he walked through the four cars to the south end of the train, the end nearest the lead track, and entered the motorman’s cab. He put the window down, waited for the switch to be thrown, put his head out of the window and looked to the side and the rear as far as he could. As far back as he could see, the upper portion of the lead track was clear and there was no movement upon it. Spears started the train and began moving toward the switch, but did not look around once he had started moving the train, and was not aware of another train moving toward him. Spears heard a noise and quickly made an emergency stop. Another train was coming off the main line into the lead track and the two trains collided, this other train striking the car Spears occupied. The car was tilted to one side and derailed; there were no injuries, and the damages were under $1,000. The car was rerailed and the scene of the accident cleared within a short time. The operator of the other train was Lester E. Love. Both Spears and Love were held equally responsible for the accident, and both were discharged and then reinstated as conductors only. Spears lost twenty-three days’ pay and was permanently disqualified as a switchman.

Mr. Love was called as a witness by the CTA. He testified that at the time of the accident he was traveling along the upper lead track at between five and ten miles per hour, and that the two trains made contact by the head end of the Love front car hitting right in back of the Spears’ motorman’s cab. Love’s motorman’s cab was on the right side of his front car, the side away from the yard track on which Spears was approaching the puzzle switch. When questioned about the accident at the 61st Street Superintendent’s office after the accident, Spears told Mr. O’Connor, station superintendent, that he had a blind spot coming off track “2-above.” Spears also claimed to have the right-of-way, because he stated that before he could see Love’s train coming into the lead or entering the lead he, Spears, had his train far enough out to have the lead blocked.

The Hearing Examiner concluded that the CTA supervisory personnel could, as they did, reasonably determine that there was a failure of alertness on the part of Spears, and a degree of fault on his part, that justified some measure of disciplinary action. In other words, the CTA did not act arbitrarily in finding some fault and in determining that some disciplinary action was warranted. The controlling question, in the opinion of the Hearing Examiner, was whether the discipline meted out to Spears, when compared with the severity of discipline meted out in other instances of employee accident cases adduced by both parties, indicates, by a preponderance of the evidence, discriminatory action against Spears by the CTA, which therefore constituted an unfair employment practice within the meaning of the Fair Employment Practices Act.

Spears and his counsel caused the CTA to produce and have placed in the record the work records of seven CTA employees. The CTA, to counter Spears’ charge, similarly placed in evidence the work records of twelve more of its employees. The purpose of tendering these work records was to make a comparison of the severity of the accident and the disciplinary action taken in various accident situations as compared with the discipline given to Spears as a result of his accident. The accidents disclosed by the work records were not the subject of any oral testimony by any of the employees involved or the witnesses to those accidents. There was nothing in evidence other than the documents themselves, which, in many cases, did not tell a great deal about any given occurrence, making it difficult to compare one accident with another and to weigh the severity of the resulting discipline. Charles Keiser, CTA Operating Manager, and D. M. Flynn, CTA Superintendent of Transportation, both stated in substance that in disciplinary cases, each individual case is different, and that there is no rule book type of punishment, but rather that the facts of each case must be evaluated and weighed. Flynn also stated he “could find no reasonable excuse for this accident. . . .”

In comparing the disciplinary action meted out by the CTA in accident cases, the work record of Wilford C. Spears was examined. Mr. Spears’ work record revealed he was first employed by the CTA in November, 1953. He qualified for switchman in June 1956, and remained in that job classification until he was demoted to conductor in March 1964, following the accident of February 28, 1964. That accident was his first involvement in a train collision where he had control over operation of a train, during his years as a switchman. Spears, however, admitted being involved in a number of accidents as a CTA bus operator in 1954 and 1955, his work files indicating that four of these accidents were chargeable against him. Both the CTA and Spears were privileged to introduce any other evidence relevant to the issues of the case, but did not do so. Moreover, neither party following the issuance of the Recommended Order and Decision of the Hearing Examiner, made application to the Commission to present additional evidence, as permitted by the Act. The Hearing Examiner found that six of the seven work records introduced by Spears supported the allegation in the Complaint that Spears and other employees of his race were more severely disciplined for accident involvement than other employees at the 61st Street Yard where Spears worked. The seventh work record referred to by Spears was not sufficiently comparable on the facts to the instant case to have evidentiary value. Of the twelve work records introduced by the CTA, of which eight related to employees not employed at the 61st Street Yard where Spears worked, the Hearing Examiner found that two tended to support the CTA’s denial of discriminatory application of discipline, and that the other ten were not sufficiently comparable on the facts, and therefore had little relevance for evidentiary purposes.

The Commission upheld the conclusion of the Hearing Examiner that a preponderance of the evidence supported Spears’ allegation in his complaint, and found that Wilford C. Spears, by receiving a more severe disciplinary penalty than other CTA employees received under comparable circumstances, was discriminated against by the CTA by being first discharged, then reinstated from the position of switchman to that of conductor because of the accident of February 28, 1964, and that such action on the part of the CTA constituted an unfair employment practice as defined by the Fair Employment Practices Act. Accordingly, Wilford C. Spears’ complaint against the CTA was sustained.

The CTA filed an action in the Circuit Court of Cook County for administrative review under the Administrative Review Act, supra. The court, being fully advised in the matter, found that a preponderance of the evidence did not support the findings and conclusions of the order and decision of the Fair Employment Practices Commission that Wilford C. Spears was discriminated against by being demoted from the position of switchman to that of conductor and by being permanently disqualified from future consideration as a switchman and that Wilford C. Spears received a more severe disciplinary penalty because of his race than other employees have received under the most comparable circumstances; and that a preponderance of the evidence did not establish that the CTA committed any unfair employment practice toward Wilford C. Spears in violation of the Fair Employment Practices Act. The court therefore ordered and adjudged that the order and decision of the Fair Employment Practices Commission be reversed in whole without remandment.

The purpose of the Administrative Review Act is to provide a method of review whereby decisions of administrative bodies may be subjected to the judgments of courts as to their validity. Krachok v. Department of Revenue, 403 Ill 148, 85 NE2d 683 (1949). Defendant contends that under the Administrative Review Act, it is provided that “The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct,” Ill Rev Stats 1967, c 110, par 274, and that an administrative decision cannot be reversed unless contrary to the manifest weight of the evidence. It is upon the “prima facie true and correct” portion of paragraph 274 that defendant endeavors to sustain its position, while plaintiff contends that pursuant to paragraph (f), section 8 of the Fair Employment Practices Act, Ill Rev Stats 1967, c 48, par 858(f), the following provision is mandatory upon the Commission:

“When all the testimony has been taken, the commissioner or hearing examiner shall determine whether the respondent has engaged in or is engaging in the unfair employment practice with respect to the complainant as charged in the complaint. A determination sustaining a complaint shall be based upon a preponderance of the evidence.”

In construing the provisions of these two separate legislative acts, it is clear the Illinois General Assembly has charged the Fair Employment Practices Commission with the duty of finding that a party has committed an unfair labor practice only where the charge has been proved by a preponderance of the evidence. This requirement that the Commission shall make its determination upon a preponderance of the evidence is applicable only to the Fair Employment Practices Act. All of the cases cited by defendant supporting its position have been decided under acts of the General Assembly which do not have the requirement that “A determination sustaining a complaint shall be based upon a preponderance of the evidence.” The preponderance of the evidence test is unique to the Fair Employment Practices Act and an exception to general legislative policy granting quasi-judicial authority to administrative bodies.

An administrative agency must pursue the procedure and rules laid down by the legislature to give validity to its action, Chicago Rys. Co. v. Commerce Commission ex rel. Chicago Motor Coach Co., 386 Ill 51, 167 NE 840 (1929), and the purpose of judicial review of an administrative agency’s decision and orders is to keep the agency within the jurisdictional and judicial bounds guaranteed by the Constitution and statutes. Curtis v. State Police Merit Board, 349 Ill App 448, Ill NE2d 159 (1953). Where the legislature has imposed , a standard of proof upon the findings and conclusions of an administrative body, the “prima facie correct” phrase may only mean that the findings and conclusions of the administrative agency are prima facie correct when it appears that such standard of proof has been met. In the instant case, the trial court analyzed the evidence and determined for itself that the evidence before the Commission did not satisfy the preponderance of the evidence test.

In Motorola v. Illinois Fair Employment Practices Commission, 34 Ill2d 266, 215 NE2d 286 (1966), the procedural facts are similar to the procedural facts here. In the Motorola case, a complaint was filed with the Commission charging Motorola with having committed an unfair employment practice. The Commission made an investigation and determined that there existed substantial evidence that Motorola had committed an unfair labor practice. Thereupon, the Commission issued a complaint of unfair employment practice. The factual issues were referred to a hearing examiner who heard evidence and made a report, resolving the issues against Motorola. Thereafter the Commission sustained the report of the hearing examiner and entered an order and decision finding that Motorola had committed an unfair labor practice. Motorola filed a complaint in the Circuit Court of Cook County under the provisions of the Administrative Review Act to review the order and decision of the Commission. The Circuit Court sustained the action of the Commission and entered judgment against Motorola. An appeal to the Supreme Court was then perfected by Motorola. The essence of the charge, discrimination, was that Motorola had falsely graded an examination of the complainant when he applied for employment. After a lengthy and painstaking review of the evidence, the Supreme Court said:

“When all the evidence in this case is considered, some suspicion might reasonably remain that the plaintiff had falsely recorded Myart’s test score. Under the Fair Employment Practices Act, however, that suspicion is not enough. The Act provides that ‘A determination sustaining a complaint shall be based upon a preponderance of the evidence.’ (Ill Rev Stats 1968, c 48, par 858(f).) On the record in this case, we are of the opinion that the alleged unfair employment practice was not established by a preponderance of the evidence. The judgment of the circuit court of Cook County is therefore reversed.”

It is to be seen that the Supreme Court arrived at its judgment through the test of the preponderance of the evidence and found the evidence wanting. It is significant to note that the Court reversed the action of the trial judge who used an altogether different test, namely that the findings of the Commission were supported by competent evidence from which reasonable men could draw an inference of discrimination.

In the instant case, it was the trial court’s function to ascertain if the findings and conclusions of the Commission were within the limits of the powers given to the Commission by statute. Since, as we have previously mentioned, the purpose of judicial review is to keep the administrative agency within the bounds guaranteed by the Constitution and by statute, in no other way could the trial court determine whether the Fair Employment Practices Commission kept within the limits of the statute in question in the quantum of proof upon which it (the Commission) was to act than by ascertaining whether the Commission made its determination upon a preponderance of the evidence. This, the trial court found, was lacking. It is our opinion that the trial court properly set aside the findings and conclusions of the Fair Employment Practices Commission pursuant to paragraph 858(f) of the Fair Employment Practices Act, and the holding in the Motorola case, since such findings and conclusions were not supported by a preponderance of the evidence presented.

On review of this administrative proceeding, it is not the function of the Appellate Court to weigh or reweigh the evidence presented, but it is for us to ascertain if the findings and decision of the Commission are supported by a preponderance of the evidence. In this respect, we agree with the trial court for the reasons set forth above. Consequently, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Reed, Defendant-Appellant.
    Gen. No. 52,638.
    First District, First Division.
    December 16, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Johnnie Reed, was charged with the crime of attempted robbery (Ill Rev Stats, c 38, § 8-4). He was found guilty after a bench trial and was sentenced to the Illinois State Penitentiary for not less than one year nor more than three years. Our record shows that the date of conviction was April 19, 1967, and that on the same day notice of appeal was filed. The abstract and brief for the defendant was filed on August 23, 1968, more than a year later, by the Public Defender. The brief for the State was filed on September 25, 1968. No reply brief was filed and oral argument was heard on November 18,1968.

The defendant contends, on appeal, that the State did not establish defendant’s guilt beyond a reasonable doubt, on the ground that the single identification of the defendant was vague, doubtful and uncertain. This contention is predicated upon the fact that the description of the complainant gave the police said nothing about the assailant’s face, but merely mentioned the dark coat he, the assailant, was wearing. The rule is well established in Illinois that a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful and uncertain. People v. Ikerd, 26 Ill2d 573, 579, 188 NE2d 12. However, a single identifying witness has been held sufficient to sustain a conviction. People v. Hunter, 23 Ill2d 177, 180, 177 NE2d 138.

The evidence reveals that Ernesto Pizarro, the complaining witness, was returning to his apartment about 8:45 p. m. on January 30, 1967. When nearing Wabash Avenue on 9th Street, he was approached by a man wearing a dark coat and holding a gun, “a beautiful Lombardi revolver.” The assailant said “give me some money” to which Pizarro replied “I no have no money, I give you no money.” When asked what happened after he told the assailant that he had no money, the complainant answered “Well, I walked into my home . . . across the street, I am watching the guy to see he is going downtown or turning south.” Mr. Pizarro said he observed the assailant walk east on 9th Street and then south on Michigan Avenue. The complaining witness then went outside, hailed a passing police squad car, and went “looking for a guy with a dark coat on.” Twenty minutes later, at about 12th Street on Michigan Avenue, the occupants of the squad car saw a man walking behind some parked cars. The squad car turned around and two policemen got out of the car to apprehend the man. The two police officers seized the defendant and brought him back to the squad car where Pizarro identified him as the man who had accosted him. Mr. Pizarro also testified that at the time of the attempted robbery, lighting conditions were good.

Spencer Coleman, a police officer, testified that after Pizarro entered his squad car they saw a person walking on Michigan Avenue about the 1200 block. The man they observed “had the type of hat that the complainant had described, and he had a bundle, it looked like he was putting on his coat.” Officer Coleman said they then turned the squad car around in order to face the defendant. When they had done this the defendant ran away. The defendant, when apprehended, was carrying a dark gray coat and had taken off all of his clothes except his pants, shirt and shoes. The defendant also had thrown his hat on the ground. Officer Coleman said that the defendant struggled for a few minutes when he was arrested.

The defendant testified that he was unemployed and had been job hunting that morning. He further testified that he had attended a movie in the early evening and at 7:20 p. m. started to walk home. The defendant denied that he had attempted to rob Pizarro and also denied that a police officer had chased him on the night in question. He said he did not own a gun.

It appears from the testimony of the various witnesses that Pizarro’s identification of his assailant rested entirely on the dark coat the assailant was wearing and the “beautiful Lombardi revolver” which was never found. The only words the assailant uttered were “Give me some money.” On direct examination the complaining witness did not state the length of time he observed the defendant during the robbery attempt. The complainant also did not give a description of the defendant based on impressions received at the time of the attempted robbery. After Mr. Pizarro testified to the few words that passed between his assailant and himself and how the defendant was apprehended, he was asked the following questions and he made the following answers:

Q. Now, did you see the defendant sitting in the courtroom, Johnnie Keed, immediately after this? Did you see him?
A. Immediately afterwards, I don’t identify him from face to face, but I identify the coat that he was wearing as a dark coat.
Q. Did you see him face to face?
A. Yes, sir.
Q. And was anyone with Johnnie Reed when you saw him face to face ?
A. The policeman.
Q. And about how much later in terms of minutes was this that you saw Johnnie Reed from the time in which Johnnie Reed said “Give me your money.”
A. Twenty minutes.

From the foregoing testimony Mr. Pizarro apparently did not see the defendant face to face until the policemen brought the defendant to the squad car.

The defendant relies heavily on the case of People v. Kincy, 72 Ill App2d 419, 219 NE2d 662. In that case the Appellate Court reversed a conviction of robbery after a bench trial because of the failure of complainant to make a facial identification of the defendant. There, as here, the complaining witness did not at any time testify that she had seen the defendant’s face or any of his features during the robbery; after the robbery she called the police and told them that she had been held up by a tall, thin brownskinned man; that the robber wore a jacket and a hat, and that he was in his early thirties. The defendant was apprehended about sixteen blocks from the occurrence and the complaining witness identified the defendant as her assailant by no other characteristics than the color of his jacket, about which she was not positive, and the color of his hat.

The State claims that the complainant was able to and did identify the defendant by more than the “dark coat,” and that the identification in the instant case is not analogous to the identification made in People v. Kincy, 72 Ill App2d 419, 219 NE2d 662. They support their claim with the following language from People v. Jackson, 95 Ill App2d 28, 32, 237 NE2d 858:

[t]he fact that Mrs. Lanier failed to remember certain physical characteristics of her assailant does not, as a matter of law, render her identification of the defendant unworthy of belief.

In Jackson, the defendant was charged with rape and attempted rape. The complainant testified that during the two minutes that the defendant was on top of her she was able to observe his face, haircut and clothes. She also testified that she told the police her attacker’s height, weight, skin color, and the color of his shirt, pants and jacket. We held that the failure on her part to identify a scar on the defendant’s face did not in itself create a reasonable doubt of the defendant’s guilt in view of her positive identification, corroborated in part by her daughter. We fail to see how this case is helpful to the State. We also find that People v. Suarez, 96 Ill App2d 153, 237 NE2d 841, cited by the State is dissimilar on the facts.

The State points out that on cross-examination the complaining witness was asked:

Q. Now, you say the man that did this to you had a dark coat on ?
A. Yes, sir.
Q. Do you remember anything else about him ?
A. Well, his eyes.
Q. What about his eyes ?
A. His eyes are—
Q. Pardon?
A. His eyes are a little more elongated.
Q. Long eyes ?
A. Yes.

Further on in the cross-examination Mr. Pizarro was asked:

Q. Now, when you first saw this man, did you notice anything unusual about him, about his looks or anything?
A. Yes, his eyes, his eyes looked like that.

We have endeavored to state the material parts of the testimony as shown in the record. The conviction of the defendant rests wholly upon his identification by the prosecuting witness. We do not question the good faith of Mr. Pizarro in his identification of the defendant as his assailant. The circumstances leading up to such identification, however, must be so convincing that there is no reasonable doubt that the crime could have been perpetrated by someone else.

The entire incident involving Mr. Pizarro and his assailant, as determined from the testimony of the victim could have taken only a few seconds. In weighing the evidence of identification of one stranger by another, the attendant circumstances, together with the probability or improbability of affording an opportunity for a definite identification, must be considered and weighed, for after all, the identification of one person by another who has never seen him before, is an opinion or conclusion of the identifying witness. People v. Peck, 358 Ill 642, 649, 193 NE 609. It appears to us from the evidence that the principal identification of the defendant made by Pizarro was by means of a dark coat. It probably could be that the testimony of Mr. Pizarro regarding the defendant’s eyes was formed when the defendant was apprehended and brought face to face with him at the squad car, the first place the complaining witness had an ample opportunity to observe the defendant. We think, therefore, that the reasoning and the holding of People v. Kincy, 72 Ill App2d 419, 219 NE2d 662 should be applied in the instant case and we have concluded from the record that the uncorroborated identification of the defendant by the complainant is doubtful, uncertain and unconvincing.

The State also raises the fact that the defendant fled when he saw the police car turn around and come towards him. In a criminal case the burden rests upon the prosecution not only to prove beyond a reasonable doubt the commission of the crime charged, but also to establish by the same degree of proof the perpetration of the crime by the person accused. People v. Kidd, 410 Ill 271, 276, 102 NE2d 141. The fact that the defendant fled when approached by police officers raises no legal presumption that he is guilty of the particular crime charged in the indictment and does not lessen the State’s burden of proof. The fact of flight is a circumstance which may be considered in connection with all the other facts and circumstances in evidence. People v. Weber, 401 Ill 584, 83 NE2d 297.

After a consideration of the whole record we cannot say that the guilt and identity of the defendant is established to that point which admits no reasonable doubt of guilt. Inasmuch as the State can produce no further evidence bearing on defendant’s guilt, no useful purpose would be served by remanding the cause for another trial.

Judgment reversed.

ADESKO and MUEPHY, JJ., concur.


author: ME. JUSTICE MUEPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ulysses Callahan, Defendant-Appellant.
    Gen. No. 52,710.
    First District, First Division.
    December 16, 1968.

      Paul B. Ballin, Jr., of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Eobert Eosch, and Charles E. Whelan, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE MUEPHY

delivered the opinion of the court.

In a bench trial, defendant was found guilty of aggravated assault. He was admitted to probation for two years, with the first six months to be served in the House of Correction. On appeal, defendant contends he was not proved guilty beyond a reasonable doubt, and that a jail sentence was not warranted because there was no physical injury.

Defendant was charged with aggravated assault in violation of chapter 38, section 12-2 (a) (6) of the Illinois Eevised Statutes. Section 12-1 provides:

“(a) A person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery.”

Section 12-2 provides:

“ (a) A person commits an aggravated assault, when, in committing an assault, he:
“(6) Knows the individual assaulted to be a peace officer, or a person summoned and directed by him, while such officer is engaged in the execution of any of his official duties.”

The evidence shows that on June 12, 1967, the complaining witness, Gary Rodeghier, a Chicago police officer, was in the Criminal Court Building, 2600 South California Avenue, Chicago, attending court in the execution of his official duties. During a court recess, and while the officer was standing in a hallway conversing with Edward Genson, an attorney, the defendant, Ulysses Callahan, walked up to him, pushed him up against the wall and said, “You white M-F, I am going to kill you when this case is over.” Four other police officers grabbed defendant and subdued him. Officer Rodeghier testified he asked the defendant “for what purpose he did this. And he said, with all the prejudice going on in the city was the reason he was being arrested. I said, T didn’t arrest you.’ He said, ‘Well, I have had a few drinks and I want to apologize.’ ” In the opinion of the officer, defendant was intoxicated. On cross-examination, the officer denied that he had had a controversy with defendant that morning in a parking lot adjoining the court building. He said that he had never seen Callahan before the occurrence in the hallway.

Edward Genson testified in corroboration, and that he did not know of any provocation or of the parking lot controversy.

Defendant testified that on the morning of June 12, he had had an argument with Officer Rodeghier in the parking lot area adjacent to the court building, during which the police officer was very abusive and pulled his pistol and cocked it. He further testified that later, while he was standing in a hallway outside of a courtroom, the officer approached him with a blackjack and threatened him saying, “You are under arrest.” Defendant denied that he threatened or pushed the officer. He further stated that he was not intoxicated and had not been drinking before the incident.

James Smith, a witness for defendant, corroborated defendant’s testimony as to the parking lot incident. He was present during the hallway occurrence but did not see exactly what happened. The officer asked him (Smith) if his buddy had “cooled off yet.” He did not see defendant strike the officer, but he did see the officer approach Callahan.

In rebuttal, the police officer and Genson both testified they had never seen James Smith before.

Initially we agree with defendant’s contentions that it is the duty of the court to resolve the facts and evidence on a theory of innocence rather than guilt, if that can be done; in criminal cases it is the duty of the reviewing court to review the evidence, and if there is not sufficient evidence to remove any reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed; the facts and circumstances proved must be sufficient to establish the guilt of the person charged with a moral certainty and to the exclusion of every other hypothesis.

However, the application of the foregoing pronouncements here does not require a finding that defendant was not proved guilty beyond a reasonable doubt. In a non jury trial it is the duty of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt, the finding of the court will not be disturbed. In this case the trial judge chose to believe the witnesses for the State and, in view of the evidence presented, we are unable to say that he erred in so doing.

Defendant’s conduct and his threat to kill the complaining witness, known to defendant as a police officer who was then engaged in his official duties, was sufficient to place the officer “in reasonable apprehension of receiving a battery.” Defendant’s serious threat and his acts of a violent nature could reasonably have been expected to result in injury to the complaining officer if the four other police officers had failed to promptly subdue the defendant. We conclude the evidence was adequate to prove that defendant was guilty beyond a reasonable doubt of an “aggravated assault,” in violation of section 12-2 (a) (6).

Considered next is defendant’s contention that the condition of probation which directed defendant to spend the first six months of the probation period in the House of Correction was extreme punishment for the misconduct involved here, where there was no physical injury.

After defendant was found guilty of aggravated assault, the State showed in aggravation that in 1945 defendant was convicted of armed robbery. In mitigation defendant testified that he was 44 years old and was married, with a family. He had been working for Libby, McNeill & Libby for fourteen years and had no difficulty with the law during the past fifteen years. In granting probation the court remarked, “I am going to give him a lot of time. It is difficult enough for the police officers to take abuse on the streets, which they do constantly; but when they have to take it in the Criminal Court Building, half of the time when they are here on their day off, this is going too far.”

The State argues a period of incarceration was warranted because defendant was guilty of a violent attack on an officer of the law, and of an exhibition of blatant contempt for the law and the dignity of the courts, and of conduct tending to disturb the right of society to peace and security.

We agree with the remarks of the trial judge and the argument of the State as to the seriousness of defendant’s conduct. However, we are not persuaded that the interests of society will be best served here by defendant spending the first six months of his probation period in the House of Correction. Accepting as true defendant’s statements made in mitigation, that he has worked for Libby, McNeill & Libby for a period of fourteen years and that he is still so employed (so stated by his attorney in this court during oral argument), we believe the probation order should be modified so as to eliminate the imprisonment part of the order.

Therefore, the finding of guilty of the offense of aggravated assault is affirmed. The order of probation is amended by reversing and eliminating that part of the order which directs the imprisonment of defendant in the House of Correction for six months and, as amended, the order of probation is affirmed.

Judgment modified and affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: GOLDENHERSH, P. J.

text:
    Harold R. Adams, Plaintiff-Appellee, v. Ford Motor Company, a Corporation, Defendant-Appellant.
    Gen. No. 67-127.
    Fifth District.
    December 17, 1968.

      John E. Jacobsen, Craig & Craig, of Mt. Vernon, for appellant.
    Gosnell, Benecki & Quindry, and Roscoe D. Cunningham, of Lawrenceville, for appellee.
   GOLDENHERSH, P. J.

Defendant appeals from the judgment of the Circuit Court of Lawrence County in the amount of $9,500 entered upon a jury verdict in plaintiff’s action for personal injuries and property damage.

In his complaint plaintiff alleges the purchase of a pickup truck manufactured by defendant, defendant’s failure to securely fasten the cab to the chassis and frame, the existence of an unreasonably dangerous condition when the vehicle left defendant’s control, and that plaintiff was injured and his vehicle destroyed as the result thereof. Plaintiff also alleged freedom from contributory negligence.

The evidence shows the vehicle was purchased on July 25, 1966. On August 18, 1966, when the truck had been driven approximately 1,800 miles, plaintiff was rounding a curve, the truck ran onto the rippled area separating two lanes of traffic, veered to the right and went down an embankment. When it came to rest the cab was separated from the chassis.

A witness called by plaintiff testified that early in August 1966, he installed a trailer hitch and tow bar on the truck, and while the truck was jacked up he discovered a bolt was missing. Plaintiff’s exhibit 3, a photograph of the bottom of the cab, taken after the occurrence, shows five bolts, and what appears to be a hole intended for a sixth bolt, in the left front of the bottom of the cab.

An engineer employed by defendant, called by plaintiff under section 60 of the Civil Practice Act, testified that when trucks of the type here involved are assembled, the cab is fastened to the chassis by means of bolts at six different locations. Later, when called in the defendant’s case, he stated that plaintiff’s exhibit 3 showed the areas where these bolts are mounted. A mechanic employed by the dealer from whom the truck was purchased testified that he prepared it for delivery, and all six bolts were present at that time.

Defendant contends that plaintiff failed to prove his injury and damages resulted from an unreasonably dangerous condition of the product which existed at the time it left defendant’s control, and the court erred in denying its motion for directed verdict.

In Lindroth v. Walgreen, 407 Ill 121, 94 NE 2d 847, the Supreme Court said at page 133, “In Devine v. Delano, 272 Ill 166, and Town of Cicero v. Industrial Commission, 404 Ill 487, this court held the rule to be that reasonable inferences may be drawn from established facts and all that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion.” And at page 135, “A verdict may not be set aside merely because the jury could have drawn different inferences or because judges feel that other conclusions than the one drawn would be more reasonable.”

There is evidence from which the jury could draw the inference that the bolt was missing when the truck left defendant’s control, that by reason thereof, there existed an unreasonably dangerous condition, which caused plaintiff’s injury, and applying the rule of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, the court did not err in denying defendant’s motion for a directed verdict.

Defendant contends that having pleaded freedom from contributory negligence, plaintiff was required to prove the allegation, and having failed so to do, the court erred in its refusal to direct a verdict in defendant’s favor. Except for this allegation, the case was pleaded and tried on a strict liability theory (Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182) and plaintiff contends the allegation of due care is surplusage.

In Williams v. Brown Mfg. Co., 93 Ill App2d 334, 236 NE2d 125, this court held that in an action pleaded and tried on a theory of strict liability in tort, contributory negligence is an affirmative defense to be pleaded and proved by the defendant. In our opinion, the trial court correctly held the allegation to be surplusage, and that plaintiff was not required to prove freedom from contributory negligence.

Defendant contends the court erred in refusing to permit defendant to amend its answer so as to include therein, as an affirmative defense, the allegation that at the time of, and prior to the occurrence, plaintiff was negligent in one or more of the following: driving at excessive speed, driving while under the influence of intoxicating liquor, failure to keep a proper lookout, failure to keep his vehicle under proper control, and that his injuries were directly and proximately caused by one or more of said acts. The court sustained an objection to the amendment on the ground that any misconduct or omission on plaintiff’s part would not be a defense to the action unless it was the sole, and not a concurring or contributory cause of his injury. Consistent with its ruling, the court refused defendant’s tendered instructions in the form of IPI 20.01,10.03 and 11.01.

In Williams v. Brown Mfg. Co., 93 Ill App2d 334, 236 NE2d 125, this court defined “contributory negligence” as it pertains to a case of strict liability in tort. Insofar as here applicable it consists of voluntarily and unreasonably proceeding to encounter a known danger. The allegations contained in the proposed amendment to defendant’s answer are sufficient to charge contributory negligence as herein defined.

We have carefully examined the cases and find no support for the contention that in a case of strict liability in tort, a plaintiff’s negligence, to bar recovery, must be the sole, and not a contributory cause of his injury. We hold, therefore, that the trial court erred in its ruling and the judgment must be reversed.

Defendant has briefed and argued two matters which may become material upon retrial.

During rebuttal, plaintiff called the Circuit Clerk of Lawrence County, who identified instruments showing one of defendant’s witnesses had been found to be in need of mental treatment and ordered confined to Anna State Hospital on December 8, 1961, and again on June 26, 1963. Records offered and admitted in evidence show him to have been given an absolute discharge from the first confinement on February 8, 1962, and from the second on August 26,1963.

Defendant contends the court erred in admitting the evidence of the witness’ need of mental treatment, and plaintiff argues that although mental weakness which falls short of complete mental incapacity does not render a witness incompetent, it may affect his credibility, and the evidence was properly admitted.

In People v. Nash, 36 Ill2d 275, 222 NE2d 473, the Supreme Court rejected the defendant’s contention that the trial court erred in refusing to order a psychiatric examination of the People’s principal witness. What was said in that opinion is here applicable, and the trial court erred in overruling defendant’s objections to the evidence.

Relying upon Bangert v. Emmco Ins. Co., 349 Ill App 257, 110 NE2d 528, defendant contends the court erred in permitting plaintiff to testify as to the value of his truck. The requirements for qualifying a witness as to the value of personalty should not be more stringent than those necessary to qualify a witness as to the value of real estate. In either case the qualification is knowledge of values, Department of Public Works and Buildings v. Atkins, 68 Ill App2d 98, 215 NE2d 452. Such knowledge may be acquired with respect to motor vehicles in the same manner as is knowledge of the value of realty, and other forms of personalty. To the extent that the holding in Bangert v. Emmco Ins. Co. (supra) is to the contrary, we elect not to follow it.

We have reviewed defendant’s remaining contentions, and since the situations out of which the alleged errors arose are not likely to recur upon retrial, we do not further discuss them, except to point out that the credibility of the witnesses is a matter for the jury under proper instructions from the court, and additional comments from the court are neither proper nor necessary.

For the reasons set forth the judgment of the Circuit Court of Lawrence County is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

MORAN and EBERSPACHER, JJ., concur.


author: ALLOY, P. J.

text:
    In the Matter of the Estate of Loretta C. Dawson, Deceased. Elwin Dawson, et al., Petitioners-Appellees, v. Janie S. Dawson, Individually and as Executor of the Estate of Loretta C. Dawson, Deceased, Respondent-Appellant.
    Gen. No. 68-44.
    Third District.
    December 17, 1968.

      E. A. Gilchrist, of Walnut and Johnson & Martin, of Princeton, for appellant.
    Fred Potter, of Princeton, and Mason Bull, of Morrison, for appellees.
   ALLOY, P. J.

Petitioners Elwin Dawson, Harold Dawson, Edward Dawson, and Kathryn Brandenburg- filed a citation petition in the Circuit Court of Whiteside County in the Probate Division, requesting that Janie S. Dawson, individually and as Executor of the estate of Loretta C. Dawson, deceased, be cited to appear before the court and be examined with respect to the ownership of the sum of $11,000 on deposit in a joint account in the names of Loretta C. Dawson (deceased) and Janie S. Dawson. The joint account was in the Morrison General Electric Employees Federal Credit Union. Following a hearing upon such petition, the court entered a judgment against the respondent Janie S. Dawson in the sum of $11,000 and ordered said respondent to deposit the sum in the estate account of Loretta C. Dawson, deceased. The question for review is whether the petitioners presented clear and convincing evidence to rebut the presumption of gift established by the joint share agreement between decedent, Loretta C. Dawson, and the respondent Janie S. Dawson.

The decedent, Loretta, had lived with her son, Leo Dawson, and his wife, Janie S. Dawson (the joint owner named in the account), for approximately 20 years prior to her death on August 6, 1966. In March 1962 Loretta received $40,000 as proceeds of the sale of farmland which she had inherited. Loretta told Janie that she wished to put the money out on interest and wished to put a large sum in a credit union. Janie then talked to a Mr. Brady, the treasurer-manager of the Credit Union. Mr. Brady did not feel that Loretta should put the full amount that she had in the Credit Union so he went to talk with Loretta and Janie personally about opening the account. At this meeting in Janie’s home were Loretta (the decedent), Janie, Mr. Brady and Leo (who was Loretta’s son and Janie’s husband). Mr. Brady explained that Loretta was eligible to become a member of the Credit Union and deposit money in her own individual name. He then explained to Loretta that the Credit Union likes to have joint owners as it makes it easier to dispose of the money in the account at the time one of the owners dies. He read aloud the joint ownership card to all persons present. The card contained the standard provisions to create a joint tenancy. Mr. Brady asked Loretta if she would like to have a joint owner. Loretta said “Yes, I would like to have Janie sign the card.” Janie responded by saying “Don’t you want Leo to sign the card?” Loretta answered “No, I want you to sign the card.” Both Loretta and Janie signed the card at that time. The deposit was in the sum of $10,000. It was stipulated as between the parties that the $10,000 was the sole property of Loretta and that at about the same time Loretta had opened an individual savings account of $25,000 in the Central National Bank of Sterling, and a $5,000 individual checking account in the same bank. The latter two accounts remained in Loretta’s individual name and became part of her personal estate. There were no further deposits to the Credit Union account. In July 1966, when the account balance stood at $11,710.88, at the request of Loretta, Janie made a verbal request of the Credit Union for a withdrawal of $710.83 and also requested that the cheek be made payable to Loretta C. Dawson. This was done, leaving a balance in the account at the time of the death of Loretta of $11,000.

Loretta Dawson’s will was probated and Janie Dawson was named as Executor. The inventory filed in the Loretta Dawson estate listed the $11,000 account as a joint account owned by the decedent and Janie S. Dawson and such inventory further specified that it was not subject to claims. Janie did not withdraw any funds from the joint account after the death of Loretta. Four of the children of Loretta (petitioners herein described) petitioned the court to have Janie Dawson examined in regard to the ownership of the $11,000 joint account. At the hearing there was testimony about the account by Janie and several of Loretta’s children and their husbands and wives. As we have indicated, at the close of the evidence the trial court, having heard the matter without a jury, found that the $11,000 properly belonged to and should be paid by the said Janie S. Dawson into the estate of Loretta C. Dawson, deceased, and accounted for as an asset of her estate.

The parties recognized that the burden of proof in establishing that there was no gift in the joint account was imposed on petitioners and required to be established by clear and convincing proof. It was also clear that the trial court was not limited to looking only to the events at the time the account was created, but could consider all matters and declarations occurring after the establishment of the joint account as an aid in discovering intention of the parties at the time deposit was made. In the state of the record, the basic problem is whether the trial court was justified in determining that petitioners had by clear and convincing evidence proved that the joint account was not to pass to Janie Dawson, but was to be a part of the estate of Loretta Dawson.

Until recent years, joint accounts were permitted to pass to the survivor. In In re Estate of Schneider, 6 Ill2d 180,127 NE2d 445, however, the Supreme Court looked behind the written joint tenancy agreement to find that the account had actually been established as a matter of convenience rather than a gift to the surviving joint tenant and thus should be an asset of the estate of the first joint tenant to die. Other Illinois cases developed in detail the theory of looking behind the form of the written transaction to determine the actual intent of the parties themselves. In Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470, the court held that the written agreement or instrument creating a joint tenancy “presumably speaks the whole truth,” and that one who tries to show that the joint property should be included in the estate of

the first joint tenant to die, has the burden of establishing by clear and convincing evidence that a gift was not intended. Although the intent of the deceased joint owner at the time he created the joint tenancy is the determining factor, in this State the courts have looked to conversations, circumstances, and events occurring after the creation of the joint tenancy in order to ascertain the actual intent of the parties. In the case of In re Estate of Stang, 71 Ill App2d 314, 218 NE2d 854, Stang put stock in his name and another as joint tenants and then left in his bank box an invalid unwitnessed will explaining how he wanted the stock distributed. The court recognized that the will was invalid but it still looked to the writing to see its effect upon the intent to create a gift by joint tenancy. In that case the court stated (at page 317):

“Moreover, evidence of the lack of donative intention must focus upon or relate back to the time of the creation of the joint tenancy.”

The Supreme Court in Dixon Nat. Bank v. Morris, 33 Ill2d 156, 210 NE2d 505, specified that in determining if a joint tenancy account should be paid into the estate of the decedent, the court should consider such things as deposits made after the account was opened, retention of the passbook and declarations by the surviving joint tenant after the account was created. The court concluded that all of such factors are evidence of the intent of the deceased joint owner in creating a joint account.

In many cases which have been considered, it was established that the joint account was opened strictly for convenience of writing checks by both parties, or in obtaining money if the real owner of the joint account was incapacitated (In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445; Dixon Nat. Bank v. Morris, 33 Ill2d 156, 210 NE2d 505; In re Estate of Weaver, 75 Ill App2d 227, 220 NE2d 321). In such cases the court concluded from the evidence that a joint account was created as a convenience for the decedent. In Koziol v. Harris, 82 Ill App2d 472, 226 NE2d 387, a joint account was being considered while both the joint account holders were still alive. The party who did not furnish the money for the account withdrew the money from the account. The court found that there was no donative intent because there was testimony by the party withdrawing the money that “the way I feel it is still his money.” The court found that the person withdrawing was required to account to the one who furnished the money for the account. Cases in which the evidence failed to rebut the presumption of donative intent in setting up a joint tenancy account such as Murgic v. Granite City Trust & Savings Bank, 31 Ill2d 587, 202 NE2d 470, Armstrong v. Daniel, 88 Ill App2d 31, 232 NE2d 218, and Kirkham v. Halford, 83 Ill App2d 300, 227 NE2d 527, involved very little proof to rebut the presumption of a valid joint tenancy.

As a result of an analysis of the cases involving the issue, it becomes apparent that each case must depend upon the facts and the evidence in the cause. In the case before us, it was stipulated that the entire $10,000 deposited belonged to the decedent, Loretta. Mr. Brady of the Credit Union testified as to events when the account was opened and it is clear from the record that Mr. Brady first suggested a joint account “because it made it easier to dispose of the money” in the account. It was only following that statement that Loretta asked Janie to sign the card. There was no showing of any statement by Loretta when the card was signed or at any time thereafter that Loretta wished the account to pass over to Janie at her death. She made no comment at the time the card was read. The evidence indicates that the Credit Union was selected because the interest rate was higher. Janie worked for General Electric and there was testimony that Loretta thought that Janie had to he involved in the account in some way in order for Loretta to open the account. There was no evidence that Loretta understood that she could have had the account in her individual name since she had been accepted as a member. Evidence which would have developed this issue was objected to and excluded. It was also shown that when a withdrawal was made from the account, Janie requested the check for $710.83 be made directly to Loretta. Janie testified that she regarded the money in the Credit Union account as “ma’s money” and that it was left on deposit to accumulate interest. She also testified that she didn’t want any of “ma’s money” because it would cause trouble. She also admitted that she had told certain of the heirs that she would divide the Credit Union money among the children of Loretta after she obtained it. All of such statements by Janie were evidence of the fact that she did not consider this Credit Union account as her account after Loretta died and this corroborated the court’s finding that Loretta had no donative intent when she set up the account.

Elwin Dawson, a son of Loretta Dawson, testified that Janie told him on July 4, 1962, that Loretta had put $10,000 in the Credit Union and that the reason it was put there was to draw more interest “for the kids.” He also testified that Janie said she cosigned for Loretta only because she worked at General Electric and nobody could deposit money there unless the depositor was an employee. Janie denied this conversation. Ethel Dawson, Elwin’s wife, also testified as to statements by Janie that her name was on the account because she worked there and her name on the account really didn’t mean a thing. Edward Dawson, another son of Loretta, testified that Janie told him the money was deposited in the Credit Union to draw more interest “for the kids.” Gail Babcock, a girl friend of Edward, testified as to a conversation with Loretta (the decedent), where Loretta said the money was in the Credit Union where it drew more interest and “the more interest it gets, the better it will be, because it is for my kids.” One of the sons of Loretta also testified that Janie had told him that she was advised not to put the joint account proceeds into the estate as it would increase court costs, so Janie was going to wait until the estate was closed and then she was going to draw it out and divide it. All of such statements were denied by Janie.

Under the circumstances, the trial judge had the problem of determining the weight and credibility of the conflicting testimony. He heard the witnesses and observed their demeanor. Considering all of the testimony to which we have referred in the course of this opinion, it is apparent that the trial court did not err in finding that clear and convincing evidence had been presented to rebut the presumption of a donative intent. Such clear and convincing evidence is that quantum of proof which leaves no reasonable doubt in the mind of the trier of fact of the truth of the fact in issue (In re Estate of Weaver, 75 Ill App2d 227, 220 NE2d 321).

Since we find no reversible error in the record, the judgment order of the Circuit Court of Whiteside County will, therefore, be affirmed.

Appellee has moved that the cost of the additional abstract of record supplied by appellees be assessed as against appellant individually and not as Executor of the Estate of Loretta C. Dawson. Upon consideration of such motion, we have determined that the cost thereof should not be taxed as against Janie S. Dawson individually but only as against Janie S. Dawson as Executor of the Estate of Loretta C. Dawson. The cost thereof is, therefore, assessed solely as against Janie S. Dawson as Executor of the Estate of Loretta C. Dawson.

Judgment affirmed.

STOUDER and CULBERTSON, JJ., concur.


author: MR. JUSTICE MORAN

text:
    Robert J. Bauscher, Plaintiff-Appellant, v. City of Freeport, a Municipal Corporation, and Robert L. Kintzel, Defendants-Appellees.
    Gen. No. 68-104.
    Second District.
    December 17, 1968.

      Nettles and Mahoney, of Freeport, for appellant.
    Robert J. Schmelzle, Corporation Counsel, of Freeport, and Richard F. Eckert, City Attorney, of Freeport, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, Robert J. Bauscher, filed a complaint against the defendants, City of Freeport, a municipal corporation and Robert L. Kintzel, public engineer for the City. A motion to dismiss was filed, heard and allowed. The plaintiff elected to stand on his complaint and, therefore, appeals from the order dismissing the complaint as being substantially insufficient in law.

The body of the one-count complaint, consisting of nine paragraphs, relates that the plaintiff owned certain realty in the City of Freeport upon which, for a period of eight years, he maintained a barbed wire enclosure for the keeping of certain horses; that the city enacted an ordinance regulating the use of barbed wire (a copy of the ordinance being attached to the complaint); that certain conversations and communications were had between the plaintiff and the mayor, city engineer and other officials of the city regarding the maintaining of such barbed wire enclosure; that in these conversations the plaintiff stated that he did not feel that the ordinance applied to his barbed wire enclosure; that he did not feel the city had the right to regulate his longstanding use of such enclosure ; that others were maintaining sections of barbed wire; that the city had no intention of enforcing the ordinance against them; that the defendant, Robert L. Kintzel, agent and public engineer of the city, without notice, filed a complaint against him (a copy of the complaint being attached to the complaint); that a warrant was issued for his arrest; that he was arrested, fingerprinted and photographed and restrained until released upon bond; that as a result he was deprived of his liberty and property without due process of law, denied equal protection under the laws in violation of his constitutional rights and civil rights; that the defendants knew the ordinance was invalid and intentionally and deliberately violated his civil rights and property rights; that the ordinance is void and constitutes taking of plaintiff’s property without compensation; that the value of the property taken by the defendants is $100,000; that the plaintiff was further damaged in his business by the adverse publicity from the outrageous conduct of the defendants in the amount of $300,000 and that the conduct of the defendants was intentional, deliberate and outrageous, the type of conduct that the law should discourage and for which the defendant (probably means plaintiff) should have a remedy under article II, section 19 of the Illinois Constitution.

The prayer for relief demands judgment against defendants in the sum of $100,000 for damage to his property; for an additional sum of $300,000 for damage to his business and to his reputation; and the additional sum of $1,000,000 as punitive damages for depriving him of his civil rights and for the outrageous, intentional, unconstitutional conduct set forth above, together with costs.

The plaintiff in his brief states that the complaint was inartfully and hurriedly drawn, but, nevertheless, stated a cause of action and therefore should not have been dismissed. On the other hand, the defendants claim that the complaint is substantially insufficient in law because (1) the corporate defendant was performing a governmental function for which there is immunity for tort liability and (2) the individual defendant, as an employee of a municipal corporation engaged in a governmental function, was exercising discretionary and quasi-judicial powers for which there is immunity from tort liability.

The trial court filed a memorandum of decision which basically relied upon the various sections of the Local Governmental and Governmental Employees Tort Immunity Act (Ill Rev Stats 1967, c 85, § 1-101 et seq.) in reaching its conclusion. However, it makes no difference what led to the conclusion that the complaint should be dismissed, as the order may be sustained on any basis found in the record. Chicago Title & Trust Co. v. Schwartz, 339 Ill 184, 196, 171 NE 169 (1930); Barrett v. City of Chicago, 11 Ill App2d 146, 159, 136 NE2d 564 (1956).

It is true that the Civil Practice Act put an end to the former common-law practice of pleadings, as it pertained to procedure; however, it did not abolish the substantive law upon which remedies are based. As a matter of fact, section 31 of the Act expressly states that it “. . . does not affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity.” (Ill Rev Stats 1967, c 110, § 31); See, Committee Comments, Ill Anno Stats 110, § 31, 355-356. In Moulopoulos v. Northern Trust Co., 384 Ill 41, 50 NE2d 737 (1943) the Court, in referring to this particular portion of the statute, emphasized its importance when, at page 46, it was stated:

“(W)e must not lose sight of the most important rule and one which should always be kept in mind as provided by the Civil Practice Act . . . .”

and then went on to quote that part of section 31 set forth above.

While pleadings are to be liberally construed, and formal or technical allegations are unnecessary, still the complaint must allege facts necessary to state a cause of action. Fanning v. LeMay, 38 Ill2d 209, 211, 230 NE2d 182 (1967) and it is a fundamental rule that the test of the sufficiency of a complaint is whether or not necessary elements or essentials of a cause of action are alleged. Williams v. Rock River Savings & Loan Ass’n, 51 Ill App 2d 5, 13, 200 NE2d 848 (1964). The failure to state a cause of action cannot be cured by alleging that the plaintiff should have a remedy as provided in section 19 of article II of our Constitution. Constitutional rights cannot be infringed where an insufficient complaint is dismissed. Belmar Drive-In Theatre Co. v. Illinois State Highway Commission, 34 Ill2d 544, 551, 216 NE2d 788 (1966); Deasey v. City of Chicago, 412 Ill 151, 155, 105 NE2d 727 (1952).

The complaint before us does not state any cause of action of which we are aware, but rather states conclusions that the plaintiff would like the trier of facts to reach after a trial on the merits. Causes of action arise out of facts and when they are based upon a wilful tort they should allege, with particularity, the facts giving rise to the claim. DeVito v. Village of Elburn, 37 Ill App 2d 59, 63-65,184 NE2d 890 (1962).

Dismissal of the complaint filed herein was proper and therefore the judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: ME. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jesse E. Bolden, Defendant-Appellant.
    Gen. No. 51,376.
    First District, Second Division.
    December 17, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, and Clare Hillyard, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE LYONS

delivered the opinion of the court.

The defendant, Jesse E. Bolden, was indicted for murder. In a jury trial, he was convicted of involuntary manslaughter. After his motions in arrest of judgment and for a new trial were denied, judgment was entered and he was sentenced to not less than five nor more than ten years in the Illinois State Penitentiary. He appeals.

In the view which we take of this case, it becomes unnecessary for us to set out the evidence in complete detail. It is undisputed in this record that the deceased, Walter Speedy III, died from the infliction of a single stab wound and that the defendant was holding the drawn knife which inflicted the mortal wound. In dispute at the trial was whether the homicide was caused by the defendant intentionally or recklessly stabbing at the deceased during a game of “tough” between the two (i. e., fencing with knives), or whether the deceased, in accidentally falling down some stairs during this game of “tough,” fell upon an upraised knife which was held by the defendant at the time.

Depending upon which version of the facts the jury found to be most credible, there is sufficient evidence in this record to support its.verdict for either murder or involuntary manslaughter as urged by the State at the trial, or for excusable homicide by misadventure or accident as contended by the accused. However, because of an erroneous and prejudicial jury instruction which failed to give a complete definition of involuntary manslaughter in the language of the statute and which instruction was tendered by the prosecution and given by the court over the objection of the defendant, the judgment must be reversed and the cause remanded for a new trial.

The instruction given by the court was as follows: “The Court instructs the jury, in the language of the statute, that a person who kills an individual without lawful justification, commits involuntary manslaughter if his acts, whether lawful or unlawful, which cause the death, are such as are likely to cause death or great bodily harm to some individual.” The court gave this instruction, which purported to define the offense of involuntary manslaughter in the language of the statute, Ill Rev Stats (1965), c 38, § 9-3(a), after it had given other instructions offered by the State which defined the statutory offense of murder and which stated that the jury could convict the defendant of a lesser included offense, if there was sufficient evidence upon which to base such a finding.

The instruction, as given, was erroneous in that it omitted the statutory criminal intent or mental state explicitly found in chapter 38, § 9-3 (a), which, along with the prohibited criminal act, must concur to support a conviction for involuntary manslaughter. We refer specifically, to the concluding portion of chapter 38, § 9-3 (a) wherein it states: “. . . and he performs them (the criminal acts) recklessly.” Additionally, the jury was not instructed regarding the statutory definition of “recklessness” as found in our Criminal Code, Ill Rev Stats (1965), c 38, § 4-6. However, “involuntary manslaughter is an offense which happens without the intent to inflict injury and death results from acts performed recklessly.” People v. Johnson, 54 Ill App2d 27, 36, 203 NE2d 283, 288 (1964). Furthermore, “(t)he gist of the offense of involuntary manslaughter is the reckless performance of an act likely to cause death.” People v. Post, 78 Ill App 2d 121, 128, 223 NE2d 238, 241 (1966).

The State concedes error in the giving of this instruction, but urges that it was harmless error in that the defendant was proven guilty of involuntary manslaughter beyond a reasonable doubt. In support of this contention, the State principally relies upon People v. Cash, 326 Ill 104, 157 NE 76 (1927), and People v. Rongetti, 344 Ill 107, 176 NE 292 (1931). In Cash, our Supreme Court said that the insertion of additional words in a jury-instruction, tendered by the prosecution and given by the court, which purported to define the offense of involuntary manslaughter in the language of the then statute did not require reversal in that the words interpolated, not found in the statute, did not affect the meaning of the statute and therefore did not prejudice the accused. However, the case at bar involves not surplusage or interpolation but rather the omission of an explicit statutory provision which is an essential element of involuntary manslaughter—the particular mental state.

In Rongetti, our Supreme Court said that even where an entire instruction should not have been given, there is no ground for reversal where it is of such a nature as not to cause injury to the defendant. In the case at bar, the instruction as to involuntary manslaughter should have been and was given because some of the evidence at the trial would support a conviction for this lesser degree of homicide, but the instruction as given caused injury to the accused because any reference to the particular concurring criminal intent required by the statute was omitted. It is possible that in this posture of the case, the jury convicted the accused for the commission of the criminal act only and never considered his mental state at the time of the offense, although involuntary manslaughter, by statute, requires the concurrence of both the criminal act and the particular mental state of recklessness. Hence, the principal cases cited by the prosecution are not persuasive.

We are of the opinion that an apt quotation from the case of Bird v. United States, 180 US 356, 361, 21 S Ct 403, 405 (1901), in which our highest reviewing court reversed and remanded a murder conviction because of incomplete jury instructions, is applicable to the facts of this case:

“It is well settled that the defendant has a right to a full statement of the law from the court, and that a neglect to give such full statement, when the jury consequently fall into error, is sufficient reason for reversal. . . . The chief object contemplated in the charge of the judge is to explain the law of the case, to point out the essentials to be proved on the one side and the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.”

In People v. Gambony, 402 Ill 74, 81, 83 NE2d 321, 325 (1948), the court stated:

“. . . The sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it in order that, having determined the final state of facts from the evidence, the jury may, by the application of proper legal principles, arrive at a correct conclusion according to the law and the evidence. . . .”

In our opinion, the failure of the jury instructions in this case to mention and define the particular mental state, i. e., recklessness, which is one of the essential elements of statutory involuntary manslaughter in our State, was prejudicial error and deprived the defendant of a fair trial. The issue of the defendant’s concurring criminal recklessness or lack of it, in the commission of this alleged criminal act was never presented to the jury in any of the instructions given by the court.

The constitutional protection of former jeopardy remains to be briefly discussed within the facts of the instant case. It is established law in Illinois that when an accused is indicted and tried for murder, convicted of manslaughter, and this latter conviction is reversed and remanded on direct appeal, former jeopardy requires that the defendant can only be retried for manslaughter, the lesser degree of homicide. People v. McGinnis, 234 Ill 68, 84 NE 687 (1908). For a recent United States Supreme Court case coming to the same conclusion on former jeopardy grounds where a defendant was indicted and tried in a District of Columbia trial court for murder and was convicted of a lower degree of homicide, which conviction was reversed and remanded on direct appeal, see Green v. United States, 355 US 184, 78 S Ct 221 (1957).

The same protection of former jeopardy exists in Illinois if the accused is indicted and tried for murder, convicted of manslaughter, and instead of gaining a reversal and remandment on direct appeal, he is successful in his motion for a new trial presented to the trial judge. The defendant can then only be retried for manslaughter. Brennan v. People, 15 Ill 511 (1854); People v. Carrico, 310 Ill 543, 142 NE 164 (1923). On the retrial of the case at bar, the defendant can only be tried for involuntary manslaughter and not for murder.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

BURKE, P. J. and McNAMARA, J., concur.