text:
    Serbian National Defense Council of America, an Illinois Corporation, Plaintiff-Appellee, v. Marko Borkovich, Defendant-Appellant.
    Gen. No. 52,507.
    First District, First Division.
    January 13, 1969.
    Herbert F. Stride, of Chicago (Elliot Heidelberger, of counsel), for appellant.
    William J. Kiley, of Chicago for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The plaintiff, the Serbian National Defense Council of America, initiated the present action in order to recover monies loaned to the defendant, Marko Borkovich. The loan allegedly was evidenced by a written contract. The cause was tried before a jury and at the close of all of the evidence the court directed a verdict in favor of the plaintiff. Judgment was entered against the defendant in the amount of $3,466.87.

The defendant contends, on appeal, that there was sufficient evidence in the record to present a question of fact to be determined by a jury. He asks this court to reverse the trial court and remand the case for a new trial.

On May 1,1961, the plaintiff filed a complaint in which it alleged that the plaintiff and the defendant entered into a written contract on April 26,1952, wherein the plaintiff loaned the defendant $3,000 for a down payment on the purchase price of a home. The plaintiff further alleged that the defendant failed to pay the balance due under the loan. The plaintiff acknowledged that the written contract entered into by the parties was lost, but maintained that the defendant made payments of $850 on the loan, leaving a balance due of $2,150, plus 5% interest.

The defendant filed an answer in which he denied that he entered into a written contract with the plaintiff, that the plaintiff loaned him $3,000, or that he, the defendant, made payments of $850 on the loan.

We summarize the evidence. Plaintiff organization aided refugees coming to the United States during and after World War II. The defendant came to the United States in 1951, and with assistance from plaintiff the defendant moved his family from New York to Chicago. Mr. Peyovich, the secretary of the plaintiff organization in the early 1950’s, told the central committee of the organization that the defendant had a wife and several children and could not find a reasonable place to live. In order to remedy this situation Nada Rashovich, plaintiff’s bookkeeper, showed the defendant a house at 3840 North Marshfield Avenue in Chicago.

The defendant, Marko Borkovich, testified that Mrs. Rashovich told him that the house at 3840 North Marsh-field would cost $13,000 and that he would be required to make a $3,000 down payment and have a $10,000 mortgage. He bought the house and moved in on July 6, 1952. The defendant said that he made monthly payments of $200 to Mrs. Rashovich for thirty-one months beginning with April 26,1952, but never received a receipt from her. He made no further payments to the plaintiff thereafter. He denied that he ever entered into a written contract with plaintiff. He testified further that in September 1954, Mrs. Rashovich took him to the North Avenue Federal Savings and Loan Association and told him he could have his own loan repayment book since he had paid the $3,000 down payment plus $2,000 on the mortgage. A new account was opened for him at that savings and loan association in the amount of $10,000 and he executed a mortgage to them. On October 12, 1954, a warranty deed for the house was delivered by Hya Tarailo, plaintiff’s treasurer, to the defendant. The deed bore revenue stamps in the amount of $16.50.

The defendant further testified that in February 1955, Mrs. Rashovich came to his house and told him for the first time that the house cost $15,000. He said she showed him a letter addressed to her on the stationery of the Serbian Council which acknowledged recipt of $200 from the defendant on account of the $3,000 down payment made by the Council. The letter further recited that when the defendant had paid the balance of the $3,000 loan the Council would convey title of the house to him. On the bottom of the undated letter appeared a notation made by Mrs. Rashovich stating that the cost of the house was $15,000 subject to the down payment of $3,000, a junior mortgage of $2,000, and a $1,000 mortgage due to the Avondale Savings and Loan Association.

In 1958, the defendant completed the repayment of the loan of $10,000 from the North Avenue Federal Savings and Loan Association whereupon North Avenue Federal mailed him the cancelled mortgage and various other papers. The defendant further stated that in 1960, Mr. Louis Peyovich, the plaintiff organization’s secretary, visited him at his home in an effort to collect money from him. Subsequently, on October 7, 1960, the defendant received a letter from the Council demanding the balance of the $3,000. If $2,150 was not paid the letter read, the Council would be forced to take the matter to court. In answer to an inquiry from the trial judge, the defendant’s counsel informed the court that although the defendant thought the purchase price of the house was $13,000, the defendant paid $15,000 for it. The defendant denied that he ever signed an agreement with the plaintiff or that he paid $850 as alleged on the alleged $3,000 loan.

Dr. Wroush Seffer, National President of the Serbian National Defense Council, testified that Mr. Peyovich asked the Council’s central committee to loan the defendant $3,000 to use as a down payment on a house he wanted to buy. A check for $3,000 dated April 26, 1952, and made payable to Ilya Tarailo, the Council’s treasurer, was advanced as earnest money for the defendant. Dr. Seffer identified an exhibit, dated June 11, 1952, on the stationery of C. B. Zeller, realtor, as the closing statement for the purchase of property for the defendant. The statement shows the buyer to be Ilya Tarailo and shows the sellers to be Walter and Margaret King, the owners and residents of the premises at the time. He identified another exhibit as being an unsigned carbon copy of an agreement between the Council and the defendant. Dr. Seffer stated that he could not find the original. The witness said that the defendant signed the written agreement which stated in part that the Council loaned the defendant $3,000 and “Mr. Borkovich is to repay the sum of $3,000.-00 Dollars to the Serbian National Defense Council of America, when title to the property at 3840 North Marsh-field is in the name of Mr. Borkovich.” Dr. Seffer further testified that he had inspected the books and records of the Council before the letter of October 7, 1960, was sent to the defendant. He said that his inspection revealed that the defendant had paid $850 toward the loan, but that the balance had not been paid, nor was it paid subsequent to the receipt of the letter. The witness said that he had itemized the payments made by the defendant and attached the figures to the letter of October 7th.

Three of the central figures in the controversy surrounding the disputed transaction did not testify at the trial. Mr. Ilya Tarailo, the Council’s treasurer, died before the case came to trial. Mr. Peyovich, the secretary of the plaintiff organization, and Mrs. Rashovieh, the Council’s bookkeeper, were also unavailable and did not testify. Furthermore, neither the records of the Council, nor evidence of defendant’s alleged payment of $850, were produced.

It is elementary that a trial judge may not substitute his judgment for that of a jury as to the weight and credibility of conflicting evidence. The latest rule adopted by our Supreme Court on this subject states that a verdict should be directed where the evidence, when considered in its aspect most favorable to the opposite party so overwhelmingly favors the movant that no contrary verdict could be permitted to stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

Viewing the evidence most favorably for the defendant, we conclude that the issues between the parties are in essence ones of credibility. There is conflicting and irreconcilable testimony in the record. We think the evidence in this record, together with the legitimate inferences that may be drawn tend to establish a question of fact for the jury to decide. The court, therefore, erred in directing a verdict for the plaintiff.

The record clearly establishes that the plaintiff was careless in its operation of loaning money. It is uncontroverted that the defendant did not receive receipts when he made his monthly payments to the plaintiff. There is a conflict as to whether any agreement was signed by the defendant to repay the down payment of $3,000 advanced by the plaintiff. No junior mortgage or note was signed by the defendant to secure this loan. The purported agreement relied on by the plaintiff recites that “Mr. Borkovich is to repay the sum of $3,000.00 to the Serbian National Defense Council of America, when title to the property at 88i0 N. Marshfield- is in the name of Mr. Borkovich.” (Emphasis ours.) It is plaintiff's version that the balance of the loan was unpaid, yet the plaintiff organization apparently assisted the defendant to obtain title to the property in October 1954, subject only to a first mortgage held by the savings and loan association in the amount of $10,000. Prior to this event, plaintiff held title to the property in the name of one of its officers.

It was in February of 1955 that Mrs. Rashovieh informed the defendant that he still owed the plaintiff the balance of the loan. It was in 1960 that the Council served written notice upon the defendant that he owed $2,150 on the loan. This notice came long after the defendant had paid his first mortgage. The defendant testified that he had paid the full amount of the purchase price and denied that he owed any money to the Council. The jury should have been allowed to decide the questions of fact raised by the conflicting testimony.

Under the facts and circumstances the plaintiff was not entitled to have the issues withdrawn from the jury. The judgment of the trial court is, therefore, reversed and the cause remanded for a new trial.

Reversed and remanded.

ADESKO, P. J. and MURPHY, J., concur.

       It should be noted that the Serbian National Defense Council had transferred title to the defendant four months before he had first been shown the letter.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Victor E. Schiffer and Donna E. Schiffer, His Wife, Mattie D. Tighe, and Texaco, Inc., a Corporation, Plaintiffs-Appellees, v. The Village of Wilmette, a Body Politic and Corporate, Defendant-Appellant.
    Gen. No. 52,872.
    First District, First Division.
    January 13, 1969.

      Robert J. Mangier, Corporation Counsel, of Wilmette, for appellant.

      Melvin A. Weinstein, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant Village appeals from a declaratory judgment order, which found that the provisions of the Wilmette Zoning Ordinance (as amended) constituted an “unconstitutional deprivation of the plaintiffs’ property.” The Village was ordered to issue necessary permits for the construction of a gasoline station subject to all of the applicable Village ordinances.

On appeal, the Village contends:

1. Defendant was not afforded a fair and impartial hearing in that the trial court at the opening of the trial stated that the case had been decided.
2. The plaintiffs failed to overcome the presumption of validity attaching to the zoning ordinance of the Village of Wilmette.
3. The increase in value if used for gas station purposes does not render the ordinance invalid.
4. Based on the evidence in the record there was room for a fair difference of opinion on the reasonableness of the restriction placed on the plaintiffs’ property by the ordinance and it should have therefore been upheld.
5. The lack of community need is highly relevant in the refusal to zone the property to permit another gasoline service station.
6. Dangers created by traffic moving in and out of the proposed gasoline service station is a reasonable basis for the exercise of the defendant’s police power in zoning the subject property for R-3 use.

The subject property consists of two parcels, which have a total frontage of 259.04 feet on Lake Avenue in the Village of Wilmette, commencing at the southeast corner of the intersection of Lake Avenue and Lavergne Avenue. Parcel No. 1 is owned by the plaintiffs, Victor E. Schiffer and his wife. It has a front footage of 113.04 feet on Lake Avenue and approximately 126 feet on Lavergne Avenue, and its easterly edge abuts upon parcel No. 2. Parcel No. 1 is rectangular and contains in excess of 14,000 square feet. It is presently improved with a 1%-story brick residence and attached garage, facing Lake Avenue.

Parcel No. 2, the westerly boundary of which is common to Parcel No. 1, has a frontage of 146 feet on Lake Avenue and a depth of 247 feet. This parcel is owned by the plaintiff, Mattie D. Tighe. It contains in excess of 36,000 square feet and at present it is vacant and unimproved.

The third plaintiff is Texaco Oil Company, which has an option to purchase Parcel No. 1 for $67,500 and Parcel No. 2 for $60,000, on the condition that the property be zoned for service station use. The options were entered into in November of 1964 and terminate in November of 1969.

The block in which the subject property is located is classified in the R-3 Group House District in the zoning ordinance of the Village. The R-3 District, as originally adopted in the 1959 zoning ordinance, includes all the frontage on the south side of Lake Avenue from Lavergne, east past Skokie Boulevard to Hibbard Road, and to a depth of some 247 feet south of Lake Avenue. East of Skokie Boulevard the R-3 District runs south to Washington Avenue and includes a triangular piece of property bounded by Skokie Boulevard, Lake Avenue and Hibbard Road.

The east end of the subject block on Lake Avenue is the southwest corner of the intersection of Skokie Boulevard and Lake Avenue. This corner is occupied by a “Marathon” gasoline station, which is about 500 feet east from the intersection of Lake and Lavergne Avenues. This gasoline station was installed in 1963 pursuant to a decree of the Circuit Court, which was affirmed in Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill2d 116, 188 NE2d 33 (1963).

The southeast corner of the intersection of Skokie Boulevard and Lake Avenue is occupied by a Standard Oil service station installed in 1966 pursuant to a decree of the Circuit Court, affirmed by this court in Chicago Title & Trust Co. v. Village of Wilmette, 66 Ill App2d 326, 214 NE2d 336 (1966).

Lake Avenue is a four-lane primary thoroughfare with traffic structures in the center. Skokie Boulevard, which intersects with Lake Avenue about one-half block east from the subject property, is also a four-lane primary thoroughfare. The balance of the block between the subject property and the Marathon gasoline station at the southwest corner of the intersection consists of another vacant parcel and a single-family dwelling. The balance of the block east of the Standard station on Lake Avenue and Skokie is developed with townhouse residential construction.

To the south of the subject property for several blocks the area is developed with single-family dwellings ranging in value from $30,000 to $50,000. To the north of the subject property on the north side of Lake Avenue is a planned retail shopping development known as the Edens Plaza Shopping Center, and that property is zoned B-l, Planned Retail Shopping District. The Edens Plaza Center occupies a 20-acre tract and was constructed in 1955.

West of the subject property on Lake Avenue, and within one-half mile, are four more gasoline service stations. About one block west of the subject property is Edens Highway, which has an exit ramp for eastbound Lake Avenue traffic, which passes in front of the subject property. Immediately to the west of the subject property and slightly south is a single-family residential area.

Mr. Schiffer, owner of Parcel No. 1, testified for the plaintiffs that he had purchased the property in July 1964 for $80,000 and was living with his family in a single-family dwelling on the site. He did not have any appraisal made. The owner of Parcel No. 2, Mrs. Tiche, did not testify. Two representatives of the Texaco Company testified for the plaintiffs that they considered the subject property a good location for the installation of a service station in spite of the fact that there were other stations in the immediate area. One of these witnesses, Mr. Knight, testified that they proposed to develop the corner parcel and part of Parcel No. 2 but had no current plans for the use of the east 75 feet of Parcel No. 2.

Plaintiffs’ planning expert, William S. Lawrence, testified that his opinion was that a service station would be compatible with surrounding properties and that it would not have an adverse effect on adjoining properties. He thought that it would be the highest and best use of the subject property. He believed that this property takes its character from the other commercial uses on both sides of Lake Avenue. The fact that residential uses to the south of the property have been established backing up upon this property, and screened from the subject property, indicated to him that there would be a transition and that the rear property line would be a reasonable point of transition between zoning districts. His opinion was that traffic patterns would make a reasonably safe entrance and exit to the subject property. It was also his opinion that the value of the two subject parcels for the present K-3 zoning was $45,000 to $50,000.

Plaintiffs’ real estate expert, Mr. McNamara, testified that his opinion of the value of the property for the existing zoning purposes was $67,500 and that the value of the property for the gasoline station would be $150,000. He stated that the use of the subject property as a gasoline station would have no effect on the value of the homes located behind it because the effect has already been established by virtue of the B-3 use at the intersection.

Defendant’s witnesses included John F. Scapin, its Director of Planning, Zoning and Building, who testified that in his opinion the R-3 zoning was the highest and best use of the subject property and that this was based on the fact that this property was part of an area of study of a comprehensive plan. The R-3 classification for the south side of Lake Avenue was meant to be a transition and buffer zone between the single-family use to the south and the Edens Plaza commercial use to the north. Defendant’s traffic engineer and former chief of police, Mr. E. F. Whiteside, testified as to the traffic conditions in the area, including a traffic count and the number of school buses using both Lavergne and Lake Avenues. This witness also testified to the accident history of the intersection of Lavergne and Lake Avenues. It was his opinion that the installation of a gasoline station at this intersection would increase the congestion and chance of accident. Defendant’s planning expert, Mr. George Kranenberg, was also of the opinion that the highest and best use of the premises was for R-3 group or townhouses. In his opinion, the uses which directly relate to the subject property are group houses to the south and west and the single-family homes to the south. The business uses at the corner of Skokie Boulevard and Lake Avenue refer to that intersection and are directed to it. He also stated that Lake Avenue is not completely a business street. There are some business and commercial uses west of Edens Expressway, but to the east of the Expressway the only business uses are those which are at the intersection of Skokie and Lake Avenue, and to the east of that the use is all residential. To the north, the Edens Plaza is a commercial use separated from the subject property by a four-lane divided highway, and it was his opinion that this was a buffer zone between the shopping district to the north and the subject property.

The defendant’s real estate expert, Mr. Buckmaster, testified that in his opinion the present value of the two parcels with K-3 zoning was $93,500, the value of the improved parcel (No. 1) was $33,500, and the value of the vacant parcel (No. 2) was $60,000. It was his opinion that the use of the subject property as a gasoline service station would have a detrimental effect on the adjacent single-family homes.

A defendant’s witness, a neighbor to the south, testified that a gasoline station use would seriously undermine the value of his property and create an additional danger to children, particularly on Lavergne Avenue.

Initially, in the consideration of defendant’s contentions, we find no merit in the charge that it was not afforded a fair and impartial hearing. This charge is based upon remarks made by the trial judge at the opening of the trial. The judge questioned the need for a trial because “there is a complete review of this property in the law report from the Appellate and Supreme Court.” The trial then proceeded, and the record shows that both sides were given a full hearing.

As to defendant’s contention that the plaintiffs failed to overcome the presumption of the validity in favor of the ordinance, the Village argues that all that was shown was a difference of opinion between plaintiffs’ experts and its own experts as to the value of the property under different zoning classifications, and there is no showing of hardship on the plaintiffs or evidence that the present owners had attempted to sell the property for use under the present ordinance. On this point defendant’s authorities include Gregory v. City of Wheaton, 23 Ill2d 402, 406, 178 NE2d 358 (1961):

“To sustain this burden it is not enough to show that the restriction works a hardship on him, or that the desired use would not substantially impair the public health, safety, or welfare.”

Defendant Village also states that the dangers which will be created by traffic moving in and out of the proposed gasoline station is a reasonable basis for the exercise of defendant’s police power, and that it was the expert opinion of its traffic engineer “that the installation of the gasoline service station at this location would increase the traffic hazard and increase the accident volume. Thus, the defendant offered specific evidence as to why it has exercised its police power and restricted commercial development in the area of the subject property.”

Plaintiffs argue that the paramount factor to be used here is the use and zoning of nearby properties, and “it is readily apparent from the character and near universal development and utilization of Lake Avenue for business and commercial purposes, that the present residential classification of the subject property is invalid,” and ■that “with the exception of the subject property and one single family dwelling, the entire area fronting on Lake Avenue, from Edens Highway to the eastern corners of Lake and Skokie, is devoted entirely to business and commercial uses. It is difficult to understand the defendant’s efforts to impose a residential classification on the subject property in view of the nearly exclusive business and commercial development of the area.”

In considering defendant’s contentions on appeal, we believe the guidelines to be applied here are set forth in the “Marathon” case, 27 Ill2d 116, 123, 188 NE2d 33 (1963):

“The rules governing the validity of zoning ordinances are familiar and undisputed. For a particular classification to be upheld it must bear a reasonable relation to the public health, safety, comfort, morals or welfare, and one who challenges its validity has the burden of proving it to be arbitrary and unreasonable. (Gregory v. City of Wheaton, 23 Ill2d 402.) And although a zoning ordinance may be valid in its general aspects, yet in some circumstances involving a particular piece of property it may be so clearly arbitrary and unreasonable as to result in confiscation in violation of the constitutional rights of the owner. (Petropoulos v. City of Chicago, 5 Ill2d 270.) In determining whether or not a zoning ordinance is arbitrary, unreasonable or capricious in its application to a given parcel of land, among the factors to be taken into consideration are the character of the neighborhood, existing uses and zoning of nearby property, the amount by which property values are decreased, the extent to which the diminution in value promotes the public health, safety, morals or welfare, the relative gain to the public as compared with the hardship imposed upon the individual property owner, the suitability of the subject property for the purpose for which it is zoned, and the length of time the property has remained unimproved, considered in the context of the land development in the area. (Myers v. City of Elmhurst, 12 Ill2d 537.) No single factor is controlling but each must receive due consideration, and the fact that there may be a difference of opinion among expert witnesses as to the scope and impact of the various factors does not require a finding that the reasonableness of the ordinance is debatable. (Hartung v. Village of Skokie, 22 Ill2d 485.) And though there is a presumption of validity in favor of zoning ordinances, where it is clearly and affirmatively shown that a particular ordinance is unreasonable and confiscating in its application, we will not hesitate to declare it unconstitutional. Northern Trust Co. v. City of Chicago, 4 Ill2d 432.”

As previously noted, the “Marathon” gasoline station is at the southwest corner of Skokie and Lake, the east end of the subject block on Lake Avenue, and we think the instant case comes within the pronouncements made in “Marathon,” 27 Ill2d 116, 124, 188 NE2d 33 (1963):

“Applying the accepted tests to the testimony and exhibits in the record, it is plainly apparent that plaintiff’s property has little suitability or value for the purpose for which it is zoned. The tremendous volume of traffic at the intersection and the extensive commercial uses at two of its corners are factors which in themselves do much to cause the property to be unfit and undesirable for residence purposes and demonstrate the unreasonableness of the classification. . . . We have consistently held that zoning ordinances restricting an area to residential use are void as applied to property within the area which is so situated in relation to a commercial zone as to render it peculiarly unattractive and of little value for residential use.”

Applying the foregoing tests here, we believe the evidence of plaintiffs overcame the presumption of validity that attached to the ordinance. The difference of opinion on the reasonableness of the restriction, the lack of community need, the immediate traffic conditions, and the lack of evidence as to the proposed use of the balance of the land by Texaco, examined singly or collectively, are not determinative factors here.

We think it is apparent that plaintiffs’ property has little suitability or value for the purpose for which it is zoned. The volume of traffic on Lake Avenue and the nearby extensive commercial uses are factors which, in themselves, do much to cause the instant property to be unfit and undesirable for residence purposes. These factors demonstrate the unreasonableness of the classification and have placed the subject property in a position such that it takes its character from Lake Avenue and from commercial uses in the vicinity, including the Marathon station at the east end of the block.

Considering the entire record, and for the reasons stated, we conclude that defendant’s ordinance is unconstitutional and void as applied to plaintiffs’ property, and the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. JUSTICE BURMAN

text:
    Chicago Bridge & Iron Company, a Corporation, Plaintiff-Appellant, v. Reliance Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 52,925.
    First District, First Division.
    January 13, 1969.
    Winston, Strawn, Smith & Patterson, of Chicago (Calvin Sawyier, Richard A. Barton, Robert G. Lane and Charles 0. Ziemer, of counsel), for appellant.

      Dent, Hampton & Doten, of Chicago (John P. Hampton, Roger D. Doten, Louis Linten Dent and Edward P. McNeela, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The Chicago Bridge & Iron Company (hereinafter sometimes called “plaintiff”), as subcontractor to Taheny Brothers Company (hereinafter sometimes called “Taheny”), filed suit against defendant Taheny as general contractor to the Chicago Transit Authority and against Reliance Insurance Company (hereinafter sometimes called “Reliance”) as surety for the general contractor on a payment and performance bond given by Taheny to the CTA pursuant to sections 1 and 2 of the Payment Bond Statute (Ill Rev Stats, c 29, §§ 15, 16). In its four-count complaint, plaintiff sought to recover from the defendant the sum of $30,200.50 for work and material supplied by the plaintiff in erecting a water tank at facilities being constructed by the CTA in Forest Park, Illinois.

The pertinent facts alleged in the Complaint are that the plaintiff had received a subcontract from the general contractor, Taheny Brothers Company, for building an elevated water storage tank. The subcontract incorporated the provisions of the prime contract by reference, and those provisions required the furnishing of lien waivers as a condition precedent to a right to payment. The plaintiff had completed most of the work required by the subcontract prior to the time that the principal contractor was declared to be in default by the CTA, and was at that time entitled to payment of $30,200.50, for which it had given “lien waivers” to Taheny as required by its subcontract. Taheny was paid by the CTA for that portion of the project represented by the subcontract work, but the plaintiff was never paid by Taheny.

In Count IV of the plaintiff’s complaint it was alleged that under and by virtue of the performance and payment bond executed by the defendant, Reliance Insurance Company, said defendant was obligated to pay plaintiff’s claim. Reliance moved to strike Count IV and to dismiss plaintiff’s suit against it on the ground that plaintiff executed a partial release of lien of its claim to the general contractor and was, therefore, precluded from recovery against the bonding company. An order was entered striking Count TV of the Complaint and plaintiff’s suit against Reliance was dismissed. The order recited that plaintiff elected to stand on Count IV and that “[t]here is no just reason for delaying enforcement or appeal of this Order.” On the bottom of the order appears the notation of the trial judge to see Board of Education v. Hartford Accident & Indemnity Co., 60 Ill App2d 320, 208 NE2d 51. This appeal involves only one defendant, the bonding company.

The special statute here involved is found in sections 1 and 2 of chapter 29 of the Ill Rev Stats (hereinafter referred to as the Payment Bond Statute) and reads, in part pertinent to the issues raised in the case at bar, as follows:

“§ 1. All officials ... of this State, or of any political subdivision thereof in making contracts for public work . . . shall require every contractor for such work to furnish, supply and deliver a bond . . . to the political subdivision thereof entering into such contract . . . with good and sufficient sureties, and in an amount to be fixed by said officials . . . and such bond, among other conditions, shall be conditional for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise.
“Each such bond shall be deemed to contain the following provisions whether such provisions be inserted in such bond or not:
“The principal and sureties on this bond agree to pay all persons, firms and corporations having contracts with the principal or with subcontractors, all just claims due them under the provisions of such contracts for labor performed or materials furnished, in the performance of the contract on account of which this bond is given, when such claims are not satisfied out of the contract price of the contract on account of which this bond is given, after final settlement between the officer, board, commission or agent of the State or of any political subdivision thereof and the principal has been made.”
“§ 2. Every person furnishing material or performing labor ... as a sub-contractor for any contractor . . . where bond shall be executed as provided in this Act, shall have the right to sue on such bond . . . provided, however, that this Act shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract, as the case may be, liable to such sub-contractor, materialman or laborer to any greater extent than it was liable under the law as it stood before the adoption of this Act. . . .”

The plaintiff informed us that the specific purpose of this appeal is to challenge the validity and general applicability to public construction projects of the decision of the Appellate Court for the Third District in the case of Board of Education v. Hartford Accident & Indemnity Co., 60 Ill App2d 320, 208 NE2d 51, “and to establish that in the circumstances under which public improvement construction contracts are customarily carried on, at least in the metropolitan Chicago area, the required bond guaranteeing payment by the general contractor to subcontractor applies whether or not the subcontractors have executed so-called lien waivers for delivery to the owner-municipality.”

It is the plaintiff’s contention that the bonding company received premiums for writing a bond under which it unequivocally guaranteed that the general contractor would pay each subcontractor for the latter’s work. “The point is that the insuring of the honesty of the general contractor in paying over to the subcontractor is not the responsibility of the subcontractor, but is precisely the risk that the bonding company undertook in writing this payment bond with the general contractor as its principal and the subcontractor as beneficiary.” Furthermore, the plaintiff argues, the purpose of the Payment Bond Statute is to protect subcontractors and the only time they need protection is when they have given lien waivers in the customary practice of the industry. It is the position of the plaintiff that the loss of the subcontractor’s lien rights is clearly made immaterial under the statute by the express provision that the statute operates to require payment by the surety to subcontractors “when such claims are not satisfied out of the contract price of the contract on account of which this bond is given.”

In Board of Education v. Hartford Accident & Indemnity Co., 60 Ill App2d 320, 208 NE2d 51, the Appellate Court affirmed a judgment in favor of the bonding company stating:

“Defendant, Hartford, ... by reason of the relationship of the parties here as surety and assured, had a right exercisable at any time, to pay plaintiff’s claim and to be subrogated thereby to its rights of lien against public moneys in the hands of the School District. By extinguishing this right through the delivery of partial waiver certifying payment, which induced the release of public moneys, as plaintiff intended, plaintiff is estopped by its own conduct, pro tanto, from recovering against Hartford.”

60 Ill App2d 320, 324, 208 NE2d 51. There, as here, the subcontractor argued that the Payment Bond Statute provided an additional remedy independent of lien rights and that public policy required sureties on statutory bonds to satisfy claims of subcontractors, notwithstanding the execution of lien waivers. The Appellate Court concluded, however, and we agree, that the statute does not contemplate liability in the case where a claimant has voluntarily prejudiced the rights of the surety.

Plaintiff concedes that one of the undeniable general rules of equity is that a surety is released to the extent that the creditor voluntarily releases a security for the debt to which the surety might have been subrogated. Plaintiff, however, disagrees with Hartford that a security for the debt was released by the waiver of the lien. “This conclusion is mere abstraction, quite contrary to the actual legal and factual situation. For the subcontractor’s so-called lien is, as a practical matter, illusory to begin with under the manner in which public construction is customarily carried on, as alleged in the Complaint.” They point out that the only construction lien in respect to public improvements is given to subcontractors. It is urged that the subcontractor, however, has no legal claim to payment unless and until he tenders lien waivers. This the plaintiff maintains is the customary practice in the industry and is known to the bonding company. Thus, the subcontractor’s lien rights are necessarily waived in the act of establishing any claim to payment at all. Plaintiff concludes that the contention of the bonding company that a security was released by plaintiff to the bonding company’s prejudice is only an abstraction, “not an actual, substantial prejudice that would bring into play the general equitable rule of the surety being released to the extent that his security has been materially prejudiced by the voluntary action of the creditor.”

Plaintiff also would have us reject the decision in the Hartford case on the grounds that it is a decision from a district outside a large city like Chicago where the custom and usage might be different and that matters presented in the instant case were not presented in Hartford for consideration. We are not so persuaded. From a reading of Hartford we believe that the Appellate Court considered the same contentions made by the plaintiff in the case at bar, and concluded that plaintiff released substantial lien rights given under section 23 of the Mechanics’ Lien Act (Ill Rev Stats, 1967, c 82, § 23). The general contention of the plaintiffs might be more skillfully pleaded in the instant case, but basically the sole issue in both cases is the voluntary waiver by the subcontractor of his lien. We have no reason to believe that the Appellate Court in Hartford did not take into consideration the conditions that exist between subcontractors and contractors in their custom and usage of executing waiver of liens to the general contractor before payment.

We do not have here a situation where a general contractor refuses or is unable to pay the subcontractor. In that situation the subcontractor could refuse to sign a waiver of lien preserving his rights under the Payment Bond Statute and thus could avoid injuring the surety. The statute does not contemplate liability in our judgment, however, in a case where a claimant has voluntarily prejudiced the rights of the surety.

Plaintiff states that the argument made by Reliance Insurance Company was made and rejected in Prepakt Concrete Co. v. Fidelity & Deposit Co. of Maryland, 393 F2d 187 (7th Cir 1965). In that case Prepakt Concrete Company was a subcontractor to Mid-Continent who in turn was a subcontractor for Goethe Building Corporation, the general contractor. The project involved the construction of a high-rise apartment building on property owned by Continental Illinois National Bank, as trustee. Fidelity and Deposit Company of Maryland furnished a labor and material bond for Mid-Continent. In Prepakt the plaintiff partially waived its lien at Mid-Continent’s request in contemplation of receiving a partial payment. The waiver was delivered to Goethe and Continental Illinois National Bank with a letter of explanation that Prepakt was not paid. The Court of Appeals rejected Fidelity’s argument that the release of money was motivated by reliance on the plaintiff’s waiver, thus depriving Fidelity of that amount which otherwise would have been available to mitigate the surety’s losses. The Court held that when Goethe paid the money it knew that Prepakt had not been paid and the statement that Prepakt had received the money was not true. “It also knew that the waiver was not an effective release of the lien on the funds due under the contract. We think Goethe took the risk that Mid-Continent might not pay Prepakt and should have looked to the proper application of the money it paid to Mid-Continent.” We have concluded that Prepakt is inapposite to the facts in the case at bar. Also, it does not appear in the opinion of the Prepakt case that the case of Board of Education v. Hartford Accident & Indemnity Co., 60 Ill App2d 320, 208 NE2d 51, was considered.

In 50 American Jurisprudence, paragraph 109, page 976, the rule is stated:

“§ 109. Generally.—A surety is entitled to be subrogated to the benefit of all the securities and means of payment under the creditor’s control, and so, in the absence of assent, waiver, or estoppel, he is generally released by any act of the creditor which deprives him of such right. The creditor must for a surety’s benefit apply to his debt all moneys and securities of the principal within his control which he has the right to apply, and if he voluntarily surrenders or releases the same, the surety is discharged pro tanto. . . .”

Plaintiff in the instant case had an inchoate lien on certain “public funds” held by the Chicago Transit Authority for materials furnished and labor performed as a subcontractor in the construction of the water tank. The result of the execution of the release of lien was the loss of plaintiff’s lien rights. We do not agree that the lien rights were “illusory” or that they were only an “abstraction.” We believe that the voluntary release of the security materially prejudiced the rights of the bonding company. We are satisfied that Board of Education v. Hartford Accident & Indemnity Co., 60 Ill App2d 320, 208 NE2d 51, is squarely in point and is applicable here.

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

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.


text:
    Richard A. Lange, Plaintiff-Appellee, v. Coca-Cola Bottling Company of Chicago, Inc., Defendant-Appellant.
    Gen. No. 52,967.
    First District, First Division.
    January 13, 1969.
    Rehearing denied February 6,1969.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John L. Kirkland and D. Kendall Griffith, of counsel), for appellant.
    Powers McGuire, of Chicago (Francis X. Kiley and Murray McGuire, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a summary judgment in favor of the plaintiff on the issue of liability in an automobile collision involving an automobile driven by plaintiff and a truck operated by defendant’s employee. The defendant also appeals from the judgment entered on the jury’s verdict of $90,000 in favor of the plaintiff. No questions are raised on the pleadings.

Two lawsuits were commenced as a result of the collision of a truck owned by defendant, Coca-Cola, with an automobile operated by plaintiff, Richard A. Lange. Coca-Cola sued Lange for property damage to its truck and Lange sued Coca-Cola for personal injuries and for property damage to his automobile. The two causes were not consolidated for trial. Coca-Cola’s suit against Lange was tried without a jury and resulted in a judgment of not guilty in favor of Lange. This judgment was affirmed on appeal. When Lange’s suit against Coca-Cola was called for trial Lange moved for summary judgment on the issue of liability on the ground that this issue had been determined in Coca-Cola’s property damage suit and was binding on the parties in Lange’s action for personal injuries. The trial court granted the motion and entered judgment in favor of Lange against Coca-Cola on the issue of liability.

The opinion handed down by the Appellate Court in Coca-Cola Bottling Company of Chicago, Inc. v. Lange, 80 Ill App2d 100, 224 NE2d 628 (abstract), the property damage action brought by Coca-Cola against Lange, reveals the following occurred:

“In the late afternoon of March 7, 1962, . . . [Coca-Cola’s] truck was travelling in an eastward direction on Huntley Road ... in Algonquin, Illinois .... [Lange] was driving his auto in the opposite direction on the same road. It was snowing at that time and the surface of the road was completely covered. . . .
“. . . [Lange] said that: he was travelling at a rate of speed of from 15 to 20 miles per hour; it was snowing and the visibility was very poor; there had been an accumulation of snow for the last week or so; he was driving as close to the snowbank on his right as he could; he was unable to say whether or not he was over the center line because the road was completely covered with snow; the driver’s door of his car was hit by the side of the truck; the door was completely demolished; the front of the car was not damaged; he did not remember anything after the impact, and someone took him to a hospital.
“The driver of . . . [Coca-Cola’s] truck testified that: he was driving about 20 miles per hour and was in his proper lane; when he noticed . . . [Lange’s] car coming toward him he veered his truck to the right, but that . . . [Lange’s] auto struck him at a time when . . . [Lange’s] car was about 4 or 5 feet into the eastbound lane; the road was covered with snow so he could not see the center line; the truck was damaged on the left side; . . . [Lange’s] auto was damaged on the left-front side, and that the truck came to a stop facing in a southeasterly direction.”

It is the contention of the defendant Coca-Cola that plaintiff was not entitled to a summary judgment on the issue of liability. It is argued that a suit for injury to the person and a separate suit for damage to property are two distinct causes of action even where the injury and damage were caused by the same negligent act. The defendant stresses that because the suit by Coca-Cola against Lange and Lange’s action against Coca-Cola involve separate causes of action, res judicata is not involved. Instead, estoppel by verdict applies. However, before this latter doctrine may be used, the defendant maintains, the controlling issue material to the determination of both causes must have been raised and determined in the former litigation. The defendant points out that there were no specific findings in the prior suit and in the absence of such findings it does not conclusively appear that the mutual issues of fact in the two law suits were decided in Lange’s favor.

In Smith v. Bishop, 26 Ill2d 434, 187 NE2d 217, relied on heavily by the defendant, the Supreme Court laid down the following general rules as to when the doctrine of estoppel by verdict applies:

“When the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. Where some controlling fact or question material to the determination of both causes had been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. . . . [W]here the subsequent litigation is upon a different claim or cause of action, the determination is not conclusive unless the precise question in controversy had been raised and determined in the former litigation.”

26 Ill2d 434, 436-37, 187 NE2d 217. In the Smith case the Supreme Court reversed a summary judgment holding that there was no identity of parties and therefore, the doctrine of estoppel by verdict did not apply.

In support of his motion for summary judgment, Lange’s attorney filed a verified affidavit which stated that the lawsuit arose out of a collision; that the sole question to be decided in the lawsuit was which party crossed the center line of Huntley Road; and that the two lawsuits involved the same questions of fact with the sole exception being the amount of damage sustained by the respective parties. No counteraffidavit was filed by Coca-Cola.

It is undisputed that the parties to both lawsuits are identical and that the same occurrence is involved in both. The defendant argues, however, that in its suit against Lange, it had the burden of proving: (1) it was free of contributory negligence; (2) Lange was negligent; (3) Coca-Cola’s truck was damaged; and (4) Lange’s negligence was the proximate cause of that damage. If Coca-Cola failed to prove any one of these issues the judgment would have to be in favor of Lange. In his suit against Coca-Cola Lange has the burden of proving: (1) Lange was free from contributory negligence; (2) Coca-Cola was guilty of negligence; (3) Lange was injured; and (4) Coca-Cola’s negligence was the proximate cause of those injuries. Consequently the defendant says that if the judgment in Coca-Cola’s property damage suit was based on Coca-Cola’s failure to prove either that its truck was damaged or that Lange’s negligence was the proximate cause of that damage, then the judgment in favor of Lange would not be determinative of any of the issues involved in Lange’s suit against Coca-Cola. Also, in the prior property damage action, Lange could have been found guilty of negligence and still have had judgment in his favor if Coca-Cola was also found negligent.

Both lawsuits were filed in 1962. Lange’s action was filed in the Circuit Court and Coca-Cola’s was filed in the Municipal Division of the Circuit Court. The parties proceeded to trial in the Municipal Division on Coca-Cola’s lawsuit without consolidating the two causes. The controlling fact or question in both of these cases is which of the two parties crossed the center line of Huntley Road. This question of fact, in our opinion, has been adjudicated in the earlier trial involving damage to Coca-Cola’s truck. As stated in Smith v. Bishop, 26 Ill2d 434, 187 NE2d 217, where the adjudication in the first cause is properly presented it is conclusive of the same question in the later suit and is an absolute bar to relitigating that question. In our judgment, whether the defendant or the plaintiff was at fault in the case at bar, has been fully litigated and adjudicated in the prior suit and the defendant in this cause should not be permitted to relitigate the matters there decided. The summary judgment of the Circuit Court in favor of the plaintiff on the issue of liability is, therefore, affirmed.

We now consider whether trial errors occurred which were so prejudicial to the defendant that a new trial on the issue of damages is required. We turn first to the contention that the defendant was irreparably prejudiced by the unresponsive answers of a doctor. The record shows that Dr. Donald Atlas was called by the plaintiff. He was qualified as a specialist in internal medicine and testified that he was a consulting internist and cardiologist. He examined plaintiff for the first time shortly before he testified. He stated that the plaintiff’s heart was of normal size, but that a systolic murmur was audible. From his examination of an electrocardiogram taken of the plaintiff, he testified that it showed continuous defects, which were evidence of heart damage, “and it shows an advanced degree of heart disease.” His diagnosis was that the plaintiff was afflicted with or suffering from an advanced degree of heart disease, “myocardial insufficiency.”

After many other questions, Dr. Atlas was given a hypothetical question. He answered that in his opinion there might and could be a causal connection between the accident as described and the condition of ill-being described in the question. He said he based his opinion on the precise diagnosis of the kind of heart attack plaintiff had within a few hours after the accident. He stated that, in his opinion, the condition was permanent and that the plaintiff would need medical treatment for the rest of his life. He was then asked: “Doctor, again assuming the same hypothesis and based upon a reasonable degree of medical certainty and from a medical and surgical point of view, have you an opinion as to a prognosis.” The following took place in the presence of the jury.

“A. Yes, I have an opinion as to the prognosis.
“Q. And what is that opinion.
“A. I’m reluctant to give the opinion with the wife in the room.”
Mr. McGuire (plaintiff’s attorney) “Will you step out of the room?” (Mrs. Ella Lange left the courtroom.)
Mr. Kirkland (defendant’s attorney) “I object to that answer.”
The Court: “No, I think he has qualified himself as able to give a prognosis.”
The Witness: “May I answer?”
The Court: “Yes, you may now.”
The Witness: “A. The prognosis is extremely bad. I think this man’s life expectancy is very short and the more I’m in practice, the less I can give an estimate in months or years but I’d estimate that it would be less than two or three years.”
Mr. Kirkland: “I move to strike the answer as based on conjecture and”—
The Court: “Yes, yes, I realize by virtue of your training and experience and all, this is your opinion”—
The Witness: “Yes.”
The Court: “But the Good Lord has something to do with that.”
The Witness: “Eight, right. That’s why I’m reluctant to say. I’ve been wrong so many times.”
Mr. Kirkland: “Is the answer stricken?”
The Court: “Yes, it is stricken.”
Mr. Kirkland: “Will the jury be instructed to disregard the answer, your honor?”
The Court: “The jury will disregard the Doctor’s answer as to the predicted length of time that this man may live.”

We agree with the defendant that the remark by Dr. Atlas that he was reluctant to give an opinion with the plaintiff’s wife in the courtroom and the withdrawal of the wife from the room caused the defendant irreparable prejudice even though the answer was stricken and the jury told to disregard it. The episode improperly emphasized the Doctor’s prognosis. We do not think the impact of this improper conduct by a specialist in the presence of the jury could possibly be erased from the minds of the jurors, even though the answer was stricken. Consideration by the jury as to whether or not there was a causal connection between the accident and the plaintiff’s heart condition should not be influenced by such conduct by witnesses and attorneys. In a close question such as the one in the present case it is of the utmost importance that jury not be inflamed or improperly influenced.

The aforementioned error was further compounded during argument to the jury by plaintiff’s counsel. He began his argument by saying:

“But in any event you may wonder where are the Langes at in a crucial stage in this case, and the answer to that is this—I don’t have eyes watering in my nerves. Dr. Atlas preferred to have Mr. & Mrs. Lange out of the courtroom. So do I prefer to have these people not to be here this morning. So I took the liberty of calling the Langes last night and told them something unexpected came up that the court wouldn’t start until about 2:30 this afternoon. So they would have plenty of time to hop on that 1:05 train.”

This argument was unwarranted particularly in view of the fact that the Doctor’s estimated statement that plaintiff’s life expectancy was short, less than two or three years, was stricken and was not in evidence. This statement could only be made to appeal to the sympathy of the jury and create passion and prejudice against the defendant. Plaintiff argues, however, that no objection was made to this argument at the time of trial. As stated in Belfield v. Coop, 8 Ill2d 293, 313, 134 NE2d 249:

“If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.”

It is understandable why defendant’s counsel hesitated to raise an objection to the content of the argument in the presence of the jury. Such an objection would only have served to emphasize the improper argument and further prejudice the defendant.

We believe the foregoing errors to be sufficiently substantial and prejudicial to defendant’s case to warrant a new trial. We have made no comment regarding other improper arguments made to the jury by plaintiff’s lawyer, but assume they will not recur. However, since this cause must be tried again, we deem it necessary to consider other errors raised by the defendant.

The defendant complains that the hypothetical question propounded to Dr. Atlas omitted material facts. The record reveals that plaintiff’s father died of a heart attack at the age of 55 and that his mother had heart trouble after she was 70. Dr. Atlas testified that one of the factors contributing to coronary heart disease was heredity. He also testified that plaintiff weighed 180 pounds, that plaintiff’s height was five feet, eight inches, and that another factor contributing to coronary heart disease was obesity. The hypothetical question should have included the fact that both of the plaintiff’s parents had heart trouble and although it included the plaintiff’s weight, it should also have referred to the plaintiff’s height. The objection to the omission of these facts was improperly overruled. Where the evidence is undisputed, as is the situation here, the hypothetical question must contain all of the facts and must not ignore those material facts which would affect the opinion of the expert witness. Sanitary Dist. v. Industrial Commission, 343 Ill 236, 243, 175 NE2d 372.

The defendant also raises as error that the court improperly informed the jury of the weight he gave certain evidence. During the objection to the aforementioned hypothetical question the following took place in the presence of the jury:

Mr. Kirkland: “And the father and mother of the plaintiff had both had heart trouble.”
The Court: “I didn’t even give that elementary consideration.”
Mr. Kirkland: “I understand this Doctor to testify that one of the first things that are important is heredity.”
The Court: “That’s his opinion. That is his opinion. I don’t believe that at all.”

It is axiomatic that it is the jury’s function to weigh the evidence and the verdict must not be based on the opinion of the judge to the prejudice of either litigant. Bailey v. Babcock, 352 Ill 231, 235, 185 NE 602. It was error for the court to make this remark which indicated his opinion on a material fact in issue. Illinois Cent. R. Co. v. Souders, 178 Ill 585, 592-93, 53 NE 408.

There is no precise rule by which an award of damages can be fixed in an action for personal injuries. Each case is to be determined on its own particular facts. The goal of an award for damages is fair and reasonable compensation. It cannot be said that the aforementioned errors could not have added to plaintiff’s damages. It is the province and duty of the courts to see that every litigant has a fair trial. In the instant case, where the issue of personal injuries was a close question, the incidents enumerated had a prejudicial effect on the jury which cannot be measured. We, therefore, hold that in the interest of justice the matter of damages must be retried.

For the reasons stated the summary judgment on the issue of liability is affirmed. The judgment in the amount of $90,000 in favor of plaintiff for his personal injuries is reversed and remanded for a trial on the issue of damages only.

Affirmed in part and reversed and remanded in part.

ADESKO, P. J. and MURPHY, J., concur.


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fannie Staples, et al., Defendants-Appellants.
    Gen. No. 53,025.
    First District, Second Division.
    January 14, 1969.

      Devoe, Shadur, Mikva & Plotkin, of Chicago (Robert Plotkin and Robert C. Howard, of counsel), for appellants; William G. Clark, Attorney General of State of Illinois, of Springfield (Fred G. Leach, Assistant Attorney General, John J. Stamos, State’s Attorney of Cook County, of Chicago, Elmer C. Kissane and Anthony J. Onesto, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herman Burks, Defendant-Appellant.
    Gen. No. 51,918.
    First District, Third Division.
    January 16, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz 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 Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Herman Burks was found guilty of rape by a jury and was sentenced to the penitentiary for a term of not less than eight years and not more than thirteen years.

He contends that his conviction should be reversed or in the alternative, reversed and remanded, because his identification was insufficient to sustain a finding of guilty; the trial court permitted hearsay testimony concerning his identification; the court restricted the cross-examination of a State’s witness, and the State turned over police reports to his counsel in the presence of the jury.

The prosecutrix, a housewife, lived in a large, courtyard-type apartment building in Chicago. At approximately 2:30 in the afternoon of April 4, 1966, she left her apartment to go to a grocery store. When she got to the front of the building, she noticed that she had forgotten her purse and went back to get it. As she approached the entrance of the building, she saw a man, whom she later identified as the defendant, standing nearby. She hurried past him and entered the hallway, which was fifteen feet long. He followed her into the building, through the hallway and to the stairway which led to her second-floor apartment. When they reached the stairs she stopped to let him pass but he placed a gun in her back, cautioned her not to scream and told her to lie down and remove her underclothing. He then loosened the light bulb overhead and raped her.

Footsteps were heard coming down the stairs, and he fled after warning that he would kill her if she said anything. The footsteps were those of her sister. She whispered to her sister to go back and they went upstairs and reported the rape to the police.

The next morning as the prosecutrix looked out the window she saw her assailant walking through the alley. She immediately telephoned the police. They came to her home but arrived too late to catch the man. When they did not return with him she went out herself and saw him sitting in a liquor store. She rushed back home and again telephoned the police who came upon her call. She got in their car and was being driven toward the liquor store when she saw the man coming down the street. She pointed him out and the officers arrested him. One of the officers testified that when he asked Burks to come to the car, he replied, “I did not do anything to that woman.” The officer said, “nobody accused you of doing anything.” Burks denied making the statement.

Burks was asked at the police station where he was about 2:30 in the afternoon on the day before. One interviewing officer testified that he said he had worked all day at a glass company, but he could not remember its address or the name of his foreman. A few minutes later he stated he had been working for a different glass company but did not answer when asked the location of that company. Another officer who interrogated Burks testified that he first stated he had worked for a glass company on April 4th, but then said he was unemployed and had spent the day baby-sitting at the home of his common-law wife.

At his trial Burks denied the rape and denied telling the officers that he was working for a glass company or was baby-sitting. He testified that on the day of the crime he was in the apartment of a friend who lived in the same building as the prosecutrix; he said that he was there, except for short periods of time, from 10:00 a. m. to 6:00 p. m., drinking beer and playing records. He said that when he was arrested the prosecutrix did not think he was the right man but said that her assailant had a jacket and hat like his.

The friend corroborated Burks’ testimony, and Burks’ mother testified that she and another woman talked to the prosecutrix the day her son was arrested and she said she was not sure he was the man who raped her. The prosecutrix denied making such a statement.

In support of his contention that the identification was insufficient to sustain a finding of guilty, the defendant points out that the conviction rests upon the uncorroborated testimony of the prosecutrix; she could not have had a good look at the man who attacked her because she said she rushed past him when she reentered the building and she was assaulted in the darkest part of the stairwell; she did not smell alcohol on the rapist whereas Burks had been drinking all that day, and his explanation of his whereabouts was uncontradicted.

The testimony of a rape victim, even though uncorroborated, is sufficient to sustain a conviction if it is clear and convincing. People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962); People v. Scott, 82 Ill App2d 109, 227 NE2d 72 (1967). The testimony of the prosecutrix was clear and it was convincing. She first saw the defendant in daylight, looked at him again when she paused to let him pass and saw him throughout the rape. Although she testified that he unscrewed a light bulb and that the attack took place in the darkest part of the hallway, she also said it was never too dark to see. There were two lights in the hallway—one of them just over the stairs; there were two doors in the hallway—both were glass; there were two windows—one in the corner of the hallway opposite the stairway and the other in the stairwell about three stairs above the ground floor. She saw the features of the defendant so well that she recognized him at once when she saw him the next day although she was at a window in her apartment and he was some distance away in an alley. The police did not have to bring suspects to her or have her view them in a lineup; she led the police to the defendant. The argument that her identification is weakened because she did not smell alcohol on the defendant presupposes that he was telling the truth about having been drinking the day of the rape. The jury did not have to believe his testimony in this respect anymore than it had to believe his alibi. His credibility and that of his witnesses was for the determination of the jury. It is the province of the jury to determine the facts and which witnesses are telling the truth. The jury chose to believe the prosecutrix; her testimony was convincing and unshaken and the finding of the jury will not be overturned.

Nor do the alleged trial errors warrant remandment of the case for a new trial. The first of these is said to have occurred during the testimony of one of the arresting officers. He testified that as they were driving down the street toward the liquor store the prosecutrix exclaimed, upon seeing the defendant, “That is the man right there.” It is argued that this statement was hearsay and, as such, inadmissible. No objection was made to the officer’s testimony, but even if there had been there would have been no error in overruling the objection. The police and the victim were searching for the rapist and the victim’s exclamation upon unexpectedly seeing him on the street was spontaneous—there was no time for contrived fabrication. Cf.: People v. Poland, 22 Ill2d 175, 174 NE2d 804 (1961); Lander v. People, 104 Ill 248 (1892). More important, the prosecutrix had said the very same thing herself when she was on the witness stand. She testified that she had pointed out the defendant to the officers when they came upon him. She confronted the defendant in court and she was extensively cross-examined. The defendant thus had the opportunity to test her declaration, and its repetition by the police officer, under these circumstances, did not violate the hearsay rule which is designed not to exclude all out-of-court statements but only those which the party against whom they are offered has no opportunity to test by cross-examination. People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963).

The complaint that the trial court unduly restricted the cross-examination of one of the arresting officers is without merit. The defendant’s attorney questioned the officer about his having known the defendant before his arrest and asked whether he had suggested the defendant’s description to the prosecutrix during their conversation just prior to his apprehension. Objections to these questions were properly sustained. The cross-examination was based on the false premise that the officer may have influenced the prosecutrix’ identification of the defendant. The fact of the matter was that the police had nothing to do with her identification. She saw her assailant two times after the rape and called the police each time to tell them that she had seen him. She identified him before the police apprehended him as well as afterwards. It was she who guided them to him. The defense counsel’s questions on this subject were irrelevant. The defendant was given full opportunity to cross-examine all witnesses and in no instance was the examination improperly restricted.

The defendant’s final contention is that it was reversible error for the prosecutor to turn over police reports to his counsel in the presence of the jury. As part of the State’s rebuttal, a police officer testified that the defendant, when interrogated after his arrest, first said he was working during the time of the crime at a glass company and then changed his story to say that he was at the home of his common-law wife. During cross-examination the defendant’s counsel asked the witness whether he had recorded this information. Thereupon the prosecutor tendered to the defense a two-page report prepared by the witness. It was accepted by the defense without objection. Neither the defense nor the State made any further reference to the report, either during the trial or in argument.

Tendering the unrequested police report to the defendant’s counsel placed upon him the unfair burden of either using the report to impeach the witness or running the risk that the jury would assume that the report corroborated the witness. If there was nothing impeaching in the report there was no way the risk could be avoided. This maneuver by the prosecution has been held to be error. People v. Lowe, 84 Ill App2d 435, 228 NE2d 563 (1967); People v. Beard, 67 Ill App2d 83, 214 NE2d 577 (1966). In this case, however, the error does not merit reversal. The defendant’s counsel made no objection to the submission of the document and no comment was made by the prosecutor pertaining to it when it was tendered or thereafter. The incident, while improper, did not substantially affect the right of the defendant to a fair trial. People v. Bickham, 91 Ill App2d 465, 235 NE2d 400 (1968).

The judgment of conviction is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    In the Matter of the Estate of Arthur G. Corbin, Deceased, Defendant-Appellant, v. McKey and Poague, Inc., as Agent for Sherry Apartments, Inc., Plaintiff-Appellee.
    Gen. No. 52,547.
    First District, Third Division.
    January 16, 1969.

      McKenna, Scovel & Gannon, of Chicago (Joseph D. Gannon, of counsel), for appellant.
    Yale P. Bass, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The estate of the decedent appeals from a judgment in the Circuit Court, Probate Division, which granted a portion of the lessor’s claim for rent alleged to be due the lessor from the estate.

The decedent, Arthur Corbin, died on November 5, 1966, at which time he was the lessee of an apartment for a term ending on September 30, 1968. The lease was binding on the heirs, executors, and assigns of the lessor and of the lessee. At the time of the decedent’s death, the rent had been paid for the month of November. Joseph D. Gannon, an attorney, was named executor in the will but was not appointed as executor by the Probate Division until January 23,1967.

On November 8, 1966, the named executor attempted to gain entry into the apartment but was refused entry on the ground that he did not possess Letters Testamentary evidencing his appointment by the Probate Court. On that date, the lessor plugged the door lock to the apartment. On several occasions after November 8th, the executor attempted to gain access to the premises and was rebuffed until the Letters were finally issued on January 23, 1967. During this period, the lessor’s agents and the executor named in the will engaged in correspondence and communications during which the lessor’s agents indicated that the executor would be allowed to enter but later such entry was denied until the Letters Testamentary were issued. The apartment was rented to another tenant on April 15,1967.

The lessor filed a claim against the estate for the balance of the rent under the lease which amounted to $3,960. The estate counterclaimed for the security deposit of $330. The trial court allowed the lessor’s claim for rent for the period of December 1, 1966, to April 15, 1967, in the sum of $742.50 and allowed the estate a credit of $330 for the security deposit. The resulting judgment amounted to $412.50 in favor of the lessor. The estate appeals from this judgment on the ground that the estate should not be held liable for any rent from December 1,1966, to April 15,1967.

The estate contends that because the lessor deprived the named executor from access to and control of the apartment for over two and one-half months, the lessor thereby abrogated the lease and was therefore not entitled to further rent payments after the month of November, 1966. In its reply brief, the estate specifically argues that the denial of entry by the lessor constituted an eviction of the heirs and assigns of the decedent thereby relieving the tenant of the payment of future rent.

This court is of the opinion that the lessor’s act of plugging the door lock did not constitute an eviction so as to excuse all future rental payments. The manifest intent embodied in the lessor’s actions was to delay the estate’s right to possession of the premises until the proper Letters Testamentary had been issued. The record discloses no intent on the part of the lessor to permanently deprive the estate of its use and possession of the premises. There simply was no actual eviction in the instant case. A constructive eviction must be “something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the premises.” (Emphasis supplied.) Morgan v. Cook, 213 Ill App 172, 175.

However, there remains the issue whether rental liability was suspended during the time when the executor was denied access to the apartment prior to his appointment. The estate contends that section 79 of the Probate Act (Ill Rev Stats 1965, c 3, § 79) gives the executor named in the will the power and the duty to take possession of the apartment of the decedent-lessee prior to the issuance of Letters Testamentary. Section 79 reads in pertinent part:

“Before issuance of letters to an executor his power extends to the carrying out of any gift of the decedent’s body or any part thereof, to the burial of the decedent, the payment of necessary funeral charges, and the preservation of the estate;”. . . . (Emphasis supplied.)

The lessor asserts that the executor could have applied for Letters of Administration to Collect under section 105 of the Probate Act (Ill Rev Stats 1965, c 3, § 105) to protect and preserve the estate from the contingencies of waste and loss due to the delay in the issuance of Letters Testamentary. However, the relevant question before this court is the construction and applicability of section 79 and the determination of the executor’s power under section 79. Therefore, a consideration of section 105 is not essential to a proper disposition of this appeal.

The estate asserts that the executor’s preappointment power and duty to enter the decedent’s apartment was authorized by the statute’s extension of preappointment powers to “. . . the preservation of the estate.” The estate cites Faubel v. Michigan Blvd. Bldg. Co., 278 Ill App 159, in support of this contention. The case is distinguishable in some respects from the instant case since in the cited case there had been a wrongful conversion of the decedent’s personalty in the leased premises prior to the issuance of Letters Testamentary to the named Executrix. However, the court stated that the party named as executrix had, prior to the issuance of Letters Testamentary, a special “property right” in the personalty in the premises so as to maintain an action for trover for the lessor’s wrongful conversion. The court relied on the forerunner to section 79 in establishing this “property right.” The earlier statute was almost identical to the present statute except that the former statute employed the phrase “taking care of the estate” rather than “the preservation of the estate.” The court also expressly recognized that the executrix, under the statute, had a duty to preserve the property of the testator prior to the issuance of the Letters Testamentary.

It is the contention of the estate in the case at bar that this “property right” and obligation to protect the personalty of the decedent was not recognized and was frustrated by the lessor. It is argued that the lessor’s refusal to grant the executor access to the apartment prevented the executor from showing the apartment to prospective sub-lessees in order to protect the estate from loss from rent claims for the unoccupied apartment. This court can conceive of situations in which it would not be unreasonable for a lessor to seek further assurances of the regularity and propriety of one’s representations that he is the named executor before allowing him to gain entry to the decedent’s premises. This court can also conceive of situations in which it would be of the utmost urgency to allow such entry prior to the issuance of Letters. Under the facts of the instant case, we conclude that the lessor was not reasonable in denying access to the premises for over two and one-half months. The executor was a reputable attorney, and the lessor’s attorney had corresponded with him as such during this period.

We are of the opinion that this wrongful act of the lessor and his agents excuses the estate from rental liability for that period. The lessor argues that Paragraph Nine of the lease contains a waiver provision which will not excuse liability for rent. The relevant paragraph reads:

“Neither the Lessor nor his agents shall be liable for damages, to the Lessee or to any person claiming through Lessee (nor shall rent be abated) for injury to person or damage to or loss of property wherever located from any cause or for damage claimed for eviction actual or constructive; this provision includes particularly but not exclusively all claims arising from the building or any part thereof being or becoming out of repair including appurtenances, equipment, furnishings, fixtures or apparatus located in the demised premises or in the building or premises of which said demised premises are a part, or from any act or neglect of Lessor or his agents or of any tenant or occupant of such building or of the premises of which such building is a part, or of the neighboring property.” (Emphasis supplied.)

The cases are numerous which state that any doubt or ambiguity as to the meaning of language in a lease is construed most strongly against the lessor and in favor of the lessee. Exculpatory clauses are to be strictly construed against the party they benefit. (Stein v. YarnallTodd Chevrolet, Inc., 85 Ill App2d 228, 229 NE2d 331.) We will not construe the words “any act” in paragraph nine to be so all-inclusive as to mean that when a lessor wrongfully deprives a tenant of possession, the rental obligation is not abated. Such a result would be ludicrous and unconscionable. Since the withholding of possession was unjustified in the case at bar, the consideration for the payment of rent, namely the use and possession of the premises, was suspended for that period. See Cottrell v. Gerson, 371 Ill 174, 20 NE2d 74.

For the foregoing reasons, the judgment of the trial court is reversed in part and remanded with directions to limit the lessor’s recovery by excluding rental liability which accrued during the period when the executor was denied access to the apartment. Since the November rent had been paid by the decedent prior to his death and since the estate does not contest this payment, the estate is relieved of its obligation to pay rent for the period beginning on December 1, 1966 and terminating on January 23,1967.

Reversed in part and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Danner, Defendant-Appellant.
    Gen. No. 53,039.
    First District, Third Division.
    January 16, 1969.

      Walter La Von Pride, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was found guilty by a jury of the crimes of murder and attempt to commit robbery. He was sentenced to a term of 50 to 100 years on the murder charge and 7 to 14 years on the attempt charge, the sentences to be served concurrently. On appeal he contends that he was not proved guilty beyond a reasonable doubt, that the sentence of 50 to 100 years was excessive and that his legal representation was inadequate. He presented no evidence. The facts follow.

Fred Gardaphe, the deceased, owned and operated a pawnshop at 6 North Broadway in Melrose Park, Illinois, and lived in an apartment above the shop. His 12-year-old grandson Michael Gardaphe testified that on December 16, 1966, he had dinner with his grandparents in their apartment and that after dinner his grandfather went downstairs to the shop. About five minutes later Michael went downstairs and found his grandfather in the front part of the store talking to one Albert Schwab and his son. His grandfather went into a small room at the rear of the store to answer the telephone. That room which was not open to customers was separated from the rest of the store by a Dutch door and contained a safe, a cash register and merchandise which was being stored. Just then the defendant and another man ran into the store. Defendant ran into the back room while his partner held a gun on those in the front of the shop. Michael heard a noise, saw his grandfather fall to the floor and then heard both loud and soft shots. Defendant called out to his partner that he had been shot and his partner ran from the store. Michael looked over the lower half of the Dutch door and saw his grandfather struggling with the defendant. His grandfather was face down on the floor and the defendant was kneeling on top of him. Schwab and his son ran out of the store and Michael followed them. They ran to a store next door and told an employee there, J. A. Edgemon, to call the police and an ambulance. Michael and Edgemon then went back to the pawnshop. Edgemon entered the store, but defendant pointed a gun at him and told him to get out. Defendant crawled over the lower half of the door, fell to the floor, pointed the gun at Michael and crawled from the store, holding and pointing his gun.

Albert Schwab testified that he and his son were in the pawnshop with the victim and his grandson, that two men entered the store, that one went to the back room while the other held a gun on him and shortly thereafter he heard a noise in the back of the room and the man who had been holding the gun on him ran out through the front door.

J. A. Edgemon testified that he worked in a store near the victim’s pawnshop, that on the night in question Michael Gardaphe ran into the store and told him his grandfather was being hurt. Edgemon told his employer to call the police while he ran to the pawnshop. As he entered the shop the defendant pointed a gun at him and told him to get out. A few minutes later the defendant came out, fell on all fours and crawled away toward a set of railroad tracks.

Police Officer Fred Jackson testified that he went to the victim’s pawnshop in response to a radio call and was directed to a set of railroad tracks. Upon a search of the tracks he found the defendant lying face down about 200 feet from the pawnshop. He recovered a .38 caliber revolver which was protruding from defendant’s rear pocket. Police Officer Robert Kuhlmann testified he found a .25 caliber revolver in a pool of blood after the victim was removed from the scene.

Dr. John Belmonte, the Coroner’s physician, testified that his examination of the victim revealed a bullet wound on the right side of the neck, a bullet wound in the left thigh and multiple bruises, abrasions and lacerations. The bullet which struck the victim’s neck traveled upward and back and was removed from the left temple. It was a .25 caliber bullet and in the doctor’s opinion caused death. A .38 caliber bullet was removed from his thigh.

Defendant’s first contention is that he was not proven guilty beyond a reasonable doubt. He bases his contention on the fact that the gun found in his pocket was a .38 caliber revolver whereas the slug taken from the wound which caused the victim’s death was from a .25 caliber weapon. He also argues that the evidence fails to prove he was attempting to rob the pawnshop at the time so that he could not have been guilty of a felony murder.

If the evidence establishes that defendant was attempting to commit a forcible felony and the victim’s death was a result of that attempt, it is immaterial who fired the particular shot which killed the victim or whether the killing was intentional or accidental. People v. Grant, 313 Ill 69, 144 NE 813; People v. Connolly, 33 Ill2d 128, 210 NE2d 523; Ill Rev Stats, c 38, § 9-1 (a) (3) (1967), see Committee Comments. Here the uncontradicted evidence established that defendant and an accomplice entered the pawnshop; that while his accomplice held three witnesses captive with a gun, the defendant entered the rear of the shop where a safe, a cash register and merchandise were kept; that a struggle ensued between the victim and defendant; that several shots were fired which resulted in the victim’s death; that the accomplice fled when defendant called out he had been shot and that defendant himself attempted to escape and in the process threatened two persons with a gun. The only reasonable inference that can be drawn from these facts is that defendant and his partner entered the pawnshop for the purpose of committing the forcible felony of robbery and as a direct result of the attempted robbery, Fred Gardaphe was fatally shot while struggling with the defendant.

Defendant’s second contention is that the sentence of 50 to 100 years was excessive. He declined to testify in his own behalf at the hearing on mitigation and the only point on which mitigation might be indicated is that no prior criminal record was revealed. The State pointed out the brutal nature of the crime and the danger of repetition. In sentencing the defendant the court considered the seriousness of the offense and the prospect of defendant’s rehabilitation, which the Parole Board may consider in less than 20 years. Ill Rev Stats, c 38, §123-2 (a) (3) (1967). The Illinois Supreme Court in affirming a 50 to 100 year sentence held that “the trial judge has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.” People v. Caldwell, 39 Ill2d 346, 236 NE2d 706. Defendant in the instant case committed a brutal murder in the course of which he himself was seriously wounded and while crawling away from the scene he threatened with a revolver a 12-year-old boy and another man. In so doing defendant exhibited the characteristics of a desperate and dangerous criminal. The penalty imposed was not disproportionate to the crime committed.

Defendant’s third contention is that the judgment should be reversed because his attorney failed to file more than one jury instruction. He argues this indicates his attorney was incompetent and that he was thereby prejudiced. He cites no authority for that contention nor does he show how he was in any way prejudiced by failure of his counsel to file more instructions. In a desperate case such as this one, defendant’s trial counsel could have decided his only hope was that the sympathy of the jury might be aroused by the picture of a lone defendant against the world. We find no reversible error in the trial of this case.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: PRESIDING JUSTICE ABRA-HAMSON.

text:
    Joseph Hendler, a Minor, by Abraham Hendler, His Father and Next Friend, and Esther Hendler, a Minor, by Abraham Hendler, Her Father and Next Friend, Plaintiffs-Appellants, v. Miriam Wolozin, Nat Wolozin, Chicago Transit Authority, a Municipal Corporation, and Harry J. Zanotti, Defendants-Appellees.
    Gen. No. 50,789.
    First Judicial District.
    January 20, 1969.
    Leo S. Karlin and Daniel Karlin, of Chicago, for appellants; George J. Schaller, O. R. Hamlink, Jerome F. Dixon, Erwin Wright, and Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard, and Frederick W. Temple, of counsel), for appellees.
   Opinion by

PRESIDING JUSTICE ABRA-HAMSON.

Not to be published in full.


author: SCHEINEMAN, J.

text:
    William Scott, Plaintiff-Appellee, v. Instant Parking, Incorporated, and John Doe, Defendant, Fidelity General Insurance Company, Respondent on Citation and Appellant.
    Gen. No. 52,686.
    First Judicial District.
    January 20, 1969.
    Rehearing denied March 11, 1969.

      Sydney W. Hollander and Branko M. Steiner, of Chicago (Branko M. Steiner, of counsel), for appellant.
    Peter Fitzpatrick and George Kaye, of Chicago (Jesmer & Harris, Fitzpatrick & Kaye, of counsel), for appellee.
   SCHEINEMAN, J.

William Scott recovered a judgment against Instant Parking, Inc., for personal injuries. The judgment for $21,000 was entered on a jury verdict awarding plaintiff $11,000 compensatory damages and $10,000 exemplary damages. The jury also specifically found the defendant guilty of wilful and wanton misconduct.

Thereafter, the plaintiff filed a citation proceeding against Fidelity General Insurance Company, which had insured defendant, undertaking: “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person, caused by accident . . . .” The trial court heard the arguments and ordered the insurance company to pay plaintiffs the $21,000 judgment against the defendant.

On this appeal it is contended that the insurance policy does not apply to consequences resulting from wilful and intentional wrongs, being restricted to injuries caused by accident. Also, that the $10,000 verdict for punitive damages was a penalty against defendant and the defendant should not be relieved from the penalty by reason of insurance.

The legal question whether a policy, like the one in this case, covers liability for intentional wrongs or for injuries caused by wilful and wanton misconduct, has been before the courts with many kinds of varying results. Thus the appellant cites cases from other states which uphold its position, including the Oregon case of Isenhart v. General Cas. Co. of America, 233 Ore 49, 377 P2d 26, which went so far as to hold that even if the policy expressly applied to intentional actions, that provision would be void as against public policy. The reasoning was that a person might be less likely to do violence to another knowing that the result would not be covered by liability insurance.

On the other hand, appellee cites cases to the contrary from a number of states and from the Federal and English courts. Under these circumstances this court will carefully examine what has been said on the subject by Illinois courts of review.

In Albrecht Co. v. Fidelity & Casualty Co., 289 Ill App 508, 7 NE2d 627, the court held that “as the result of an accident” covered the case of an insured’s intentional shooting of a trespasser, and stated that it was following the greater weight of authority and the better reasoned cases.

That case was cited and followed in Hawthorne v. Frost, 348 Ill App 279, 108 NE2d 816, which involved an unprovoked assault on a person by a taxi driver, whose employer carried liability insurance in compliance with an Illinois statute and the Chicago Municipal Code. We call attention to the fact that the reasoning of the Oregon court cited by appellant could not apply in the Hawthorne case or in this case, since the insurance policy was a protection to the assailant’s employer, not to him.

The Hawthorne case also cited a number of cases from other jurisdictions, and quoted with approval the principle that the question of accidentality “is determined from the standpoint of the injured person and not from the standpoint of the aggressor . . . .” We approve this principle, for the aggressor may have performed an intentional act, but to the injured party he has met with an accident.

Since a wilful assault by an employee is an accidental injury within the meaning of the liability policy, it appears to this court all injuries caused by wilful and wanton misconduct must likewise be regarded as caused by accident, from the standpoint of the injured party.

Next we refer to Rodgers v. Reserve Life Ins. Co., 8 Ill App2d 542, 132 NE2d 692. This involved life insurance rather than liability insurance but the same question was presented, i. e.: whether the result of wilful and wanton misconduct is caused by accident. The court held that it was.

The facts were: the decedent in that case was driving at night at a speed of 100 m. p. h. while approaching a curve in disregard of the protests and warnings from his guests in the car. The beneficiary claimed that death was caused by accident within the meaning of the policy. This contention was upheld, the court saying:

“In the instant case, Rodgers consciously incurred a known hazard in attempting to negotiate the curve on the highway at the high rate of speed he was traveling. He clearly failed to exercise judgment, was careless, reckless, perhaps foolhardy, but it does not follow that he intended to destroy himself or imperil the lives of his guest passengers. His death was not the rational, natural and probable result of his intentional act, and, upon the facts as they appear in this record, plaintiff is entitled to recover.”

The Illinois statute, c 951/2, Ill Rev Stats, § 9-201, limits recovery by a guest rider against his host to damages for injuries “in case of accident . . . caused by the wilful and wanton misconduct of his host.” Obviously, the legislature believed the result of wilful and wanton misconduct was “caused by accident.”

We would regard any court decision to the contrary as a blind disregard of the commonly accepted Hlinois usage of the phrase “caused by accident.”

Accordingly, we hold that these words include injuries caused by wilful and wanton misconduct, and since punitive damages may be allowed in such a case, they are a part of “all sums” which the insured became liable to pay, and thus are covered by express wording of the policy.

Appellant objects to the procedure used in ordering it to pay the judgment, averring that this deprived it of its right to a trial by jury. The issue before the court was whether the policy covered wilful and wanton misconduct, and in particular, whether it covered exemplary damages. Upon that issue, the appellant had no right to a jury trial. The question of the construction of a contract presents an issue of law for the court, it is not submissible to a jury.

By leave of court, the appellant filed a supplemental list of authorities, which pertain to the right of an individual tort-feasor to insure himself against liability for his own acts. We have already noted that the several jurisdictions arrive at various rules of law in that situation. This case is different, it involves only the right of a corporation to insure against liability caused by its agents and servants. There is no reasonable basis to declare the latter type insurance is against public policy. Appellant cites nothing on that situation. On the contrary, appellee cites authorities to the contrary, including: Sterling Ins. Co. v. Hughes (Fla), 187 So2d 898, and Ohio Cas. Ins. Co. v. Welfare Finance Co., 75 F2d 58 (8th Cir).

The rulings of the trial court were correct under Illinois law, and its judgment order is affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tommy Nickelson, Defendant-Appellant.
    Gen. No. 51,440.
    First District, Second Division.
    January 21, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Constantine P. Xinos, 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 John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.