author: MR. PRESIDING JUSTICE CRAVEN

text:
    James P. Stanton, Plaintiff-Appellant, v. Donald L. Johnson, Defendant-Appellee, and Ronald H. Coleman, Defendant.
    Gen. No. 53,405.
    First District.
    June 26, 1970.

      Reidy, Gross and Dee, and Jurco, Damisch and Sinson, of Chicago (James R. Mitchell and Loretta C. Didzerekis, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The plaintiff, James P. Stanton, filed an action for personal injuries arising out of a collision on the Tri-State Tollway in July of 1965. Donald L. Johnson was named a defendant in a count charging willful and wanton conduct and another defendant, Ronald H. Coleman, was named in an ordinary negligence count. The trial court, on motion of Johnson, entered summary judgment for him and this appeal is from the final judgment thus entered. The action below against Coleman is not affected by this appeal. No findings of fact or conclusions of law were made by the trial court.

The facts and circumstances surrounding the plaintiffs injuries are ascertainable from the pleadings, the affidavits in support of the motion for summary judgment and certain discovery depositions made a part of the record in support of the motion.

Plaintiff and defendant Johnson are both residents of the State of Indiana. Both were employed by an Indiana corporation, Quality Builders, Inc., of which Johnson is secretary-treasurer and foreman of a construction crew which included Stanton and other employees. Quality Builders undertook to construct some poultry houses for Hawthorne Melody Farms at or near Libertyville, Illinois. Both the plaintiff and Johnson, together with three other employees of Quality Builders, were engaged in the construction work on these poultry houses and all of this group of employees traveled from Indiana to Illinois in a van driven by the defendant, starting out on a Sunday afternoon, arriving at the Libertyville destination early that evening, and beginning work on a Monday. All of the employees stayed at a motel near Libertyville until the following Friday and then would return home. The van, owned by the defendant Johnson and his wife, was equipped with only two seats in front and the other three passengers would ride sitting in lawn chairs or on tool boxes in the back of the van.

On the occasion of the injury the employees had worked on Friday, then had gone to the motel to clean up and check out, and during the work and at the motel they had consumed some beer. They then started the trip back to Shelbyville, Indiana. While on the TriState Tollway, at a point near Hinsdale, the defendant Johnson lost control of the vehicle, swerved across the grass median strip dividing the north and southbound lanes, and collided head-on with the car driven by the defendant Coleman, which was traveling in a northerly direction. Plaintiff, who was in the back of the van, was thrown from the rear of the van onto its motor and suffered severe injuries to his spinal cord and was permanently paralyzed.

The gasoline, oil and maintenance of the vehicle driven by Johnson were paid for by Quality Builders and the record rather clearly establishes that it was at least understood by the employees and Johnson that he (Johnson) furnish transportation to the employees in connection with the necessary trips to Libertyville, Illinois.

Following the injury, the plaintiff applied for Workmen’s Compensation benefits with the Industrial Board of Indiana and ultimately entered into an agreement with the insurance carrier for Quality Builders, Inc., to accept certain specified benefits in the nature of disability payments and medical expenses. This agreement was approved by the Industrial Board of Indiana in August of 1965 and the record establishes that the plaintiff has received and accepted some $28,000 pursuant to this agreement.

The motion for summary judgment also establishes that the plaintiff has also filed a claim in Illinois with the Industrial Commission, seeking benefits under the applicable Illinois act, and in that application for adjustment of claim alleged that he was an employee of Quality Builders at the time of the occurrence. The disposition of that claim is not established.

The motion for summary judgment asserted that both the plaintiff and the defendant were employees of Quality Builders and that at the time of the accident Johnson was acting in behalf of Quality Builders in transporting employees from the jobsite to their respective homes, and that the exclusive remedy provisions of both the Illinois and Indiana laws applicable to Workmen’s Compensation operate to bar this common-law remedy.

The trial court necessarily so held when it allowed the motion for summary judgment.

Section 5 of the Illinois Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, par 138.5), so far as is relevant, provides:

“. . . (a) No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, ... to any one wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury.”
(Footnote omitted.)

The Indiana act provides in relevant part as follows:

“. . . 40-1206 — Rights and remedies of employee under this act exclusive. The rights and remedies herein granted to an employee subject to this act ... on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death.”

Both the Illinois and Indiana statutes have, in addition, provisions the effect of which is to exclude from automatic coverage employment or operations done, had or conducted by farmers and others engaged in farming.

We turn first to the question of the extraterritorial application of the exclusive remedy provision of the Indiana Workmen’s Compensation Act. We have not found, nor have counsel cited, any Indiana decisions specifically on this point. However, we are referred in the brief to Small’s work on the Workmen’s Compensation Law of Indiana (1950), p 37, where the text makes the assertion that the Indiana act was not intended to have effect in other states. In making this assertion, after discussing certain cases, this work, as quoted in the brief, states:

“Indiana’s exclusive remedy provision is found in Section 6 (Burns, . . . [sec] 40-1206, making the compensation remedy exclude ‘all other rights and remedies ... at common law or otherwise.) ’ To date, this section has never been considered by the Indiana courts in an extra-territorial connection. However, the fact that it has been repeatedly held to exclude other Indiana remedies at common law, under the wrongful death statute, and under the Employers’ Liability Act would make it appear clearly that it was intended to affect only Indiana remedies.”

In Witherspoon v. Salm, 237 NE2d 116, revd, 243 NE2d 876, the Indiana Appellate and Supreme Courts give some indication that the exclusive remedy provision may have some extraterritorial effect. Nevertheless, in the context of the facts in Witherspoon, the specific holding was that the Indiana statute would bar an action in Indiana where the situs of the injury was in Kentucky.

In Gilpin v. Lev, 70 Ill App2d 66, 217 NE2d 477, (1st Dist 1966), the court held that an exclusive remedy provision of the Kentucky Workmen’s Compensation Act would not be interpreted as a matter of law to take away common-law rights of the plaintiff but proceeded to observe that the application of the Kentucky act to the facts in that case was a question of fact.

In Cole v. Industrial Commission, 353 Ill 415, 187 NE 520, 90 ALR 116 (1933), our Supreme Court held that the exclusive remedy provision of the Indiana law to which the employer and employee were subject was operative to preclude an application for compensation under the Illinois act when the injury occurred in Illinois. The court, in Cole, was speaking of an action between the employer and the employee and relied upon the case of Bradford Elec. Light Co. v. Clapper, 286 US 145. The appellant argues here that the holding in Bradford has, in effect, been overruled by the case of Carroll v. Lanza, 349 US 408, 99 L Ed 1183, 75 S Ct 804 (1955). Our Supreme Court in McClain Dray Lines v. Industrial Commission (appeal of Long), 41 Ill2d 554, 244 NE2d 169 (1969), expressly found it unnecessary to reexamine the holding in Cole and observed (at 558 (244 NE2d at 171)):

. . To be specific, we consider it to be unnecessary to judge whether this court’s judgment in Cole has been invalidated by the Supreme Court’s decisions in Pacific Employers Insurance Co. v. Industrial Accident Com. (1939), 306 US 493, 83 L Ed 940, 59 S Ct 629; Carroll v. Lanza (1955), 349 US 408, 99 L Ed 1183, 75 S Ct 804. See also, Industrial Com. [of Wisconsin] v. McCartin (1947), 330 US 622, 627, 628, 91 L Ed 1140, 1143, 1144 [67 SCt 886].”

In the McClain case, however, the court held that the Illinois Workmen’s Compensation Act would not be applicable to a claim by an Indiana resident against an Indiana employer for injuries sustained in Illinois where the employee’s Illinois contact was merely transitory. The court did not predicate its holding upon the application of the exclusive remedy provision of the Indiana act.

As we have observed, the issue here is somewhat different from the issue in Cole and the specific holding in Cole was that the Indiana exclusive remedy provision would bar an employee from access to the Workmen’s Compensation remedy in Illinois against his employer.

In Cole, however, the court placed less emphasis on the extraterritorial effect of the Indiana statute than upon “The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State . . . .” (353 Ill at 419.) Thus, we view the Cole case as requiring this court to give recognition to the fact that the parties have subjected themselves to the Indiana act, that they have accepted either the benefits or burdens of that act, and in the context of this observation we note that both the Illinois and Indiana acts, as quoted, preclude an injury action as against a coemployee when the injury arises out of and in the course of the employment and when compensation is available therefor under the act.

As to the assertion that neither the Indiana nor the Illinois act can be applicable to the facts of this case by reason of the agricultural exemption, we note that the award in Indiana must necessarily have been predicated upon the finding, explicit or implicit, that the agricultural exemption was not applicable. Further, the case of Heffner v. White, 113 Ind App 296, 45 NE2d 342 (1942), clearly establishes that a construction worker who comes on a farm for purposes of performing his construction work does not thereby become a farm worker.

We next turn to the issue of the applicability of the Illinois act. In this context we note the filing of an application for adjustment of claim in Illinois but no further proceedings here. In Arnold v. Industrial Commission, 21 Ill2d 57, 171 NE2d 26 (1961), the court held that an Alabama resident who suffered an injury while driving a truck in Illinois for his employer whose place of business was in Alabama and where no contract of employment was made in Illinois, could not proceed under the Illinois Workmen’s Compensation Act. That holding was specifically reiterated in the McClain Dray Lines case. As we view this record, there has been no determination of the applicability of the Illinois act to this fact situation either in the circuit court or before the Industrial Commission. In view of our interpretation of the holding in Cole, furthermore, such inquiry here would be academic. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Exchange National Bank of Chicago, as Trustee Under Trust Agreement Dated December 15, 1964, and Known as Trust No. 17988, Plaintiff-Appellant, v. City of Des Plaines, a Municipal Corporation, Defendant-Appellee, and Church of the Master—United Church of Christ, et al., Intervenors-Appellees.
    Gen. No. 53,807.
    First District.
    June 26, 1970.

      Maurice J. Nathanson and Frank Martoccio, of Chicago (Paul Peter Black, of counsel), for appellant.
    Di Leonardi, Hofert and Samuelson, of Des Plaines (Robert J. Di Leonardi, of counsel), for defendant-appellee.
    Moriarty, Rose, Faccenda and Hultquist, of Chicago (Donald M. Rose, of counsel), for intervenors-appellees.
   ALLOY, J.

The action in the instant case was filed as a declaratory judgment suit to challenge the validity of a single-family zoning of the property of plaintiff Exchange National Bank of Chicago as trustee under a certain trust under the zoning ordinance of the City of Des Plaines. In determining the cause, the propriety of the existing zoning was not determined by the trial court, but the court entered judgment against plaintiff on the collateral issue involving the existence of a subdivision restriction. An appeal is taken to this court from orders which held the restriction valid and binding on the plaintiff.

The record disclosed that plaintiff owned Lots 11, 12, and 13 in a subdivision known as A. T. McIntosh & Co.’s Des Plaines Acres in Cook County, Illinois. There are a total of 25 lots in the subdivision. Plaintiff desired to have the property rezoned and when all rezoning attempts failed, it filed a declaratory judgment action to declare the Des Plaines zoning ordinance invalid as applied to the three lots. The lots were zoned as R-2 (single-family residential). It was alleged in the complaint that plaintiff desired to use the lots for commercial display in the sale of model vacation homes. It was shown in the complaint that the property adjoining the lots on the west is occupied by a drive-in restaurant and a gas station, and that to the east of the lots there is a church and a residence type of property used by the church. On the north and south of the lots are two well-traveled roads, both of which are used for business traffic. The property just west of plaintiff’s lots is outside Cook County, but plaintiff alleged that its lots took on the character of the business triangle just to the south of the lots. There were the usual contentions as to the highest and best use of the property and that the zoning restriction had no relation to health, safety and welfare. A declaration was sought to the effect that the zoning ordinance restriction, as applied to the lots of plaintiff, was invalid.

In its answer, the City of Des Plaines denied the allegations of the complaint and set forth that when the plat of the subdivision was filed in 1938, it contained a restriction that only single-family residences could be put on any of the 25 lots. The trial court allowed several property owners in the subdivision, including the church just east of plaintiff’s lots, to intervene. These intervenors adopted the answer of the City of Des Plaines and also counterclaimed for declaratory judgment declaring that the use restrictions set forth for the subdivision were valid and enforceable as applied to plaintiff’s lots. In the counterclaim, an injunction was also requested restraining plaintiff from using the lots for anything other than single-family residences. Plaintiff replied to the allegations of the intervenors and the city, by pointing out that there was a written agreement between some of the lot owners in the subdivision and the church, which provided that all covenants, agreements, conditions, reservations, restrictions, and charges established in any way prohibiting or preventing the construction, use and maintenance of buildings other than private residences or single-family dwellings on Lots 9 and 10 inclusive in the subdivision, were expressly abrogated and declared null and void as though the same had never been created. The agreement was signed by the owners of 13 of the 25 lots in the subdivision. Plaintiff did not sign the agreement. It is plaintiff’s contention that the agreement “abrogated, terminated and nullified” all of the restrictions in regard to the subdivision and the use which could be made of the lots.

When the parties appeared for a hearing before the court, the attorney for the plaintiff suggested that the court first proceed on the counterclaim filed by inter-venors which requested a declaratory judgment that the plat restriction was still binding upon plaintiff. The parties therefore stipulated that plaintiff took title to the lots with notice of the recorded restriction; that the intervenors took title to their lots in reliance upon a continued enforcement of the restrictions and desired that the restriction be maintained; that the entire subdivision of 25 lots is developed with single-family homes except for the church lots and the 3 lots of plaintiff. It was also stipulated that the 1961 agreement referred to was signed by a majority of the lot owners, and that pursuant to the 1961 agreement a church was constructed on Lots 9 and 10 and continues to be used for a church. It was also stipulated that the City of Des Plaines allows churches in single-family residence districts.

Section 7A.3 of the Des Plaines Zoning Ordinance was read into the record. It provided that the zoning ordinance was not intended to abrogate any easement, covenant or other private agreement and also provided that where the regulations of the ordinance are more restrictive than the easements, covenants or other private agreements, the requirement of the zoning ordinance shall govern. Following argument on the issues, with no evidence other than the preliminary oral stipulation being presented, the trial court entered an order on October 22, 1968, which provided: “Now, therefore, it is ordered, adjudged and decreed that the intervenors, Church of the Master — United Church of Christ, et al., are hereby granted the relief prayed for in their counterclaim and the court hereby declares that the restriction contained in the plat . . . providing that all the lots in the subdivision are subject to the restriction that all buildings erected on such lots shall be single-family residences only is a valid and enforceable restriction and the plaintiff, its agents, servants, successors, grantees and assigns are enjoined from using the property . . . for any purpose other than that permitted by the restriction.”

Following the entry of such order, the City of Des Plaines moved to have the plaintiff’s first amended complaint dismissed. Plaintiff moved to set aside the judgment order of October 22, 1968. The trial court entered an order denying plaintiff’s motion to vacate and then entered an order dismissing plaintiff’s first amended complaint against the City of Des Plaines with prejudice. The dismissal was based upon the previous order of the court which determined that the private restriction was valid and that plaintiff could only use its property for single-family residence purposes, and that, therefore, there was nothing left to litigate between the plaintiff and the City of Des Plaines.

The important issue in the cause before us is whether the trial court conducted a proper hearing on interveners’ counterclaim, which requested a determination of the effect of the building restriction, as applied to the plaintiff’s lots. This issue is required to be determined in light of the fact that Illinois restrictive covenants are not favored and their enforcement for years has rested in the chancery court, with emphasis on the equities involved in the cause. As has been noted in numerous cases in Illinois, the courts will not enforce restrictive building covenants when there has been such a change in the character or environment of the property involved, that either the purpose of the restriction is no longer aided by enforcement of the restriction, or if it would amount to an unreasonable hardship on the property owner to enforce such restriction. In light of such rule of law, plaintiff was entitled to present evidence, at the hearing on the counterclaim to enforce the restriction, showing any changes in the character and environment of the area. The failure of the trial judge to permit the introduction of such evidence was clearly erroneous and the cause should be remanded to permit a full hearing on the questions presented. In such hearing the trial court should permit evidence relating to the question of the enforceability of the restriction at this time, and, in the event that the trial court finds that such restriction is now a nullity, the court should then hear evidence on the declaratory judgment request as to the effect of the City of Des Plaines zoning ordinance.

It has long been the established rule in the State of Illinois that restrictive covenants in deeds will not be automatically enforced by the court. As early as 1896, the Illinois courts began to look for ways to avoid the application of deed restrictions when equities were with the property owner who was hampered by such restrictions. In Ewertsen v. Gerstenberg, 186 Ill 344, 57 NE 1051, the court quotes the general rule (at 349-50):

“Equity will not, as a rule, enforce a restriction, where, by the acts of the grantor who imposed it or of those who derived title under him, the property, and that in the vicinage, has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant the relief would be a great hardship on the owner and of no benefit to the complainant, or where the complainant has waived or abandoned the restriction, — or, in short, it may be said that where, from all of the evidence, it appears that it would be against equity to enforce the restriction by injunction relief will be denied, and the party seeking its enforcement will be left to whatever remedy he may have at law.”

In Piper v. Reder, 44 Ill App2d 431, 195 NE2d 224, the court in citing Ewertsen v. Gerstenberg, said (at 436):

“Restrictive covenants respecting buildings will not be enforced where there has been such a change in the character and environment of the property that either the objective of the restrictions cannot be accomplished by their enforcement, or if by such change it would be unreasonable or oppressive to enforce them.”

As stated in Wallace v. Hoffman, 336 Ill App 545, 84 NE2d 654, at 554:

“The law is well settled that even where a general plan is shown the restrictions under the plan will not be enforced where violations have been acquiesced in (McGovern v. Brown, 317 Ill 73; Curtis v. Rubin, 244 Ill 88; Restatement, Property, § 561) or where the character of the neighborhood has so changed since the restrictions were imposed as to defeat the original purpose of the plan (Ewertsen v. Gerstenberg, 186 Ill 344).”

In the Wallace v. Hoffman case, the court had further commentary on the doctrine of acquiescence on page 555 where it says:

“The doctrine of acquiescence which will make unenforceable an otherwise valid plan of restriction is not based on rudimentary eye-for-eye notions of equity, but upon the proposition that tolerated violations of the restriction will, over the course of time, defeat the object of the restriction.”

In the Wallace v. Hoffman case, it was recognized that in determining the character of the neighborhood which may have changed since the restriction was made, it was proper to consider zoning changes in the area also. The court there stated that while it was clear that a zoning ordinance would not invalidate an otherwise enforceable restriction, it was one factor which could be considered in showing a change in the character of the area.

At the conclusion of the discussion as to whether the construction of the church itself and the abrogation agreement of 1961 nullified the deed restriction, the trial judge stated: “If you want me to give you a decision now, I would hold that the church does not open it up and it maintains a character of the neighborhood and the restrictive covenant is still applicable.” Plaintiff then attempted to introduce other evidence of changes in the character and environment of the neighborhood such as the drive-in restaurant next to plaintiff’s lot on the west, but the court refused to hear such evidence and decided in favor of the intervenors on their counterclaim. It is clear from the record that in agreeing to the stipulations as to the construction of the church and the abrogation agreement in 1961, plaintiff was not agreeing that these were the only matters of evidence affecting the decision on intervenors’ counterclaim. Plaintiff indicated a desire to present other evidence with respect to the change in the character and environment of the area where the lots were located. On the basis of such cases as Ewertsen, Wallace, and Piper referred to in this opinion, plaintiff had the right to present such evidence. It is disclosed that plaintiff wished to present evidence to show a commercial development on virtually all sides of its lots. It also wished to present evidence of zoning changes in the area of the lots in question which it had the right to do. Zoning changes, allowing commercial development in the area of the plaintiff’s lots would not automatically nullify the deed restriction, but were factors which should be considered. Plaintiff also desired to present evidence showing how construction of the church physically separated its lots from the rest of the subdivision causing the lots to take on the character of the commercial development to the west of such lots and lose the character of the rest of the lots in the subdivision. With a drive-in restaurant adjoining its lots on the west and a gas station adjoining the restaurant, plaintiff wished to show that the development of a large shopping center in the area would certainly affect plaintiff’s position, particularly if the restrictions allowed only a theoretical use which could not be implemented practically. Plaintiff also desired to show the development of a large shopping center in the area as evidence of the change in the character and that there were no single-family residences built in the area in the last 20 years. All of these matters were set forth in plaintiff’s motion to set aside the judgment order.

On the basis of the record, therefore, it is clear that the trial court erred in refusing to permit plaintiff to make such showing as it could of any material change in the character of the area which could operate to nullify the restriction.

An issue which confronted the court, would be required to be considered in this cause upon remandment, was whether the construction of the church, or the making of the abrogation agreement or a combination of the factors nullified the building restriction as a matter of law. We do not believe it is necessary to determine this issue since existence of the church together with the 1961 abrogation agreement, and the fact that those lot owners who did not sign such agreement may have acquiesced in such violation by failing to bring any action against the church, were all matters which could be considered in determining if the restriction has been nullified. This would still require the determination by the court of a question of fact to be resolved after consideration of all the circumstances and evidence of any changes in the neighborhood.

Another issue presented was whether it was proper for the intervenors to request enforcement of the deed restriction, since some of the intervenors signed the 1961 abrogation agreement and one of the intervenors was the church itself. We do not believe that the interveners would be estopped from advancing their contentions with respect to the restriction issue. It appears that the issue of the right of interveners to raise the question of the validity of the building restriction was not raised in the trial court and cannot be raised for the first time on appeal. While it is true that violators of a restriction cannot come into equity and seek enforcement of such restriction (Curtis v. Rubin, 244 Ill 88, 91 NE 84; McGovern v. Brown, 317 Ill 73, 147 NE 664), ordinarily, one who merely signs an abrogation agreement, is not actually a violator of the restriction.

Another issue which was raised was whether the appeal was correctly prosecuted by the plaintiff in this cause. Defendant appellee contends that plaintiff did not properly take an appeal from the order of October 28, 1968, which held the restriction valid. The notice of appeal which was filed by plaintiff on December 20, 1968, stated that plaintiff was appealing from the judgment order of November 27, 1968, wherein the trial court denied plaintiff’s motion to set aside its previous order of October 22, 1968. The notice of appeal also stated that plaintiff was appealing from the order striking the amended complaint. The October 22, 1968, order was not final until the motion to set it aside had been heard and determined by the trial court. The hearing on the motion to vacate the order of October 22 was set for November 27 in the order of October 22. When the motion was denied on November 27, plaintiff thereafter had a 30-day period within which to file its notice of appeal. If plaintiff in the cause before us had attempted to appeal the October 22 order and also file the motion to vacate such order as allowed in the October 22 order, this would have been inconsistent with the October 22 order which allowed plaintiff 30 days to file the motion to vacate. The appeal was, therefore, properly taken.

Since this cause will be remanded for a full hearing on the merits, evidence of zoning changes may be considered together with other evidence of a change, if any, in the character of the area. It is apparent that if the trial court had determined the building restriction to be valid, following a full hearing, which would give plaintiff ample opportunity to present such evidence as it desired, to show any change in the character of the neighborhood, then it would have been appropriate to consider dismissal of plaintiff’s declaratory judgment action. In the event that the building restriction is found inapplicable at this time to plaintiff’s property, then plaintiff should be allowed to present evidence in the declaratory judgment action in an attempt to show that the zoning ordinance is invalid as applied to the particular lots.

In view of the record, this cause will be reversed and remanded to the Circuit Court of Cook County, with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded.

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


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John T. Thomas, Jr. (Impleaded), Defendant-Appellant.
    Gen. No. 54,040.
    First District, Fourth Division.
    June 26, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Mary Cahill, Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Goldstein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Murder. Ill Rev Stats 1967, c 38, § 9-1 (a) (3).

JUDGMENT

After a jury trial, John Thomas (hereinafter defendant) was found guilty of felony murder and sentenced to a term of 20 to 40 years. Coindictee Samuel Robinson had pleaded guilty, and codefendant Jeffery Sykes was found not guilty.

CONTENTIONS RAISED ON APPEAL

1. The evidence is insufficient to establish that the act which caused the victim’s death occurred while defendant was attempting or committing a forcible felony.

2. The jury was incompletely instructed as to the elements of the crime charged in the indictment.

3. Because defendant exercised his constitutional right to be tried by a jury, he was penalized by the imposition of a harsher sentence than he would have received had he pleaded guilty.

EVIDENCE

Joseph Podsiadlik, for the State:

On October 15, 1967, he was in Jack and Gloria’s Tavern at 8701 South Marquette Avenue. He had arrived at 8:00 p. m. and talked and watched television along with another patron, Joe Sloma. At approximately 8:40 p. m., a fellow walked into the tavern and proceeded to the back of the room. The witness thought he was going to the washroom. Then another fellow, identified as defendant, entered and stood near the door. He then heard a bang, looked around, and saw John Benson slumped to the floor. The bang came from the back of the tavern and he heard the first fellow (Robinson) say to defendant, who was still standing at the door, “I got him.” Both men then left, walking fast.

Joseph Sloma, for the State:

He was sitting at the bar in Gloria and Jack’s Tavern when two fellows came in. One (Robinson) stood next to the witness facing the bartender, John Benson. Robinson took a gun out of his pocket and shot Benson. The witness did not know where the other man was at that time. The entire incident took between fifteen and twenty seconds. The two men then left the tavern and he ran out to see if there were any cars. He saw the men heading for a car parked in an alley some forty feet east of the intersection where the tavern is located. They got into the car, one in the front and one in the back, and sped off down the alley. There were empty parking places in front of the tavern.

Louis Walker, for the State:

He is a police officer and on October 15, 1967, at approximately 8:40 p. m., was patrolling in the vicinity of 87th Street and Stony Island in a squad car. Upon receiving two radio communications, he stopped an automobile at 75th and South Chicago Avenue. There were three people in the car: Sykes, who was driving; defendant, who was in the front seat on the passenger side; and Robinson, who was in the back seat. He recovered, from defendant’s rear pocket, a revolver containing two live shells and one spent shell. Another gun was recovered under the front seat of the automobile. It was stipulated that the bullet taken from the body of deceased had been fired by this gun.

Paul Mazzocco, for the State:

On the evening in question, he was sitting on his back porch at 8645 South Marquette watching television. The porch faces an alley. At approximately 8:40 p. m., he noticed an automobile pull into the alley and turn its lights off. About two minutes later he noticed two men who ran down the alley and jumped into the car. With its lights off, the automobile immediately sped away.

Mary Dumas, for the State:

She is the manager of Boyce and Dumas Food and Liquor Store which is located at 8926 Stony Island (about a mile and a half from Jack and Gloria’s Tavern). On October 15, 1967, at approximately 8:15 p. m., two men (whom she identified as defendant and Robinson) entered the store, Robinson asked for a half pint of liquor and some cigarettes. She told him that he would have to go into the liquor section of the store to get them. Robinson then took out a gun just as a young boy walked into the store. Robinson said to the boy, “Hey you! Come here.” The witness ran into the liquor part of the store and started yelling and screaming. When she returned, both men had left.

Neither man said, “I am going to rob you” or “Give me your money,” and Robinson did not point the gun at the witness.

Jeffery Sykes, sole witness for the defense:

Defendant, who was a lifelong friend, and Robinson had been living in his apartment for three weeks prior to October 15, 1967. On that day, the three of them went out for a drink at approximately 7:00 p. m. The witness was driving defendant’s automobile. They stopped at a package store at 75th and Ingleside, and Robinson bought a pint of wine. After a stop at a tavern, defendant said he wanted to take some beer back to the apartment, so they stopped at a lounge, possibly a combination grocery and liquor store, near 87th Street and Stony Island Avenue. Defendant and Robinson got out and, when they returned to the car, there was no more than the usual conversation. Defendant asked the witness to stop again at 87th and Marquette because he wanted to get some beer. There were no parking spaces on the street, so he pulled into an alley and stopped. Robinson and defendant got out and he turned the lights off in the automobile. The two came running back and jumped into the car. Defendant said, “Sam has shot a man.” Witness, up to this point, had not seen a gun, nor had there been any talk of weapons, but he now noticed a .22 revolver in Robinson’s hand. He drove away down the alley, and was stopped by police officers at 76th and South Chicago while waiting at a traffic light.

OPINION

The indictment contained three counts charging murder under the three parts of the statute defining that crime. The first count alleged intentional murder, the second charged murder in the performance of an act known to create a strong probability of death or great bodily harm, and the third charged what has come to be known as “felony murder,” in that the killing occurred while defendant was attempting to commit the forcible felony, robbery. Ill Rev Stats 1967, c 38, §9-1 (a)(1), (2), (3). At the close of the State’s case, defense counsel moved to dismiss the indictment, and the trial judge sustained the motion as to counts one and two. That ruling is not subject to review. Defendant was convicted on the only remaining charge of felony murder.

Defendant initially contends that while the evidence clearly established the killing, it is insufficient to establish that it occurred while defendant, as either principal or accomplice, was attempting to commit robbery. It is conceded that if the evidence established that Robinson and defendant were attempting to commit a robbery and the victim’s death resulted from that attempt, it would be immaterial whether Robinson or defendant fired the shot which caused the death, or whether the killing was intentional or accidental. People v. Danner, 105 Ill App2d 126, 130, 245 NE2d 106; People v. Connolly, 33 Ill2d 128, 210 NE2d 523. It is uncontradicted that defendant entered the tavern with Robinson and that Robinson fired the shot that resulted in the victim’s death. The evidence also demonstrates that both men had entered a nearby store a few minutes before the shooting where Robinson had displayed a weapon. In neither instance, however, was there any evidence of an attempt to commit robbery. No intention to commit robbery was orally communicated to either alleged victim by either defendant or Robinson, nor was any money or property either demanded or taken. The proof showed that Robinson simply walked up to the bar, pointed the gun at the bartender without saying anything, and shot him dead. The only words spoken in the tavern came immediately after the shooting, when Robinson said, “I got him.”

The State urges that it met its burden of proving that defendant was performing an act which constituted a substantial step toward the commission of a robbery. (See the statutory definition of the crime of attempt, Ill Rev Stats 1967, c 38, § 8-4a.) It advances the theory that Robinson intended to rob the bartender; that defendant stationed himself at the door as a lookout; and that they then fled when Robinson lost his self-control and shot the victim. Further evidence of this intention to rob, they urge, is demonstrated by the prior episode in the grocery-liquor store where Robinson had displayed his gun (also without any accompanying demand) .

The State relies on People v. Turner, 108 Ill App2d 132, 246 NE2d 817, where we said, at page 138: “Proof of specific intent to rob is necessary, but competent circumstantial evidence may establish the requisite intent.” Under the circumstances of Turner, the direction to the taxi driver to stop at a place other than the previously announced destination, the production of a gun, and the statement, “This is it,” were considered sufficient evidence of an intent to commit robbery. We believe that those facts are significantly different from those in the instant case.

It can be speculated, or even considered probable, that Robinson — and defendant as his accomplice— intended to rob Mr. Benson, but we cannot say that the evidence established this fact beyond a reasonable doubt. As has been mentioned, there was no declaration of a robbery, and there was no demand for money or goods, nor was there any attempt to remove money or property from the tavern. The State’s apparent attempt to show a pattern of robbery through the testimony about the food and liquor store failed for the same reasons. Defendant’s flight from the tavern adds nothing as an indicator of attempted robbery. Under the sole remaining felony murder count of the indictment, proof of a forcible felony — attempted robbery, in this case — is essential to a conviction. Therefore, since the State has failed utterly in the necessary quantum of proof as to the underlying crime, defendant’s conviction must be reversed.

In view of this decision, defendant’s other contentions need not be considered.

The judgment of the Circuit Court is reversed.

Reversed.

DRUCKER and LEIGHTON, JJ., concur.

       This section of the Criminal Code provides:
      (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
      (3) He is attempting or committing a forcible felony ■ other than voluntary manslaughter.


author: JUSTICE ENGLISH.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Togher, Defendant-Appellant.
    Gen. No. 54,281.
    First District, Fourth Division.
    June 26, 1970.
    Reuben Stiglitz, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, William Oberts and M. Scott Cisney, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE ENGLISH.

Not to be published in full.


text:
    Preferred Risk Mutual Insurance Company, a Corporation, Plaintiff-Appellant, v. Howard Glenzer, Defendant-Appellee.
    Gen. No. 54,453.
    First District, Fourth Division.
    June 26, 1970.
    Hinshaw, Culbertson, Moelmann, Hoban and Fuller, of Chicago, for appellant.

      No brief filed for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff brought this action seeking a declaratory judgment with respect to the uninsured motorist clause in its automobile insurance policy issued to defendant. Plaintiff’s complaint stated that defendant, while operating his automobile insured under plaintiff’s policy, allegedly sustained injuries on April 22, 1967, in a collision with an automobile being operated by France Alpert. Alpert’s automobile was covered by a policy issued by the Progressive General Insurance Company. Subsequent to the occurrence, Progressive was declared insolvent. Plaintiff contends that defendant is not entitled to coverage under the uninsured motorist clause of the policy since Alpert’s automobile was not “uninsured” as that term is defined in the policy. The trial court entered judgment on the pleadings in defendant’s favor, and plaintiff has appealed.

No brief has been filed by defendant in this court, but we shall, nevertheless, determine the appeal on its merits. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill App2d 264, 254 NE2d 814.

The sole issue for our consideration is whether Progressive’s insolvency subsequent to the accident entitles defendant to coverage under the uninsured motorist provision of plaintiff’s policy. At the time of the accident, the applicable statute did not define the term, “uninsured motor vehicle.” It did provide that an automobile liability policy must contain coverage against injury or death caused by uninsured vehicles, with the proviso that the insured could elect to reject such coverage. Ill Rev Stats 1965, c 73, § 755a. Plaintiff’s policy issued to defendant furnished this coverage, defining an “uninsured automobile” as:

An automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile. (Emphasis added.)

This same situation, involving the exact language of plaintiff’s policy, arose in the case of Dreher v. Aetna Casualty & Surety Co., 83 Ill App2d 141, 226 NE2d 287. There, the court determined that the definition of an uninsured automobile was unambiguous and that coverage was properly denied in spite of subsequent insolvency of the insurer. The court, in Dreher, cited numerous similar decisions from other jurisdictions. We reach the same result in the case at bar. The date of the accident is the critical time for determination of the coverage issue, and it is undisputed that at that time Alpert was not uninsured. Defendant is therefore precluded from coverage in this case.

Our decision does not conflict with that of Illinois Nat. Ins. Co. v. Rose, 93 Ill App2d 329, 235 NE2d 675, where the court ruled that the subsequent insolvency entitled defendant to coverage under the uninsured motorist provision of his policy with plaintiff. That case is distinguishable from the instant one because in Illinois National the policy definition of “uninsured motor vehicle” included the circumstance where coverage under an applicable policy had been denied, the court holding that insolvency amounted to denial of coverage. That point is not before us here.

The Illinois Insurance Code was amended on June 28, 1967, to include the definition of an “uninsured motor vehicle” as a “motor vehicle where on, prior to or after the accident date the liability insurer thereof is unable to make payment with respect to the legal liability of its insured . . . .” (Emphasis supplied.) Ill Rev Stats 1967, c 73, § 755a (2). However, defendant is afforded no relief by this amendment, since his accident occurred prior to the enactment of the amendment, and the same section of the statute is, by its express terms, applicable only to accidents occurring after its effective date.

Accordingly, the judgment of the Circuit Court is reversed and the cause is remanded with direction to enter a declaratory judgment in favor of plaintiff, as prayed for in its complaint.

Reversed and remanded with directions.

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


author: MR. JUSTICE ADESKO

text:
    Rose Skalon, Administratrix of the Estate of Chester R. Skalon, Deceased, Plaintiff-Appellant, v. Manning, Maxwell and Moore, Inc., a Corporation, and Link Belt Company, a Corporation, Defendants-Appellees.
    Gen. No. 52,443.
    First District, First Division.
    June 29,1970.

      Lazzara, Narusis and Stimson, of Chicago (Ellis B. Rosenzweig and Joseph Gordon, of Chicago, of counsel), for appellant.
    Hubbard, Hubbard, O’Brien and Hall, of Chicago, for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This appeal is from a jury verdict against the plaintiff, Chester R. Skalon and in favor of the defendants. During the pendency of this appeal, the plaintiff, Chester R. Skalon, died and Rose Skalon was appointed ad-ministratrix and was substituted as a party plaintiff. For convenience and because of the state of the record, all references to plaintiff will be to Chester R. Skalon.

This suit was instituted by plaintiff for recovery for personal injuries he sustained while an employee of Scully-Jones & Co., in the city of Chicago. On September 30, 1960, the plaintiff was injured by the fall of a machine which had been raised by a one-ton “Budgit” hoist by use of a load hook that was attached to a roller chain connected to the hoist. The evidence established that a pin (or rivet) used to connect a load hook to the chain had fractured and this resulting pin failure caused the machine to fall upon plaintiff’s left leg. The defendants in the case are Link Belt, the company that manufactured the chain involved, and Manning, Maxwell and Moore, Inc., who manufactured the hoist and assembled the chain and its component parts with the hoist.

Plaintiff’s suit was based on a theory of product liability, charging the defendants with negligence in the design, manufacture and assembly of the hoist and chain that were the defendants’ products. The trial was conducted in October of 1966 and took approximately four weeks to complete. The plaintiff’s theory was that the defendants were negligent in the design of the load hook assembly to the roller chain that was used in the hoist. Plaintiff attempted to show that the riveting process undertaken in the assembly of these parts caused the pin to develop a brittle quality; that this brittleness caused the riveted end of the connecting pin to come off, which in turn allowed the pin to move sideways, causing side forces to bear upon the connection which eventually developed into a shearing force; and that the pin failed as a result of the negligence of both manufacturers.

The defendants proceeded under a theory that the hoist had been subjected to improper use by plaintiff’s employer. This allegation was asserted by direct evidence and inference that some type of replacement pin had been inserted into the load hook connection of the chain, thus absolving defendants of liability. The evidence showed that one of the links that had been part of the connection had a “C” stamped on it. Defendants’ witness said that this link was not designed for the weight bearing end of the chain, but rather for the non-load carrying end. Further, defendants presented expert testimony that some fractures had occurred on the surfaces of the chain nearest the hook shank which were allegedly caused by running the chain into the gear teeth of the hoist. It was further inferred that the chain had been operated without a safety shutoff device, consisting of a collar and spring which would automatically shut off the hoist when it came in contact with certain parts of the hoist. This also gave some credence to the theory that the fractured pin had been a replacement of the one installed by defendants.

The parties to this litigation introduced a great deal of testimony and demonstrative evidence. Both sides used expert witnesses to prove their respective theories, relying upon scientific tests, complicated data and the experience of these experts. The record reveals that many rulings made by the trial judge were made in chambers and involved lengthy discussion by counsel and the court.

For a reversal of this judgment, the plaintiff raises two main issues which are divided into many separate contentions. Those issues are:

(1) That the conduct of defense counsel, taken as a whole, served to prejudice the plaintiff’s right to a fair trial; and
(2) That the trial court erred in its rulings as to the admission and exclusion of evidence which resulted in the denial of a fair trial.

We will discuss these issues in that order and will take up the contentions urged by plaintiff separately.

The first issue raised by plaintiff is that the conduct of defendants’ counsel had the cumulative effect of denying the plaintiff a fair trial. From this general allegation, plaintiff argues that many of the defense counsel’s tactics resulted in prejudicial conduct that requires this court to order a new trial. We will examine each of these charges as asserted by the plaintiff.

First of all, the plaintiff contends that defense counsel deliberately delayed or refused to produce information which was called for by subpoenas served upon the defendants. Defendants answer this contention by arguing that the circumstances show that plaintiff abused the use of subpoenas in light of the inherent difficulties of this case. An examination of the record discloses several cogent facts. The subpoenas were served on October 4, 1966, and were returnable on the following day, October 5. The subpoenas sought a great deal of correspondence, memoranda and records from each of the defendants concerning the machinery involved in this case. The categories covered a multitude of data from these two corporate defendants. The time period covered almost a twenty-year span and both defendants kept their records in home offices which were located in other states.

On October 5, 1966, a conference was held in chambers between the trial judge and both counsel concerning the return of subpoenas. The discussion mainly concerned the subpoena served on defendant Manning, Maxwell and Moore, in which some eighteen categories of items were sought for production. Each one of these items was discussed by the court and counsel. Defense counsel answered each request by either stating that the relevant information had been produced, that the defendant had no such information available, or that the home office was searching for such information and that if any was available, then it would be produced. Plaintiff’s counsel responded by disputing the representations of defense counsel regarding the return of this subpoena. The trial judge’s answer was that as to the disputed matters, a hearing would be held in order to settle any questions regarding the subpoena. From the record, it appears this hearing occurred on October 17, 1966.

From our examination of the record we find that no prejudicial error resulted with regard to the production of documents under the subpoenas. There are several examples which plaintiff has emphasized as proof of the prejudice alleged. Plaintiff argues that defense counsel denied the existence of any prior litigation involving similar machinery of the defendants. The subpoena called for all relevant data from the defendants’ records concerning failures or lawsuits resulting from defendants’ hoists that had occurred prior to September 30, 1960, the date of plaintiff’s injuries. Defense counsel stated his clients had no such records, but his search had found a file with defendants’ insurance company. This was produced, but plaintiff’s counsel did not use this at the trial. Subsequently, the local sales manager of Manning, Maxwell and Moore testified that he had heard of another lawsuit which had arisen sometime after 1960. Thus, this information was all beyond the scope of the subpoena and was produced voluntarily by defense counsel.

Another example of the alleged abuse of subpoenas was plaintiff’s requests for parts lists, service manuals, etc. of the hoist and chain involved in this case. Defense counsel initially said that if those documents were available, then the defendants would supply them from their home office location. This further involved the problem of how far back in time the defendant would be required to search for those records. Thus, the date of manufacture was disputed between counsel. This caused the trial judge some difficulty in ruling on the production of these documents. The record shows that defendants’ answers to interrogatories established the year as about 1943. Defense counsel repeatedly asserted that 1943 was the date of manufacture, at one point specifying February, 1943. At trial, one of defendants’ witnesses corroborated the fact that the hoist was manufactured in 1943. Due to the reluctance of plaintiff’s counsel to accept this date, the trial judge was virtually handcuffed in ruling on this point. At the trial on October 17, the record shows that defense counsel produced copies of some 27 memos, parts or price lists which ran from 1944 to 1960, stating that these were all of the documents that Manning, Maxwell and Moore had available.

The other examples with regard to the subpoenas relied upon by plaintiff are susceptible of other reasonable explanation or are wholly unfounded from the record. The record shows that many documents and memoranda were produced in response to these subpoenas. The delay can be attributed to the difficulty in the extent of the demand for production, the difficulty in ascertaining documents from locations out of state, and from the record it appears that certain questions were so heatedly disputed by both counsel that the trial court had some difficulty in properly ruling upon them. The record justifies the conclusion that no error resulted to the plaintiff concerning the subpoenas for production served upon both defendants.

Secondly, plaintiff contends that defense counsel secreted and hid witnesses who were under subpoena, thereby prejudicing the plaintiff’s right to a fair trial. The subpoenas in question were all returnable before the trial judge in his courtroom, and this is substantially what the trial judge instructed both counsel at the beginning of trial.

The plaintiff specifically argues that a subpoena duces tecum issued to Charles E. Vanderlinde was frustrated by defense counsel. This individual was the local sales manager of defendant, Manning, Maxwell and Moore. On October 5, defense counsel represented that this individual did not possess any of the documents or memoranda sought by plaintiff’s subpoena. Then, on October 17, defense counsel admitted that Vanderlinde had been available since October 5, but had not reported to the trial judge. Plaintiff’s counsel wished to examine Vanderlinde as an adverse witness. The record shows defense counsel stated that Vanderlinde was with defense counsel on October 5 and was subject to defense counsel’s call on this subpoena. When plaintiff’s counsel requested Vanderlinde’s presence, the witness appeared and testified that he had no records available which were to be produced by the subpoena. All the records and documents were procured by defense counsel, presumably from defendants’ home office in Michigan. From this state of the record, we are unable to conclude that plaintiff was prejudiced in this regard.

Nor are we convinced that any harm resulted with regard to the witness Ray Orwat. This witness was subpoenaed by the defense after the plaintiff had rested his case. Orwat was an employee of Scully-Jones. He was interviewed at defense counsel’s office and was released. Plaintiff’s counsel complained of this, the trial court reprimanded defense counsel and discussion was had regarding the calling of Orwat. However, after the trial judge agreed to call Orwat as a court’s witness, plaintiff’s counsel decided his testimony was not desired. Although defense counsel deliberately ignored the trial court’s order as to the return of subpoenas, the record does not show any direct prejudice to the plaintiff’s right to a fair trial.

Plaintiff’s third contention concerning prejudicial conduct of defense counsel is that the latter insisted upon injecting references to plaintiff’s recovery of Workmen’s Compensation and that witnesses for the plaintiff had a financial interest in the outcome of the instant case. The record discloses that defense counsel asked three witnesses, who were employees and officers of plaintiff’s employer, whether any of these witnesses or Scully-Jones had any “interest” in the outcome of the lawsuit. Each witness responded in the negative. As to two of these witnesses, defense counsel attempted to ask further questions along these same lines to which the 'court sustained the general objections of plaintiff’s counsel. Defendant argues that these questions were proper under the decision of Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 170 NE2d 635 (1960). Plaintiff takes issue with this decision and argues such evidence has been held as incompetent and prejudicial.

This contention brings into focus two competing principles of evidence law. From the plaintiff’s point of view, he argues that the hint of insurance or other compensation strongly prejudiced the jury’s deliberations adversely to the plaintiff’s recovery. The defendant asserts that it has the right to inquire as to the possible interest of a witness which might affect that person’s testimony. We note that the questions asked by defense counsel are the same as those which were approved in the Olson case, supra. In that case, this court reasoned that despite the possible prejudice to the jury this could not operate to extinguish the right of a party to establish possible motive, bias or prejudice of a witness.

The plaintiff now argues that this rationale of the Olson case is no longer viable and that such questions were so prejudicial as to affect the jury adversely to the plaintiff’s case. The plaintiff relies heavily upon the case of Mangan v. Broderick & Bascom Rope Co., 351 F2d 24 (CA 7th, 1965), where the Olson decision was criticized. In that case, the defense counsel insisted on asking some witnesses as to whether the plaintiff had been paid any compensation by his employer for plaintiff’s treatment and who paid the treating physician. All of these questions resulted in testimony that an insurance company was involved and that a compensation claim was pending. The reviewing court found this to be reversible error, stating that the Olson decision was inconsistent with other precedents. The Mangan decision concluded with the following at page 30:

“Though we can conceive of instances in which the compensation factor might have the effect of discrediting a witness, we think that the use of such evidence should be limited to instances in which possible bias is revealed by some act or factor more profound than the mere fact of employment by a particular employer.”

Despite this singular criticism of the Olson case, we are of the opinion that the employment of its principles in this case was not prejudicial. In the instant case, the testimony elicited by defense counsel resulted in a denial of any interest by the witnesses or their employer, Scully-Jones. No mention of Workmen’s Compensation or the involvement of an insurance company was made in the questions propounded in this ease. This is in sharp contrast to the Mangan case, supra, and the decisions cited therein.

Furthermore, we think the record reflects that the credibility of these witnesses was strongly in issue, to disclose that more than mere employment was involved when these questions were propounded by defense counsel. These witnesses had testified as to the fact that an automatic shutoff, consisting of a collar and spring, was on the hoist immediately prior to the accident. Yet these parts were never recovered from the accident scene on September 30, 1960, or thereafter, and were never produced at trial. In contrast, the two small pieces of the pin that fractured were recovered and used at trial. In light of the fact that plaintiff’s employer immediately investigated the accident and stationed an employee to see that nothing was disturbed makes the disappearance of the automatic shutoff parts difficult to understand. This was a vital part of the defense of this case. Accordingly, we think there was ample reason for the inquiry and we find no merit in plaintiff’s contention in this regard.

The final contention of plaintiff on the issue of defense counsel’s prejudicial conduct concerns the alleged improper examination of witnesses. Plaintiff has argued that defense counsel indulged in the use of innuendo in cross-examination of certain witnesses. We think that the state of the record does not justify this assertion. The situations relied upon by plaintiff were not prejudicial or were not caused by defense counsel.

On the other hand, plaintiff has pointed out several instances in which defense counsel sought to impeach witnesses by use of depositions and prior statements. In most of these instances, the variance between the witness’ testimony and the prior statements did not amount to an inconsistent statement of the witness. The trial judge recognized this problem by sustaining objections to these attempted impeachments. This was properly done under the rule that one cannot use a prior statement as impeachment where that statement was not repugnant to or inconsistent with one’s testimony at trial. Knight v. Chicago & N. W. Ry., 3 Ill App2d 502, 123 NE2d 128 (1954). However, we are of the opinion that such attempts at impeachment were not so erroneous as to create reversible error. The record only reveals defense counsel’s attempt to impeach some of plaintiff’s witnesses but the inquiry was halted by the trial judge in sustaining objections to these questions. Despite the presence of these improper attempts at impeachment, we cannot conclude that plaintiff’s right to a fair trial was denied by this state of the record. Ziegler v. Smith, 86 Ill App2d 215, 229 NE2d 340 (1967).

The second issue argued by plaintiff is that the trial court erred in the admission and exclusion of certain evidence which thereby prejudiced the fairness of the trial. In this regard, the plaintiff has raised a number of contentions under this issue which must be dealt with separately.

Initially, plaintiff contends that the trial court erroneously admitted testimony of defendants’ expert witnesses with regard to the failure of the products in question. In support of this contention, plaintiff argues that the expert witnesses were allowed to base their opinions on speculation, conjecture and facts not in evidence. Furthermore, plaintiff argues that the testimony of these experts invaded the province of the jury in that their opinions were based on data which could easily be understood by laymen. As to the last contention, we think the very nature of the case and the theories by which the case was tried reveal that there is no merit in that argument. The questions in this litigation were concerned with very detailed and precise machinery which involved some elaborate scientific testing and terminology in order to explain the functions of the chain and hoist involved. This fact was recognized by plaintiff and defendants as witnessed by their reliance upon expert examination and resulting testimony. We. do not agree with plaintiff that the defendant usurped the jury’s function by allowing expert opinion as to the possible causes for the failure of this pin.

In one of the cases cited by plaintiff, Turnbow v. Hayes Freight Lines, Inc., 15 Ill App2d 57, 145 NE2d 377 (1957), the court announced the general rule that where the issue of causations is disputed, it is error to allow an expert to give an opinion as an absolute certainty on the cause of one’s injury. Such would be an invasion of the fact-finding province of the jury. However, the rationale of the court was that an expert’s opinion of causation would be. acceptable if couched in conditional language so as to limit the testimony to a possibility of causal relation. We are of the opinion that both the defendants’ expert witnesses as well as plaintiff’s experts engaged in this type of testimony when each side sought to prove their respective theories as to the cause of this accident which resulted in plaintiff’s injuries.

The remaining contention is that defendants’ experts were allowed to state speculative and conjectural opinions. Plaintiff argues that the defendants’ experts were allowed to testify on hypothetical facts not in evidence. Defendant argues that an expert witness may give an opinion based upon his own personal knowledge and personal observation, as well as hypothetical questions based on evidence. Krueger v. Friel, 330 Ill App 557, 71 NE 2d 815 (1947) ; Richards v. Village of Edinburg, 97 Ill App2d 36, 239 NE2d 466 (1968). With these principles in mind we will examine the specific instances relied upon by the plaintiff.

The defendants introduced testimony of Burt Pearce, a mechanical engineer for defendant Link Belt. He had been employed by the company for a number of years and was experienced as to the composition of the chain involved in this case, as well as other chains manufactured by this company. Pearce testified as to the parts composition of the chain and the various tests performed by his company. The witness examined the various parts of the chain that were in evidence. He was asked whether he had an opinion as to why the pin had fractured, based on his examination of these parts. Pearce stated that the pin had fractured as a result of a previous weight overload making the pin susceptible to breakage. His opinions were based on the load tests performed by Link Belt.

Plaintiff argues this was error. We cannot agree with that contention since the question was not couched in terms of hypothetical facts nor were facts assumed by defense counsel propounding the question. The witness’ answer brought in the theory of an overload of the chain. We think his experience in the manufacture and testing of such products in his employment justified the witness in testifying as to this possible cause for the pin failure.

Plaintiff also takes issue with the testimony of Pearce and the other expert witnesses called by defendants with regard to the improper use of the chain and hoist. The record reveals that defense counsel made inquiry as to certain uses of the chain that might cause side forces to be exerted upon the chain and load hook assembly. Plaintiff argues that such opinions were based on hypothetical facts and contrary to the evidence. We are of the opinion there is no merit in that contention. As stated above, an expert witness may base his opinion on personal knowledge and personal experience as well as hypothetical questions based on the evidence. These questions were asked of individuals who were knowledgeable in the composition of this machinery and who had long years of experience with the operation of this equipment. This fact alone would justify their testimony. However, plaintiff has overlooked the fact that the proof submitted in its case had interjected the theory that side forces had come to bear on this pin, resulting in a shearing action which was contended as the cause of the pin failure. Thus, defendants were merely attacking this theory by asserting their own as to the possible cause of the pin failure.

Similarly, the testimony with regard to the operation of the hoist without the shutoff mechanism was not based on conjecture. The evidence was disputed as to whether the safety collar and spring had been removed from the chain when it was operated in the hoist. This was a factual question for the jury’s determination. Defendants theorized that the collar and spring had been removed, so that the pin that failed was a replacement of the one they had manufactured. They further sought to prove that during the use of this chain by plaintiff’s employer some damage may have been caused by the improper operation of the hoist and chain. We think plaintiff’s argument for restricting the evidence as to the use of the chain on the date of the accident would have been unduly restrictive. Accordingly, we conclude that the trial judge properly allowed the defendants to inquire as to that state of the evidence.

Plaintiff next contends that the trial court incorrectly admitted photographs of a tensile strength test conducted upon a length of chain of the type used in the roller chain involved in this case. The argument is that these photographs showed the result of an experiment conducted by Kenneth Packer, one of defendants’ expert witnesses, in which there was no proof that the conditions of the experiment were substantially similar to those existing in the case. The witness testified that he had received a length of RC 75 roller chain from defendants in order to conduct the test. He used a simulated hook shank arrangement in order to place a vertical force upon the chain components to test its tensile strength. The witness said he relied upon prints and drawings as to the type of material and the specifications of this length of chain. He stated some of this data was corroborated by the oral statements of defendants’ engineers.

We are of the opinion that plaintiff’s contention is without merit. The record shows that the witness, Packer, was asked to give an opinion as to the strength of the chain. The tensile strength experiment was conducted for that purpose. This was not the type of experiment that would attempt to substantially reproduce the conditions as existed on the date of plaintiff’s accident. The experiment and resulting testimony was only conducted in order to give an opinion as to the strength of the chain and its component parts. Thus, any dissimilarity of conditions did not affect the competency of this testimony. Harsh v. Illinois Terminal R Co., 351 Ill App 272,114 NE2d 901 (1953).

Similarly, plaintiff contends this testimony was incompetent because Packer admitted on cross-examination that he relied upon data supplied by defendant’s experts, Pearce and Smith, as to the metal composition of the chain tested. Plaintiff argues that the witness had thus relied upon hearsay to form the basis of his opinion. We are not persuaded by this assertion. Packer was testifying as to the result of an experiment that he had conducted. He was not testifying as to the results of another person’s experiment. Mehochko v. Gold Seal Co., 66 Ill App2d 54, 213 NE2d 581 (1966). The data relied upon by Packer did not affect the competence of the evidence. If the witness incorrectly relied upon assertions by other individuals as to the composition of the materials used in the test, this factor would only affect the weight of his testimony.

Plaintiff complains of a certain exclusion of evidence by the trial court. The exclusion occurred when the plaintiff called an attorney to the stand who had been present at a discovery deposition of Link Belt’s chief metallurgist. This person had made the statement that the chain involved in this case was designed to last indefinitely. The defendants objected and the trial court excluded this testimony. The grounds were that the statement was not an admission against interest and that it could only be used for impeachment. Plaintiff argues this was error since the statement was an admission against interest.

From the record before us, we cannot hold that the trial court erred in excluding this evidence. This statement was not against the interest of defendants. The defense relied upon a theory of improper use of the chain and hoist. The statement that the chain was designed for indefinite life does not contradict their theory of defense. The fact of design defect and negligence in the manufacture of the chain and hoist were disputed. However, this statement does not contradict the position taken by the defendants on this issue. Korleski v. Needham, 77 Ill App2d 328, 222 NE2d 334 (1966).

Plaintiff’s final contention is that the trial court erred in admitting seventeen photographs into evidence. These were defendants’ exhibits taken at the Scully-Jones plant, where plaintiff was injured. Plaintiff complains of seven photographs that revealed a number of views of the plant. Plaintiff argues that defense counsel repeatedly examined witnesses by using these exhibits that were marked for identification. No authority has been cited for the impropriety of this procedure and we feel there is nothing incorrect in such a method, particularly since the witnesses identified these photographs. Plaintiff now argues that these pictures portrayed an “unflattering view” of the plant which served to prejudice the jury. However, no objection was made at trial in this regard, so the question has not been properly preserved for our consideration.

The purpose and object of a reviewing court is not to determine whether a record is completely free of error, but rather the review is undertaken to determine whether upon the trial there has been error that might have prejudiced the rights of a party. Adamaitis v. Hesser, 56 Ill App2d 349, 206 NE2d 311 (1965). We are of the opinion that the above rule is appropriately applicable to this appeal.

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

Judgment affirmed.

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


author: JUSTICE MURPHY.

text:
    Louis V. LeClair, Plaintiff-Appellant, v. Chris-Craft Boat Sales, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 52,815.
    First District, First Division.
    June 29, 1970.
    Nat M. Kahn, of Chicago, for appellant; Victor J. Cacciatore and John J. Turner, of Chicago (John J. O’Toole and Alan E. Sohn, of counsel), for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


author: PRESIDING JUSTICE BURMAN.

text:
    People of the State of Illinois, Appellee, v. Mark Clancy, Appellant.
    Gen. Nos. 52,893, 52,894.
    First District, First Division.
    June 29, 1970.

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

PRESIDING JUSTICE BURMAN.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Martin Gariti, Plaintiff-Appellant, v. Leonard Karlin, Administrator of the Estate of Henry L. Olds, Deceased, Defendant-Appellee, and Phelps-Dodge Copper Products, Inc., a Corporation, Defendant-Appellee. Agnes Sullivan, Administrator of the Estate of Homer D. Sullivan, Deceased, Plaintiff-Appellant, v. Phelps-Dodge Copper Products, Inc., a Corporation, Defendant-Appellee, and Leonard Karlin, Administrator of the Estate of Henry L. Olds, Deceased, Defendant-Appellee.
    Gen. No. 52,985.
    First District, First Division.
    June 29, 1970.

      Louis G. Davidson and Lawrence P. Hickey, of Chicago, (Daniel P. Kearney, of counsel), for appellants.

      Schaffenegger and Watson, of Chicago (Jack L. Watson and Douglas Bristol, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by plaintiffs from a judgment entered on a jury verdict in favor of the defendants in a consolidated personal injury action involving a mutiple-car accident.

On January 27, 1961, at 8:30 p. m., plaintiff, Homer Sullivan, was traveling in a southerly direction on Mannheim Road, a four-lane highway near Fullerton Avenue. Plaintiff, Martin Gariti, was driving his car behind Sullivan’s vehicle. Defendant, Henry L. Olds, was proceeding northbound on Mannheim Road in a vehicle rented from the Hertz Corporation by his employer, the Phelps-Dodge Copper Products Company. The Sullivan and Olds vehicles collided, and the Olds vehicle then struck the Gariti car. Henry L. Olds died of injuries four days after the occurrence. Plaintiffs, Sullivan and Gariti, filed separate suits (which were later consolidated on the motion of the defendants) against Phelps-Dodge Copper Products Company and the administrator of the estate of Olds. After the death of Homer Sullivan, during the pen-dency of his suit, the administrator of his estate was substituted as a plaintiff.

There was a factual dispute as to which car crossed the center line and whether Olds was or was not acting as the agent of his employer. Plaintiffs’ evidence included testimony by plaintiff, Martin Gariti, that he had been following the Sullivan car for four or five blocks and at no time did his car or the Sullivan car leave the inner southbound lane. Each car was proceeding at about 40 m. p. h. At the time Gariti saw the collision in front of him, the Sullivan car was still in the inner southbound lane, although Gariti was unclear as to what exactly had happened. James Bennett, who was working at a gasoline station on Mannheim Road between Fullerton and Grand, heard a crash and observed that there had been a collision between the Sullivan car and the car driven by Olds. At that time he saw that the Olds car was still moving in a north by northwest direction with part of the car on each side of the center line and was traveling at a speed of not less than 60 m. p. h., possibly as great as 80 m. p. h. Trooper George Huizenga testified that he was present following the accident when a fellow state police officer asked Mr. Sullivan questions and he answered them. Mrs. Sullivan testified that while hospitalized after the accident her husband was found to have diabetes. Prior to that time he had made no complaint about diabetes and had never seen a doctor for that condition. When he left the hospital, he was given some needles and insulin for the treatment of diabetes.

The sole witness for the defense on the issue of liability for the accident was Dr. George J. Cooper, an expert witness. Dr. Cooper was asked, over objections, a hypothetical question which included the general facts of the occurrence and the condition of diabetes found to exist in the hypothetical man (Sullivan). The doctor answered that he did have an opinion based upon a reasonable medical or surgical certainty whether the accident on the highway might or could have a causal connection with a condition of diabetes found in the hypothetical person. He said:

I have an opinion. And that is based on the facts that this individual was an unknown, untreated diabetic, and these individuals vary in their ability to respond to situations. This is the higher level of consciousness, and one. does not have to lose consciousness to lose judgment and all of its faculties, coordination, and recall, plus analysis at a split second. When we are dealing with a diabetic who even though some who are under treatment and not properly managed, not properly controlled, they first show defects in the upper brain processes — memory, recall, analysis, judgment. And a split-second change in these reactions can produce a loss of control for a split moment — of the extremity control — and he can lose control of the vehicle or make a mis judgment.
The same holds true with visual perception, which is also one of the higher levels of the brain, the ability to visualize in depth. This is one of the finer nerve endings of the brain. It’s the one that suffers first from diabetes. And in an unmanaged case — and there is no such thing as mild diabetes because any diabetic, if he doesn’t get managed properly, can proceed to coma and die just like an individual who is on a heavy dose of insulin.
And in my opinion this man momentarily had a defect in his thought processes that caused the accident.

On cross-examination, Dr. Cooper testified that the factors that influenced his opinion were Sullivan’s confusion after the accident, his failure to recall what had happened, Sullivan’s being a diabetic sorely in need of treatment and the accident itself. It was also apparent from his answers that Dr. Cooper was familiar with the results of tests made on Sullivan, but not included in the hypothetical question. Dr. Cooper testified that he understood the accident in the question put to him as occurring when the Sullivan car partially swerved across a lane and hit the Olds car, which then hit the Gariti car. When asked if his opinion would be different if the Sullivan car had not swerved, but had remained in its lane, Dr. Cooper replied that if the hypothetical man didn’t swerve and didn’t lose control no matter how minutely or for how brief a time, a different problem was posed, and his opinion would be somewhat different. While his subsequent explanation is somewhat unclear, it seems that it was his opinion that the facts about diabetes wouldn’t change, but the initiating factor of the collision might be different.

Dr. Elmer Crisp testified on behalf of the plaintiffs in rebuttal, that based on the urinalysis of Sullivan done immediately after the accident it would have been impossible for his condition to have caused him to lose physical coordination and thereby lose control of his car.

“The opinion of an expert is to be allowed only if it is based on and supported by facts in evidence.” Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 530, 34 NE2d 732, 734. In Kanne the deceased had gone out onto Lake Tahoe in a boat and was later found dead in the water. There were no eyewitnesses. Artificial respiration induced about a quart of water out of her body. The only evidence of the defendant that the death was not caused by drowning was the testimony of a physician that death could or might have resulted from chronic myocarditis which would have relieved the insurer of liability. There was not a scintilla of evidence to show that the insured had ever suffered from any illness or infirmity of that kind. The medical evidence required by defendant before issuing the insurance policy seemed to affirmatively disprove any such condition. The doctor based his opinion upon whether the death occurred before or after the body entered the water, but there was no evidence to show whether the body went up or down or whether clothed as the insured was at the time, the body would sink or rise whether dead or alive. The doctor also drew inferences from other facts which no evidence showed to exist or not. The court held that his opinion was based upon mere guess, surmise and conjecture and affirmed the judgment granted for the plaintiff notwithstanding the verdict for the defendant.

Similarly, in Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633, the testimony of two physicians was held to be improper where they testified that there might be a causal connection between plaintiff’s trauma after the automobile collision and the subsequent meningoencephalitis based upon the assumption that the brain or spinal cord was injured as a result of the collision. There was no evidence of any such brain or spinal cord damage, and the experts’ opinions were thus not supported by facts in evidence.

In the case at bar, the medical witness for the defense made several assumptions on which he based his opinion. The most important and most unwarranted of these were that Sullivan was a diabetic, and that it was Sullivan whose car swerved across the center line before the collision. There was evidence that Sullivan was given insulin for a diabetic condition after the accident. There was no evidence showing that Sullivan was diabetic before the accident, or if he was, as to the extent of his condition. There was absolutely no evidence in the record on which any expert could properly express an opinion that Sullivan was suffering to such an extent from the possible consequences and effects of an unrecognized and undiagnosed diabetic condition that he could have become uncoordinated and allowed his automobile to go onto the wrong side of the highway at the time of the accident.

It was clear from the cross-examination of Dr. Cooper that he also assumed that it was Sullivan’s car which swerved across the center line before the collision. There was no evidence to support this assumption, and what evidence there was tended to prove that Sullivan remained in his lane. This was the critical fact in the case. If the defense had proven what the doctor assumed, his testimony would have been unnecessary. Since it was not proven, his testimony was highly speculative and improper.

Doctor Cooper testified that in his opinion, “this man had a defect in his thought processes that caused the accident.” It is not the province of an expert to act as judge or jury. He cannot be called upon to decide a question of fact. He may, however, make assumptions which have a basis in the evidence, although controverted by other evidence. That is the proposition for which Gus T. Handge & Son v. Industrial Commission, 33 Ill2d 201, 210 NE2d 498, and Monark Battery Co. v. Industrial Commission, 354 Ill 494, 188 NE 413, relied on by the defendants, stand. In the instant case there was, however, no evidentiary basis at all for the assumptions made by the doctor. His testimony was highly speculative and it was not proper or competent to be considered by the jury. Mere surmise, guess or conjecture by an expert witness is never regarded as proof of a fact, and a jury will not be allowed to base a verdict thereon. Wallace v. Yudelson, 244 Ill App 320, 329. The cause must therefore be remanded for another trial.

Since there must be another trial, we do not deem it necessary to consider other issues raised by the plaintiffs. For the reasons stated, the judgment of the Circuit Court is reversed, and the cause is remanded for another trial.

Reversed and remanded.

MURPHY and ADESKO, JJ., concur.