text:
    Rockford Life Insurance Company, an Illinois Corporation, Plaintiff-Appellant, v. Edward V. Rios, Blanche A. Rios, Robert Johnson, Jr., Phyllis A. Johnson, and Sterling Federal Savings and Loan Association, Defendants-Appellees.
    Gen. No. 70-27.
    Third District.
    August 19, 1970.

      Williams, McCarthy, Kinley & Rudy, of Rockford, for appellant.
    Ward, Ward, Castendyck, Murray & Pace, of Sterling, for appellees.
   STOUDER, J.

This is a mortgage foreclosure action brought by Rockford Life Insurance Company, Plaintiff-Appellant, in which proceeding Defendants counterclaimed seeking a release of the mortgage. The Circuit Court of Whiteside County dismissed the mortgage foreclosure for want of equity and ordered that the mortgage be released from which decrees this appeal follows.

On December 1, 1956, Edward and Blanche Rios, defendants, executed a note for $10,900 secured by a mortgage on their residence to the City National Bank of Dixon, Illinois. On July 17, 1957, said note and mortgage were assigned to plaintiff, Rockford Life, when the latter purchased the loan from the bank through H. A. Roe Company, herein referred to as Roe. On or about May 2, 1966, defendants Robert and Phyllis Johnson purchased the property from Rios and obtained financing therefor from Sterling Federal Savings and Loan Association, another defendant. On May 2, 1966, Sterling Federal delivered its check to Roe in the amount of $8,421 for the purpose of paying in full the balance of principal and interest then due on the mortgage to Rockford Life. The amount paid to Roe was the correct amount due at the time. Roe cashed the check, but neglected to remit any part thereof to Rockford Life. Instead, Roe continued to send to Rockford Life the amount of the monthly payment, $60.60, less its service commission. Not having received a release of the mortgage or the canceled documents, Sterling Federal made a telephone inquiry of Rockford Life in November, 1966, and a written demand for release of the mortgage in December, 1966. The Roe Company was declared bankrupt on February 28, 1967.

Roe had been acting as Servicing Agent for Rockford Life for a number of years with respect to a number of loans pursuant to a written servicing and purchasing agreement executed in September, 1958. Each month Roe collected the mortgage installment from the mortgagor, deducted its service fee and remitted a net sum to Rockford Life to be applied to principal and interest on the particular mortgage. Of some forty loans serviced by Roe for Rockford Life, ten of them (including one from Sterling Federal), were prepaid by paying the balance due to Roe, the appropriate documents being thereafter received by the payor.

After the mortgage had been assigned and recorded, it, together with the note, was at all times in the possession of Rockford Life at its office in Rockford and not in the possession of Roe. At the time of the assignment the mortgagors received a payment book which directed that all payments should be made at the office of Roe, indicating the address.

The trial court held the note secured by the mortgage had been paid in full. Consequently, Rockford Life was not entitled to foreclose its mortgage and the defendants were entitled to a release of the mortgage.

The principal issue raised on this appeal is whether or not payment of the balance to Roe was payment to Rockford Life. Under the general rules of agency, if Roe had either actual or apparent authority to receive the payment, then payment to him had the same legal effect as payment to Rockford Life, its principal. Absent such authority, Roe did not receive the payment as agent and hence, its principal would not be bound.

Notwithstanding plaintiff’s argument to the contrary, we believe the trial court properly determined that payment had been made to an authorized agent of the plaintiff. We believe there is ample evidence supporting the conclusion that Roe had actual or express authority to receive prepayments of the entire balance of the loan.

In our view, the written servicing agreement confers the requisite authority upon Roe. Paragraph 2 of the servicing agreement provides, “continuously from the date hereof until the principal and interest of the mortgage are paid in full the servicer shall proceed diligently to collect all payments due under the mortgage, as and when the same shall become due and payable . . . Paragraph eight provided that Roe, “shall service said mortgage continuously from the date of purchase until the principal and interest are paid in full.”

The language of the foregoing provision reveals the intention of the parties that the servicing agent is not only authorized, but also required to collect and receive all payments on the mortgage. Even though prepayments are not mentioned in the agreement, there would appear to be no need to do so since the agreement does not purport to include any limitations or exceptions on the authority of the agent, or to classify payments.

The conduct of Rockford Life and its agent Roe is entirely consistent with the foregoing interpretation of their agreement and wholly inconsistent with any other interpretation. The ten loans which were paid before maturity during the period 1960 to 1965 by Roe to Rockford Life, were all handled by paying the final balance to Roe. After deducting its commission Roe remitted the balance to Rockford Life and the cancelled papers were forwarded to Roe for delivery to the borrowers. Rockford Life did not at any time make any objection to this procedure and the only conclusuion which can be drawn therefrom is that the procedure was in accord with the agreement between the parties. If any ambiguity existed in the language of the agreement (and we believe otherwise), the course of conduct between the parties representing as it does contemporaneous construction of the agreement, would indicate that the agent had actual authority to accept the prepayment.

We believe that Hoiden v. Kohout, 12 Ill App2d 161, 138 NE2d 852, is controlling of the issues raised in the case at bar, particularly in view of the agreement between the principal and its agent. See also sections 42 and 43, Restatement (Second), Agency. Cases such as Siekmann v. Stanton, 251 Ill App 442 cited by plaintiff, are, we believe, inapplicable insofar as they suggest that an agent must have possession of the note before such agent is authorized to accept final payment thereof. Hoiden v. Kohout, supra, discusses some of the earlier cases to this effect, but concludes that the principal may authorize a contrary procedure.

American Nat. Ins. Co. of Galveston, Texas v. Murray, 383 F2d 81, (applying Mississippi law), also cited by plaintiff, does not require a contrary result. In the American Nat. Ins. Co. case, the majority of a divided court held that the question of whether payment had been made to a duly authorized agent could not be determined in the summary procedure employed. It, therefore, can be said that the court failed to hold that the servicing agent was authorized to receive the prepayment as a matter of law. The court did not have before it either a written agreement between the insurance company mortgagee and its servicing agent or a course of conduct to establish the authorization of the agent.

Lastly, plaintiff argues that defendant ought to be estopped from claiming payment to Roe because of the delay in requesting the mortgage release from Rockford Life. We find no merit to this contention.

If payment is made to an authorized agent as in the case at bar, the payor is not bound to inquire into the application of such payment. The default of such agent is the responsibility of the principal. It is the principal who in the first instance selects the agent, grants him the authority and enables him to come into possession of the funds which are diverted. It is this conduct which makes the loss possible and the principal may not shift the burden to the party dealing with his agent. Brenner v. Franke, 18 Ill App2d 202, 151 NE2d 650.

Finding no error in the decrees of the Circuit Court of Whiteside County, the decrees of said court are affirmed.

Decrees affirmed.

RYAN, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Greg Mindock, Defendant-Appellant.
    Gen, No. 69-40.
    Third District.
    August 20, 1970.
    Kevin Kelly, of LaSalle, for appellant.

      Robert E. Richardson, State’s Attorney of LaSalle County, of Ottawa, for appellee.
   STOUDER, J.

Defendant-Appellant, Greg Mindock, was charged with operating a motor vehicle at a speed “Too fast for conditions” in violation of Ill Rev Stats 1967, c 95%, § 146. After a bench trial in the Circuit Court of LaSalle County, the defendant was found guilty and fined $10. This is an appeal from such judgment and fine.

The only testimony presented at the hearing was that of the arresting officer. At the close of his testimony, defendant moved for judgment of acquittal for the reason that such testimony was insufficient to prove defendant guilty of the offense alleged beyond a reasonable doubt. The court denied such motion and found defendant guilty.

Since the police officer’s testimony was the only evidence presented to the court, the following facts necessarily are the substance of such officer’s testimony.

According to the officer, he received a call from his headquarters to report to the scene where an accident had occurred, which was about one-half to three-fourths of a mile from his headquarters at 12:15 a. m. on July 16, 1968. The road at the scene was two-lane and it ran north and south in a flat area. At the scene there was a gradual curve to the west. As to the speed limit at the area, it is an open zone. He found defendant’s automobile on the shoulder of the road headed west at right angles to the road three or four feet off the highway. He found gravel and tire marks, not actual skid marks, on the road next to the automobile and south of it, which were not measurable. These marks were in the northbound lane and led up to the car in the ditch. From the gravel and smudge marks, he could see the car made a complete turn in the roadway. The car was about in the middle of the curve.

When he arrived at the scene, he had a conversation with the defendant, who stated he was driving the car. There was very little damage done to the automobile which was hung up in the ditch along the highway. The defendant said he was northbound on Airport Road, that he had no mechanical problems with the car and that he had not been drinking. He didn’t know what happened, but that all of a sudden he was going the wrong way and ended up where he did. The approximate length of the tire marks described was between 40 and 50 feet. The road shoulders were gravel and dropped off from the roadway from an inch to an inch and a half. They vary in width.

Section 146, chapter 95%, Ill Rev Stats 1967, provides, “No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; or (2) is greater than the applicable maximum speed limit established by this Section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed . . . when approaching and going around a curve ... or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions . . . .”

In support of the judgment of the trial court, the State argues that the defendant was “. . . charged with and was convicted by the trier of fact of driving his vehicle beyond his personal capacity to operate a car safely.” It is not- difficult to conclude from the argument of the State that the defendant was, in fact, not found guilty of violating the Statute. The Statute purports to regulate speed and yet neither in the State’s argument, nor the evidence itself can we conclude illegal speed was the basis of the judgment of conviction.

Where violation of the Motor Vehicle Act is charged, the burden of proof required to sustain a conviction is the same as in any other criminal case. People v. Strangeland, 76 Ill App2d 77, 220 NE2d 748. The court in People v. Pearlman, 15 Ill App2d 239, 145 NE2d 762, sets forth at length the many considerations which require that traffic cases receive the same judicious consideration as required in other criminal cases.

The Statute provides that operating a motor vehicle at a speed less than the applicable maximum limitation may be improper, depending upon relevant conditions. By the terms of the Statute, if the vehicle is being operated at a speed less than the maximum applicable limitation, where there is no evidence to the contrary, it should be presumed or at least inferred, that the vehicle is being operated at an appropriate speed. To overcome such presumption or inference, it must be shown that the operative conditions required a lesser speed than the speed at which the vehicle was being driven. Assuming that under such circumstances the precise speed of the vehicle need not be shown, nevertheless, the conditions requiring such lesser speed are indispensable elements of the offense.

A review of the officer’s testimony reveals no conditions requiring decreased speed or condition, indicating that excess speed was the cause of the vehicle leaving the roadway.

For the foregoing reasons, the judgment of the Circuit Court of LaSalle County is reversed.

Judgment reversed.

RYAN, P. J. and ALLOY, J., concur.


text:
    Roy Kiddy, Plaintiff-Appellee, v. Toledo, Peoria & Western Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 69-125.
    Third District.
    August 20, 1970.

      Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellant.
    Knobloek & Ott, of Peoria, for appellee.
   STOUDER, J.

Plaintiff-Appellee, Roy Kiddy, brought this action in the Circuit Court of Peoria County against Defendant-Appellant, Toledo, Peoria & Western Railroad, seeking damages for personal injury under the provisions of the Federal Employers’ Liability Act. The jury returned a verdict in the amount of $53,800 upon which judgment was entered. Defendant’s post-trial motion was denied, from which this appeal follows.

On September 23,1963, plaintiff, Roy Kiddy, as an employee of defendant, Toledo, Peoria & Western R. Co., was engaged in replacing switches in the yard of the defendant railroad. The work consisted of unspiking the rails, removing them, removing the ties and cleaning the roadbed, and replacing the rails and ties with heavier equipment. While engaged in carrying a tie plaintiff stumbled and fell injuring his back.

At the time of the incident, plaintiff was assisted by two other men. Plaintiff and one of the other men carried the front end of the tie by placing it on a pick handle. It was necessary to keep the tie balanced and the pick handle level, in order to prevent slipping. The rear of the tie was carried by the third person. According to plaintiff, he caught his toe on something, or the tie slipped and he fell. Plaintiff was sixty-one years of age at the time of the injury and was thereafter unable to return to work.

The complaint charged defendant with negligently failing to provide plaintiff with a reasonably safe place to work, permitting debris, railroad ties and other foreign matter on the premises where the plaintiff was performing his duties, failing to provide plaintiff with tie tongs to assist him in moving railroad ties, failing to provide plaintiff with sufficient help to assist him in moving railroad ties, and failing to provide plaintiff with suitable tools and equipment with which to do his work.

Defendant first argues that the nature of the work being done or the working conditions may, under certain circumstances, constitute an exception to the employer’s general duty to provide a safe place to work. In support of this proposition, defendant relies primarily on two cases, namely, Village of Montgomery v. Robertson, 229 Ill 466, 82 NE 396 and Payne v. Baltimore & O. R. Co., 351 Ill App 186, 114 NE2d 323.

According to defendant, Village of Montgomery v. Robertson, supra, announces the general rule that where the servant in the prosecution of his work produces changes in the condition of the premises where he is performing his work, the master is under no duty to provide a safe place in which to work. Such rule is, at best, ambiguous and contrary to the general concept of negligence, particularly as applied in Federal Employers’ Liability Act cases.

Payne v. Baltimore & Ohio, supra, quoted at length by defendant, that where the employee is engaged in repair work or in making his place of work safe, the employer is, therefore, not required to provide a safe place of work is likewise of doubtful authority. The court in Payne recognizes that the employer’s liability is based on negligence and that the nature of the work is merely a factor relating to the employer’s exercise of due care under the circumstances. The court in Payne held that evidence of negligence was absent and hence, there was no violation of any duty owed by the employer to plaintiff.

Even though the assumption of risk was abolished as a defense to the negligence of the employer under the Federal Employers’ Liability Act by an amendment in 1939, its shadow still lingers. Tiller v. Atlantic Coast Line R. Co., 318 US 54, 87 L Ed 610, examines this problem in detail and emphasizes that the bones of assumption of risk may not be resurrected and attached to the concept of negligence. The doctrine of assumption of risk generally meant that the employee assumed the hazard of injury from usual and customary dangers incident to the work. According to Tiller, such principle cannot now be regarded as “nonnegligence” by saying that the employer is under no duty with regard to those hazards which are the normal and customary incidents of the work. The employer’s duty is to exercise reasonable care under the circumstances, which includes due regard for the dangers incident to the work to be done, and the nature of the work itself does not negate the existence of the duty. Just because the plaintiff in the case at bar was engaged in repairing and replacing tracks and ties does not warrant the defendant’s conclusion that it thereby had no duty to provide a reasonably safe place to work.

Defendant also argues that the charges of negligence regarding safe place to work and debris on the right of way are not supported by any evidence and, consequently, including such allegations in the issues instruction constituted reversible prejudicial error. We find no merit in such contention.

In large measure, defendant’s argument is based on its initial contention which we have heretofore rejected regarding the absence of any duty to provide a safe place to work under the conditions relating to the nature of the work. The duty to provide a reasonably safe place to work includes more than physical terrain free from defects. It also includes the conditions of work and methods by which the work is to be accomplished. Campbell v. Chesapeake & O. Ry. Co., 36 Ill App2d 276, 183 NE2d 736 and Goodwin v. Wabash R. Co., 33 Ill App2d 349, 179 NE2d 430.

The evidence regarding the employer’s negligence is not only substantial but is also substantially undisputed. Nearly all of the witnesses testifying indicated that the proper way to carry a tie was with tie tongs. It is also well established by the testimony that ordinarily four men were employed to carry a tie using tie tongs, and not three. Other testimony indicated that tie tongs were not provided, that they would have been used had they been provided, that the crew was short on the day of the injury, and that because the work had to be completed by twelve o’clock noon, much of the material removed from the roadbed was scattered about the area. We conclude that the charges of negligence were supported by ample evidence.

Lastly, defendant argues that the amount of the verdict was excessive. Again, we find no merit to this contention.

The plaintiff was sixty-one years of age at the time of the incident and had been employed by defendant since 1949. He was in good health and ably performed the heavy manual labor incident to section work. The injury resulted in muscle spasms and limitation of movement of plaintiff’s back which, according to the medical evidence, was the aggravation of a preexisting osteoarthritic condition ordinarily associated with aging. The plaintiff was not released by his physician to return to work and he had not been able to work between the date of the injury and the time of trial, some six years later. According to the evidence, it would be unlikely that his condition would improve.

At the time of his injury plaintiff was earning approximately $4,200 per year. At the time of trial, the rate for doing the same kind of work was $5,600 per year. Defendant had no compulsory retirement age and if plaintiff had worked until age seventy, his loss of income, both past and prospective, might have been between $40,000 and $45,000. There is also evidence that the condition caused considerable pain and suffering and his physical activity was limited to mild exertion. When the intangible elements of damage are considered with the loss of income, we believe the verdict is well within the range of the testimony. See Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63 and Barango v. Hedstrom Coal Co., 12 Ill App2d 118, 138 NE2d 829.

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

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.


author: MR. PRESIDING JUSTICE CRAVEN

text:
    National Wrecking Company, a Corporation, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 52,927.
    First District.
    August 21, 1970.

      Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Burton Y. Weitzenfeld and Michael R. Turoff, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and RocLyne E. LaPorte, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The defendant, City of Chicago (hereinafter referred to as “City”), solicited bids for the wrecking of some sixty-two buildings as part of an urban renewal project. Plaintiff, National Wrecking Company (hereinafter referred to as “National”), was the successful bidder and was awarded the contract for the wrecking.

This litigation is an outgrowth of difficulties arising between the parties as to extra work allegedly made necessary by the City’s action in stopping on-site burning, thus necessitating extra hauling of debris. Further, National makes claim for the salvage value of plumbing and heating fixtures that allegedly disappeared from the buildings to be wrecked and to which National asserts title.

National filed its complaint for breach of contract and a jury trial resulted in the court directing a verdict for the City. This appeal is from the judgment thus entered in that action. We affirm.

We turn first to the claim for loss of salvage. This loss is asserted by National to be in the total amount of some $4,097.89 for bathtubs, sinks and radiators missing from the buildings to be wrecked.

The contract between the parties provided that National was required to wreck the buildings and fill the basement areas with inorganic debris to ground level. The contract further provided:

“. . . Material which in the opinion of the Engineer is not suitable for use as debris fill shall not be so used and shall be removed from the site of the work at no additional cost to the City. If the debris removed from the buildings is insufficient to complete the fill, the Contractor shall furnish all additional material necessary to complete the filling specified without any additional compensation therefor. All or any debris in excess of that required to fill the basements and subsidewalk and vault spaces shall become the property of the Contractor and shall be hauled away from the site.”

That portion of the quoted language that provides that all debris not needed for fill becomes the property of National and shall be hauled away from the site is the basis for the claimed salvage loss. We agree with the determination of the trial court that this language does not create a contractual right in National to any salvage.

Debris and salvageable material are not one and the same. While the quoted language is broad enough to give National title and impose a duty on National to haul away the excess debris, this cannot in any way be interpreted as imposing a contractual duty on the City to see to it that fixtures not be removed by tenants or strangers from the buildings to be wrecked. As we view it, the clear and unambiguous language of the contract compels this result. Rules of construction to aid in ascertaining the intention of the parties are applicable only in the event of the existence of an ambiguity. Such rules are of no utility when there is no ambiguity. The fact that the parties may take divergent views of the contract language does not create an ambiguity. La Salle Nat’l Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188, 208 NE 2d 845 (1st Dist 1965).

Other provisions of the contract clearly establish the intention of the parties as to what would constitute debris and what the obligations of the parties were with reference to it. For instance, debris was not to be allowed to accumulate on roofs or floors, and was to be removed from the site as the work progressed. Debris to be used as fill was to be brick, broken concrete, stone, mortar or similar material removed from the buildings. Material not suitable for fill was to be removed, and if there was not enough fill National was obliged by the contract to haul it in without additional compensation.

We cannot accept National’s contention that the provision vesting title to the debris in National carries with it the necessary connotation that National was contractually entitled to the salvageable material and that the City is liable for breach of contract for the plumbing and heating fixtures which may or may not have been on the premises at the time of the contract. The contract provision providing that title to the debris would be in National, when read with all of the other provisions, leads to the clear conclusion that this was a device to permit National to sell scrap lumber or other parts of the debris if it wanted to, but in any event to clearly establish its obligation to remove the excess from the wrecking site. The trial court was correct when it determined this issue in favor of the City and took the issue from the jury. Jordan v. Ray Schools-Chicago, Inc., 49 Ill App2d 1, 199 NE2d 827 (1st Dist 1964).

The contract provided:

“(k) If the contractor desires to dispose of any debris or other waste materials under this contract by burning he shall, prior to any burning, secure permission therefor from the Bureau of Fire Prevention, Department of Fire of the City of Chicago, and shall comply with all regulatory measures and directives of said Department.”

National was obligated under the terms of the contract to haul waste material and debris from the wrecking site. The contract contemplated the possibility of burning some of this material. The quoted provision took note of this possibility and provided that any burning would have to be pursuant to permit. National, in fact, applied for a permit and received one from the Fire Prevention Bureau. The permit, as issued, authorized the burning of “kindling wood only at your wrecking site located at 56th & Harper.” (Emphasis in original.) The permit further provided certain terms and conditions for the burning. After having obtained the permit, National hauled material to be burned from the wrecking sites to the burning site. There is some issue presented as to what constitutes “kindling wood” in “moderate proportions.” The evidence is that the material to be burned was machine-loaded, then hauled in truckload quantities and included painted and varnished wood and laths with plaster still on them. In any event, the burning was ordered stopped by the Bureau of Engineering. The evidence is that the appropriate City department having authority to revoke a permit is the Fire Prevention Bureau, the issuing agency.

We are referred to other ordinances and regulations with reference to burning which could affect the question of the validity of the action in stopping the burning for noncompliance, but as we view this provision there was no obligation on the part of the City by the terms of this contract to permit burning. The contract merely provided that if the contractor desired to bum he would be required to secure a permit and comply with the regulations and directives, etc. This cannot be construed as a contractual obligation by the City to permit of burning. Thus, the contention by National that the permit was unlawfully revoked is a contention extraneous to an action for breach of contract.

In connection with the revocation of the permit, we have reviewed the cases cited by National with reference to the issuance of a license by a city and the restriction upon license revocation prohibiting arbitrary or capricious action. As we view it, these cases have no application here.

Since we have determined that the action for breach of contract on the two issues discussed must fail and that the trial court was correct in directing a verdict, we need not consider the contention of the City that the evidence as to damages — even assuming a contractual obligation — was so speculative that there was. in fact no evidence upon which damages could be legally ascertained. The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: MORAN, P. J.

text:
    Victoria B. Figures and Jim Figures, Plaintiffs-Appellees, v. Harold O. Swank, Director, Illinois Department of Public Aid, Illinois Department of Public Aid, and Cook County Department of Public Aid, Defendants-Appellants.
    Gen. No. 53,864.
    First District.
    August 21, 1970.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellants.
    Robert M. Berger, of Chicago (Gordon H. S. Scott and Charles Barnhill, of counsel), for appellees.
   MORAN, P. J.

This appeal requires us to construe section 12-4.11 of the Illinois Public Aid Code (Ill Rev Stats 1967, c 23, § 12-4.11).

The Cook County Department of Public Aid has denied plaintiffs a security deposit for one month’s rent in their efforts to secure adequate shelter, on the basis that such deposit payments are not authorized by the Illinois Department of Public Aid. It is the adopted policy of the Illinois Department of Public Aid to offer to guarantee up to one month’s rent in lieu of the rent security deposit in cases where such is required by the landlord in standard housing. On June 11, 1968, Mrs. Figures filed a written notice of appeal from the decision of the Cook County Department which the Illinois Department affirmed. Plaintiffs then sought review of this decision in the Circuit Court of Cook County under the Administrative Review Act. The trial court held that “Section 12-4.11 of the Illinois Public Aid Code does not permit the Public Aid Department to establish and enforce a general policy of refusing in all cases to furnish aid recipients with a cash security deposit of one month’s rent regardless of the facts or circumstances of the particular case or the need of a particular aid recipient to be furnished with such a deposit in order to obtain adequate shelter; and defendants erroneously construed Section 12-4.11 of the Public Aid Code by establishing and enforcing” such general policy, and ordered defendants to furnish to plaintiffs an amount in cash equal to the security deposit which plaintiffs’ present or prospective landlord requires to be paid as a security deposit, not to exceed the amount of one month’s rent, in addition to any grants to which plaintiffs are entitled. We agree.

Plaintiffs, Jim and Victoria A. Figures, and their four minor children and one minor grandchild are recipients of and solely supported by Social Security Disability payments and payments from the Cook County Department of Public Aid. Mrs. Figures has been seeking adequate shelter since March, 1966, when her family moved from Arkansas to Illinois. She had been receiving a rental allowance of $105 per month from the Cook County Department of Public Aid from April, 1967 until April, 1968 when this rental payment was withheld from the landlord due to Building Code violations, and the Department advised the Figures family to move. This apartment had been adequate for the size of their family. Since September, 1967, Mrs. Figures has made numerous and diligent attempts, without success, to locate primarily a three-bedroom apartment in standard housing in the community, including the Woodlawn and the Lawndale areas of Chicago, where the majority of landlords require a one-month’s cash security deposit in advance. She has reported to the County Department some fifteen or more apartment vacancies in which a rent security deposit was required by the landlord. Of these, all but one was considered substandard housing by the County Department. This exception occurred in May, 1968, when the landlord rented the apartment to another person with a security deposit before Mrs. Figures could make the security deposit payment and rent the apartment.

Subsequent to the date the Illinois Department rendered its decision in this case, the Figures family moved into an apartment in a Chicago Housing Authority Project which requires as part of its general policy that tenants pay a cash security deposit of one month’s rent, plus an additional $24 payable in $5 monthly installments. The Cook County Department of Public Aid continues to refuse to furnish this security deposit and plaintiffs are compelled to divert this amount from their other social security and public aid payments.

The relevant portions of section 12-4.11 provide:

“Standards of Assistance — Content—Limitations. Establish standards by which need for public aid will be determined and amend such standards from time to time as circumstances may require.
“The standards shall provide a livelihood compatible with health and well-being for persons eligible for financial aid under any Article of this Code.
• • •
U
“In establishing a standard for shelter, the Department shall take into account in each community the prevailing rates or costs for housing of low income persons and the factors which influence the level of such rates or charges. However, the shelter standard for any recipient, exclusive of household furnishings and utilities, shall not exceed $90 per month, except for adjustments made in the manner authorized by Section 12-14. If recipients com obtain adequate shelter only if a security deposit is given the landlord, the Department maty furnish one month’s rent as a security deposit. This provision shall be operative only to the extent that Federal participation in program costs is not adversely affected by such programs, and does not foster the granting of duplicate assistance.
“In establishing standards under this Section the Illinois Department shall consult with the Legislative Advisory Committee, as provided in Section 12-14.” (Emphasis added.)

The trial court found and the defendants concede that the Figures family was able to obtain adequate shelter if, and only if, a cash security deposit of one month’s rent was furnished to them or to the landlord on their behalf, and further that the defendant’s sole reason for refusing to furnish Mrs. Figures with a cash security deposit is its inflexible general policy of refusing to authorize such deposits in all cases.

Defendants assert that it was the legislative intention that this provision be permissive and that the decision as to whether such payments should be made was to be discretionary as is shown by the circumstances surrounding the enactment of this provision and the use of the word “may.” We agree that the statute vests certain discretion in the Departments of Public Aid, but not to the extent urged by defendants.

The last sentence of the fifth paragraph of section 12-14.11 leaves to the Illinois Department the determination whether furnishing one month’s rent as a security deposit adversely affects federal participation in program costs or fosters the granting of duplicate assistance. Either determination would cause the provision to be inoperative. There has been no showing by defendants that either determination has been made in this case or with respect to this program. In addition, payment by the department of cash security deposits rests on the proviso that “recipients can obtain adequate shelter only if a security deposit is given the landlord.” As previously conceded by defendants, plaintiffs qualify under this proviso. Beyond these three areas of discretion set forth in the statute, we find no discretion for the defendants to adopt a general policy of refusing to furnish any security deposits to public aid recipients because payment of such a deposit is thereafter mandatory.

It has been stated as a rule of construction that “the word ‘may’ in a statute, will be construed to mean ‘shall’ whenever the rights of the public or third persons depend upon the exercise of the power of the performance of the duty to which it refers and such is its meaning in all cases where the public interest and right are concerned or a public duty is imposed upon public officers and the public or third persons have a claim de jure that the power shall be exercised,” or where it is necessary to construe it to carry out the intent of the legislature. Brokaw v. Bloomington Tp. Highway Com’rs, 130 Ill 482, 22 NE 596. See also People v. Commissioners of Highways of Sullivant Tp., 270 Ill 141, 110 NE 347; Young v. Carey, 184 Ill 613, 56 NE 960. Defendants argue that the only interest in whether a month’s security deposit shall be paid is an interest of the individual landlords and of the public aid recipients and not a public interest or an interest de jure. However, the enunciated purpose and pervasive theme of the Public Aid Code is to “assist in the alleviation and prevention of poverty and thereby to protect and promote the health and welfare of all the people of this state.” (Ill Rev Stats 1967, c 23, § 1-1, par 1.) Prior to 1967, this section read, “assistance and services for persons who are unable to provide themselves with the minimum standard of living compatible with decency and health are hereby declared to be special matters of the public concern and a necessity in promoting the public health and welfare.” (Ill Rev Stats 1965, c 23, § 1-1.) Since payments of security deposits have been deemed necessary to effectuate these purposes (Report of the Legislative Commission on Low Income Housing, April 10, 1967) and to provide recipients “a livelihood compatible with health and well-being for persons eligible for financial aid,” (Ill Rev Stats 1967, c 23, § 12-4.11) we believe it is in the public interest that these payments be made where authorized by statute.

The Illinois Department of Public Aid contends that it has an absolute, unregulated discretion under the Illiniois Public Aid Code to pay or not to pay the deposit in all cases. In other words, it is defendants’ contention that the part of the Illinois Public Aid Code which provides for the payment of a one month’s security payment for qualified public aid recipients does not become operative unless the department determines that it should. The interpretation contended by the director would cast doubt upon the constitutionality of that portion of the Illinois Public Aid Code because a statute or ordinance which in effect reposes an absolute, unregulated and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers. 1 Am Jur2d 908; McDougall v. Lueder, 389 Ill 141, 58 NE2d 899.

Indeed, defendants’ refusal to make these payments frustrates the legislative intent of the statute. This legislation was the result of the recommendation of the Legislative Commission on Low Income Housing (supra), that county departments be authorized to pay security deposits demanded of public aid recipients in order to seek and acquire more decent housing which was based on the realization that many recipients of public aid were occupying substandard housing in Chicago because they were unable to furnish the security deposits demanded by owners of adequate apartments.

From this we conclude that the intent of the legislature was that the Illinois Department of Public Aid authorize and the county departments grant security deposits of one month’s rent to recipients who are qualified under section 12-4.11, as previously discussed. This section should not be construed so literally as to defeat its obvious purpose.

Defendants have suggested that they would be required to pay out an amount equal to the rent budget for one month ($6,887,754 in February, 1969) if required to make one month’s security deposit for recipients of public aid and that the legislature made no addition or supplemental appropriation to permit the defendants to make such security deposit payments. But, as plaintiffs point out, the statute requires that security deposits be furnished not in all cases, but only when necessary to obtain shelter for a particular recipient. In addition, because security deposits are refunded when the tenancy is terminated, the furnishing of deposits involves an initial outlay but much smaller recurring costs and, indeed, we must assume that where the legislature authorizes additional expenditures for a department that it intended to make appropriations commensurate with that authorization.

Accordingly, we hold that the Illinois Department of Public Aid is required to make available security deposits to recipients of public aid otherwise eligible unless it determines that furnishing such deposits adversely affects federal participation program costs or fosters a granting of duplicate assistance, or unless it determines in a particular case that furnishing a deposit is not necessary to obtain adequate shelter for the recipient, and that the trial court was correct in ordering defendants to furnish plaintiffs with a cash security deposit of one month’s rent.

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

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    Elijah Crawley and Nellie Smith, Plaintiffs-Appellees, v. Chicago Transit Authority, Defendant-Appellant.
    Gen. No. 54,092.
    First District.
    August 21, 1970.

      George J. Schaller, Jerome F. Dixon, and Paul Denvir, of Chicago, for appellant.
    Hickey, Gustafson and Peterson, of Chicago (Edward Wolfe, of counsel), for appellees.
   MORAN, P. J.

This is an action for damages for personal injuries received when the car which the plaintiff Elijah Crawley was driving and in which the plaintiff Nellie Smith was riding as his passenger was struck in the rear by defendant’s bus. The case was tried in the Circuit Court of Cook County without a jury and the court awarded $5,740 to the plaintiff Elijah Crawley and $1,500 to the plaintiff Nellie Smith. Defendant appeals.

Richard Eldridge, a police officer for the City of Chicago, testified that he investigated the accident and when he asked Mr. O’Callahan, the driver of the bus, what had happened, O’Callahan answered “that he was westbound on Garfield Avenue (also known as 55th Street) and that the vehicle in front of him stopped and he struck it in the rear.” He testified that the car that was struck was within the crosswalk. He testified without objection that his report showed that the driver and his passenger claimed injury at the scene. On cross-examination he testified that Mr. O’Callahan told him that the automobile was stopped in front of him. Mr. Crawley told him that he was westbound and stopped for a traffic light. When he got to the scene of the accident, the vehicles had been moved, but he believed plaintiff’s car was within the crosswalk, close to the east curb of State Street and not out into the street. He testified without objection that when he asked Mr. O’Callahan how far from the vehicle he was when he first observed it, that he replied that at the time he was in back of the other vehicle. He issued a summons for following too closely. He found some debris at the point of impact approximately one car length back from the east curb of State Street. He does not recall the extent of damage to either of the vehicles. On the day of the accident it was clear and the streets were dry.

Plaintiff Elijah Crawley testified that on May 6, 1965 as he was traveling west on 55th Street approaching the intersection of 55th and State Streets, the traffic light was red so he slowed up and stopped. When he had been stopped about five seconds he was hit in the rear by the C.T.A. bus. The rear end bumper and trunk of his car were damaged. On cross examination he testified that he was familiar with the intersection. He did not make a sudden stop at State Street. He first observed that the light was red approximately three or four car lengths from the light. At that time there was no vehicular traffic in front of him. He began slowing his car at that time. He never saw the bus prior to the collision. He looked in his rear view mirror, but did not see anything. His car moved approximately one-half car length as a result of the impact and his car stopped approximately one-half car length west of the east curb of State Street. He went back to work the first week in June and missed several days periodically after that.

Nellie Smith testified that she was a passenger in Crawley’s automobile at the time of the accident. She had been looking for a job, had been hired by “Wimpy’s” and was scheduled to start work on the next day at $1.55 an hour. She was not able to begin work for three weeks, but at that time did go to work for Wimpy’s at the same job she had been scheduled for. The car had been traveling west on 55th Street and was standing still for about five seconds when it was struck in the rear by the bus. On cross-examination she testified that she saw the light was red when the car was approximately one car length from the stoplight. The car had been stopped approximately five or six seconds when it was struck by the bus.

Matthew J. O’Callahan, first called as a witness by the plaintiffs under Section 60 of the Civil Practice Act, testified that he was the driver of the C.T.A. bus which was involved in an accident with plaintiff’s automobile at about 3:20 p. m. on May 6, 1965 at Garfield and State Streets in Chicago. The point of impact of the vehicles was “the right front of my bumper (CTA bus) on the right of the left rear of his bumper, like sliding across.” At the time of the collision plaintiff’s automobile was standing still. A police officer arrived later but he does not believe that he asked how the accident happened. On direct examination he testified that the first time he saw the automobile it was moving, coming around him to his left at approximately 25 miles per hour. At that time his bus was also moving. Then he testified on behalf of the defendant that he had been employed by the Chicago Transit Authority for thirty-two years as a bus operator. On May 6,1965 he had a high school charter from Mercy High School to approximately 45th and Emerald. He was traveling west on 55th, which is four lanes westbound, north of the parkway. He was in the second lane from the north curb and was traveling about 20 miles per hour.

He saw the car for the first time when it was in front of Mm. The traffic was moderate, but as he was proceeding in the Mock just east of State Street there was no traffic in front of him. When he was 60 to 65 feet from the intersection, plaintiff’s automobile pulled from one of the left lanes in front of him. He put on all the brakes, including the hand brake, when the automobile came into the lane in which he was driving. The distance between the rear of the automobile and the front of the bus at that time was possibly 30 feet. After the accident he did not observe anything unusual about Elijah Crawley. He first observed that the signal light was green when he was behind the automobile, 60 to 70 feet from the intersection. He does not recall whether the light changed at any time before the collision. On cross examination he testified that the impact took place approximately four feet east of the building line and his bus was behind the automobile. When the vehicles stopped, the bumpers were together.

Defendant first contends that the trial court improperly refused to grant a recess or continuance for 20 minutes to permit defendant to produce a witness, because the defendant had informed the court that the witness would appear at 1:30. The court reconvened one-half hour early, but the witness did not appear. Defendant then informed the court that the witness was at another trial and would not appear until after 4:30. By 4:30 all other evidence had been heard and the court’s findings had been made. The court refused to wait any longer for the witness, but permitted defendant to make an offer of proof.

On the basis of the record, we cannot say that the trial court abused its discretion in denying defendant’s motion for a recess since defendant had failed to subpoena the witness and had already been given a prior opportunity to produce the witness but failed to do so. Leathers v. Leathers, 13 Ill2d 348, 148 NE2d 773; Gray v. Gray, 6 Ill App2d 571, 128 NE2d 602; Keel v. Illinois Terminal R. R. Co., 346 Ill App 169, 104 NE2d 659.

Defendant next contends that the trial court erred in permitting the investigating police officer to testify to the conversation he had with the bus driver after the accident on the grounds that such testimony was hearsay and did not come within any exception to the hearsay rule. Assuming without deciding the merits of this contention, we believe there was other sufficient and competent evidence before the trial court sitting without a jury to support its findings. Under these circumstances it is presumed that only competent evidence was considered. McFail v. Braden, 19 Ill2d 108, 166 NE2d 46; Purcell v. Weasel, 12 Ill2d 356,147 NE2d 580.

Finally, defendant contends that the damages awarded were grossly excessive and asks either for a new trial or for a remittitur in this court. Dr. Charles Lee Williams testified that he first saw Elijah Crawley after the accident on May 7, 1965 and continued to see him until August 18, 1966. The patient initially complained of pain in the neck, back, shoulders, and in his knees. His left knee was swollen and he also complained of nervousness and an inability to sleep for a night or two following the accident. The doctor found a 10% loss of cervical flexion and a muscle spasm in the neck area. He had an injury to the lower portion of his lumbo-sacral area and a swelling and discoloration of his left knee. X-rays were taken and the only positive finding was arthritis to C-5 and C-7 vertebrae. Dr. Williams recommended diathermy, bed-rest and hospitalization. The injuries are the type which are continually painful. The patient was hospitalized from May 25, 1965 to June 2, 1965. Following his discharge from the hospital he received additional treatment at Dr. Williams’ office on approximately twenty-five occasions. Two-thirds of the hospital and doctor bill were attributable to the accident. The arthritic condition in the cervical area existed prior to the accident and the remaining injuries consisted of sprains and contusions which Dr. Williams would expect to improve over a period of time. He testified that it was difficult to differentiate between the cervical sprain and the arthritic condition, but that it was known that the sprain superimposed on arthritis, prolongs the symptoms of a sprain and arthritis aggravates them. He also made a diagnosis of posttraumatic neurosis which is a mental state that results from trauma, and was in his opinion “a big part of the disability.” His prognosis in June, 1965, for the following six months or year was guarded. He had advised that the patient could return to work some time in June of 1965.

Elijah Crawley in testifying as to his injuries stated that following the accident he was hurt in his back, neck, legs and knees and was shaken up. On the day after the accident he did not make any complaint about his stomach, gall bladder or intestinal tract. These complaints came about after he had been hospitalized for a while. He was taken to Provident Hospital for a couple of hours and was given an injection. The next day he saw Dr. Williams and was under his care for approximately one year. During this time he felt much pain. Prior to the accident he had never had any trouble with his neck or any treatment for or trouble with his arthritic condition. He had to sleep with a towel around his neck for about four months. The pain in his knee and lower back has cleared up and he has trouble only with his neck. He also saw a Dr. Miller four or five times for heat treatments. He is presently working at the same job he had prior to the accident.

Dr. Roy Preston Garrett testified that he conducted an examination of Nellie Smith on May 7,1965 following the accident. He found that she was suffering from a strain of the cervical and lumbar regions and a contused chest. She was given a sedative for the pain and heat treatment and massage. She was under his treatment from May 7,1965 until June 11,1965. He testified that she has made a satisfactory recovery from the conditions which he diagnosed. She returned to work on May 17. His bill for these treatments was $113.

Nellie Smith testified that as a result of the accident she was unable to work for three weeks. When the bus hit the back of the car, her body was thrown backwards and forwards. Her neck was hurting. She was taken to Provident Hospital where she stayed approximately three hours. She was given some pain pills. She indicated that she felt pain in her chest and neck for approximately nine or ten months but after that time she felt all right.

Elijah Crawley’s medical bill attributable to the accident was $355.52 and his hospital bill was $360.36. The trial court found that he lost three weeks of work at $125.00 per week. His special damages amounted to approximately $1,100. Nellie Smith’s medical bill was $113.00. She lost three weeks of work at $1.55 per hour for a total of $301.55 in special damages. No testimony was introduced that any medical or hospital bill was unreasonable.

Defendant has suggested that these awards are excessive and are the result of prejudice and passion of the trial judge which is demonstrated in the statement made by the trial judge after his award to Nellie Smith of $1,500, that “women are such precious things. They get injured and in very peculiar ways when they get in an accident, you know. I always feel that they can be injured in a lot more ways than men can be injured. So I am going to give her $1,500.” However, after a thorough reading of the transcript in this case and the findings as made by the court we are convinced that the trial judge was objective and discerning in his evaluation of the evidence as it related to the issues of liability and damages and that he was not influenced by passion and prejudice.

We believe that the damages awarded by the trial court fall within the limits of fair and reasonable compensation. Sesterhenn v. Saxe, 88 Ill App2d 2, 232 NE2d 277; O’Keefe v. Lithocolor Press, Inc., 49 Ill App2d 123, 199 NE2d 60. Accordingly, the judgments of the Circuit Court of Cook County are affirmed.

Judgments affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE CRAVEN.

text:
    Universal Savings and Loan Association, a Corporation, v. Cosmopolitan National Bank of Chicago, Trustee Under Trust Agreement Dated March 10, 1959, Known as Trust No. 8524, Chicago Title and Trust Company, Trustee Under Trust Deed Dated March 21st, 1959, Peter Nahakes, Peter J. Vlahakis, and Unknown Owners. Peter J. Vlahakis, Petitioner-Appellant, v. Universal Savings and Loan Association, a Corporation, Respondent-Appellee.
    Gen. No. 54,133.
    First District.
    August 21, 1970.

      Peter J. Vlahakis, pro se, of Des Plaines, appellant; Harold Louis Miller, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE CRAVEN.

Not to be published in full.


author: GOLDENHERSH, J.

text:
    Corine Scoggins, Plaintiff-Appellant, v. Village of Hartford, Illinois, a Municipal Corporation, Defendant Appellee.
    Gen. No. 69-105.
    Fifth District.
    August 26, 1970.

      Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellant.
    Coppinger and Carter, of Alton (John B. Coppinger and Arthur L. Greenwood, of counsel), for appellee.
   GOLDENHERSH, J.

Plaintiff petitioned for, and this court granted, leave to appeal from the order of the Circuit Court of Madison County granting defendant a new trial. This is the third appeal in this cause.

In its order allowing defendant’s motion for a new trial, the trial court states that in its opinion plaintiff failed to prove she was in the exercise of due care and caution for her own safety under the circumstances surrounding the occurrence.

The order of the trial court granting a new trial should not be set aside unless it affirmatively appears that the trial court abused its discretion or proceeded upon a clear misapprehension of a supposed controlling rule of law, Brenton v. Sloan’s United Storage & Van Co., 315 Ill App 278, 42 NE2d 945.

“Unless the finding of the jury on a question of fact is so unreasonable, arbitrary and unsupported by the evidence, that it would justify the trial judge in granting a new trial, the finding of the jury is binding upon the court under the facts. Stilfield v. Iowa-Illinois Gas & Electric Co., 25 Ill App2d 478, 490, 167 NE2d 295.” (Buer v. Hamilton, 48 Ill App2d 171, 175, 199 NE2d 256.)

“The same rule that says that a reviewing court will not reverse the trial court except in clear cases of abuse of discretion, also applies to the trial judge in passing on a motion for a new trial. The trial judge has no right to interpose his judgment for that of the jury on the question of fact presented, unless that judgment is unreasonable, arbitrary and unsupported by the evidence.” (Buer v. Hamilton, supra, 176.)

The testimony shows that plaintiff was injured as the result of a fall on the morning of March 9, 1963. She had left her home to go to a grocery store, and to reach her destination she walked on a sidewalk which extended in an easterly and westerly direction over some railroad tracks. There was a broken area in the south side of the sidewalk west of the tracks. This broken area, approximately 15 feet in length, extended from a point approximately 10 feet west of the center of the tracks to a point approximately 25 feet west of the center of the tracks. The sidewalk had been in existence for several years and the broken condition had existed for some time. Although plaintiff used this sidewalk frequently, and was aware of its broken condition, she had not previously slipped or fallen there.

At the time of the occurrence, she was wearing flat-heeled shoes and eyeglasses. She was walking in a normal manner and was not carrying anything. She usually walked over the north side of the sidewalk. At the time of the occurrence, as she was descending a slope, she started to slide on some pebbles or gravel. She knew that usually there was this type of debris on the sidewalk, but did not pay any particular attention to it on this day, and did not notice it until she started to fall.

As she slid, her foot or toe struck the broken portion of the sidewalk, causing her to trip and fall on her knee.

In our opinion, the facts in this case are similar to those found in Swenson v. City of Rockford, 9 Ill2d 122, 136 NE2d 777. In its opinion the Supreme Court said, at page 127, “The use of a defective sidewalk by a person who has knowledge of the defect is not contributory negligence per se, and if, while walking upon that sidewalk, such person is in the exercise of ordinary care for his or her safety, there may be a recovery in case of an injury. (Wallace v. City of Farmington, 231 Ill 232; City of Mattoon v. Faller, 217 Ill 273.) Ordinary care has been defined to be that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Austin v. Public Service Co. of Northern Illinois, 299 Ill 112.

“In Village of Clayton v. Brooks, 150 Ill 97, this court said: ‘The law is, we think, well settled, that knowledge of the defect in the sidewalk, by the person injured, before he goes upon the same or before injury, does not per se establish negligence on his part. . . . “It is plain that one may exercise due care with full knowledge of the danger to which he is exposed or to which he lawfully exposes himself. This certainly is not contributory negligence.” ’ In the same case (p 106,) it was said, quoting from Sherman & Redfield on Negligence: ‘The mere fact that a traveler is familiar with the road, and knows of the existence of a defect therein, will not impose upon him the duty to use more than ordinary care in avoiding it. . . . Such knowledge is a circumstance, and perhaps a strong one, but it should be submitted, with the other facts of the case, to a jury, for them to determine, whether, with such knowledge, the plaintiff exercised ordinary care in proceeding on a way known to be dangerous, or, in proceeding, used ordinary care to avoid injury.’ ”

From our examination of the record we conclude there is sufficient evidence of plaintiff’s exercise of due care to submit that issue to the jury, and the jury’s verdict is not contrary to the manifest weight of the evidence.

The order to the Circuit Court of Madison County is, accordingly, reversed, and the cause remanded with directions to enter judgment on the verdict.

Order reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.

       Scoggins v. Village of Hartford, 86 Ill App2d 233, 229 NE2d 550. Scoggins v. Village of Hartford, 104 Ill App2d 403, 244 NE2d 433.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Craig Christman, Defendant-Appellant.
    Gen. No. 70-11.
    Second District.
    August 26, 1970.
    Rehearing denied September 25, 1970.

      Dixon, Devine, Ray & Morin, of Dixon, for appellant.
    Albert N. Kennedy, State’s Attorney of Lee County, of Dixon, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

A complaint filed in the Circuit Court of Lee County charged the defendant, Craig Christman, with the offense or burglary in violation of Ill Rev Stats 1967, c 38, § 19-1. Thereafter, the complaint was dismissed and a criminal information charging the burglary was filed to which the defendant entered a plea of guilty and applied for probation. The trial court denied the application for probation and sentenced the defendant to a term of not less than three nor more than five years in the Illinois State Penitentiary. The trial court denied defendant’s post-trial motions for a rehearing on probation, arrest of judgment, and for a new trial. This appeal is from the judgment and from the order denying all post-trial motions.

Defendant contends that the information charging the offense is defective and void; that a defective information voids a conviction, even upon a plea of guilty; and that the trial court abused its discretion in refusing to allow defendant to withdraw his plea of guilty allegedly extracted on the firm belief that defendant would receive probation.

The original criminal complaint was filed by a Howard Leffelman and charged that on the second day of August, 1969, Craig Christman committed the offense of burglary in that “he did enter into the property of Howard Leffelman at 4 a. m. August 2, 1969 without consent or authority and with intent to commit therein a theft. Said property is a meat market located in Sublette Township, Lee County, Elinois,” in violation of Ill Rev Stats 1967, c 38, § 19-1. The complaint was dismissed and on August 14, Assistant State’s Attorney Edwin Merrick filed a criminal information which, because of the issues presented, is set forth as follows:

INFORMATION
State of Illinois
15th Judicial Circuit In the Circuit Court
Lee County
August 14,1969
Now on this day comes into open Court, in his own proper person, Edwin W. Merrick, Assistant State’s Attorney to the State of Illinois, in and for said County, in the name and by the Authority of the People of said State of Elinois, and prosecutes in this behalf for and on behalf of said People, and informs said Court that Craig Christman on August 2, 1969 at and within said County and State committed the offense of Burglary in violation of Ill Rev Stats 1967, c 38, § 19-1,
In that without authority he knowingly entered a building, the property of Howard Leffelman, at approximately 4:00 a. m. August 2, 1969, with intent there and then to commit a theft.
contrary to the statute in such case made and provided, and against the peace and dignity of the same People of the State of Illinois.
/s/ Edwin W. Merrick Assistant State’s Attorney in and for said Lee County, Elinois.

Defendant moved to arrest judgment alleging the information was defective because it neither describes the premises, locates said premises or places said premises in the County of Lee. It is admitted that the form portion of the information does state the County of Lee, but that nowhere in the body of the information is the County named wherein the alleged offense occurred. Of course, the body of the information does several times refer to “said County” which quite logically means the county being identified by reference as “Lee County.”

In The People v. Williams, 37 Ill2d 521, 229 NE2d 495, contention was made, as here, that the complaint was void because it did not allege the county in which the offense was committed. In that case, it was held that the court must look at the entire complaint in the case to see if an event as described took place in the county named in the caption, and concluded that it was not aware of any decision of the court holding that the caption of a charging document must be ignored “when there is no conflict between the caption and the body of the complaint.” The court therefore held that there was no reason not to read the caption as part of the complaint, and when so read, the complaint sufficiently designates the county in which the offense is alleged to have been committed. Although we have an information in this case, the law must be the same regardless of whether we are dealing with an information or a complaint. It is to be noted also that the complaint hereinbefore mentioned as being filed and thereafter withdrawn does state the county, time, place and location.

Defendant cites The People v. Williams, 30 Ill2d 125, 196 NE2d 483, for authority to the effect that where no street address or more specific location in the county is given the defendant does not have sufficient information to enable him to prepare his defense. That case did so hold and it also held that a defective indictment cannot be helped by a Bill of Particulars. However, in The People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, at pp 531-2, it was stated:

“However, in People v. Williams, 30 Ill2d 125, 196 NE2d 483, which also arose under the old statute, we affirmed an order quashing an indictment for burglary which alleged only that a building owned by a named person and allegedly entered was situated in Cook County, holding that such an indictment did not give the defendants sufficient information to prepare their defense. We have reexamined our opinion in Williams and are of the opinion that it was incorrect. Accordingly, People v. Williams, 30 Ill2d 125, 196 NE2d 483, is overruled. See People v. Reed, post, p 535.”

In The People v. Reed, 33 Ill2d 535, 213 NE2d 278, it was held that a burglary indictment which does not allege a specific street address of a building allegedly burglarized may require the granting of a motion for a Bill of Particulars where defendant needs such information to properly prepare his defense. It is also said that an indictment which does not contain a street address does not necessarily contain a fatal defect which renders it void. The court concluded that the indictment did not contain a fatal defect and that by pleading guilty to the indictment defendant waived all defects or insufficiencies in the form of the indictment including the lack of a street address. Based upon these cases we conclude that the information here did not contain a fatal defect which would render it void and that the defendant, by pleading guilty, waived all defects or insufficiencies in the form of the information.

The defendant, in attacking the information, also maintains that the ownership of a building in which the burglary took place was not alleged in that the information merely referred to “a building, the property of one Howard Leffelman.” In Transcontinental Co. v. Emmerson, 298 Ill 394, 131 NE 645, p 400, property is defined as, “property itself, in a legal sense, is nothing more than the exclusive right ‘of possessing, enjoying and disposing of a thing,’ which, of course, includes the use of a thing.” We believe that the information sufficiently alleged ownership of the building in Howard Leffelman.

Because we have decided the information is not void we do not reach the issue advanced by defendant that a defective information voids conviction even on a plea of guilty.

Finally, defendant contends that it was an abuse of discretion for the trial judge to refuse to allow defendant to withdraw his plea of guilty, which he states was extracted from him on the belief that he would receive probation. This claim necessitates a recital of certain pertinent facts. Defendant says his plea was entered in reliance upon the offer of probation made by Assistant State’s Attorney Edwin Merrick to his attorney in oral discussions on August 7 and 14,1969. He also states that Merrick suggested to his attorney that defendant not bring any witnesses to the combined hearing for aggravation, mitigation and probation, other than defendant himself, and in return, Merrick would agree not to submit anything in aggravation except a former plea of guilty to burglary made by the defendant seven years previously. On August 28, the combined hearing date, the court heard defendant’s testimony, which contained among other things his admission that he and others broke into Leffelman’s meat market but did not steal anything, and Merrick presented a record of the previous conviction. At that time the court reserved its ruling until September 10, 1969. On September 9 a Grand Jury convened, at which time it is alleged, by agreement between defendant’s attorney and Merrick, the defendant appeared before the Grand Jury and testified that he and two others entered the building owned by Howard Leffelman. The agreement supposedly was that Merrick would advise the judge of defendant’s cooperation before the Grand Jury as an aid to defendant’s securing probation. It is further stated that Merrick did so advise the judge of defendant’s cooperation. On September 10, 1969, the court denied probation and Merrick made no recommendation for probation.

On October 6,1969, defendant filed Ms motions in arrest of judgment, for a new trial, and for a rehearing on the request for probation. These motions were supported by affidavits of defendant’s attorney, Ms mother and wife, and a Nancy Weber, which stated that defendant’s attorney was notified by Assistant State’s Attorney Merrick prior to the August 28 hearing that it would not be necessary to produce any witnesses in defendant’s behalf, and that the plea of guilty was based upon promises and inferences of Merrick. Merrick filed an affidavit in opposition thereto, which recited that defendant’s attorney sent Mm a letter on August 8, 1969, stating that there was no question but that the defendant was guilty of the offense charged and that he would have the defendant enter a plea of guilty at the arraignment and would appreciate a recommendation that probation be granted to the defendant; that he, Merrick, informed defendant’s counsel that he had no knowledge of defendant’s background and therefore could not say whether a recommendation for probation could be made; that just prior to arraignment he received a copy of court records showing a prior conviction of defendant on a charge of burglary, and that therefore he could not recommend probation, but would be compelled to present evidence of the prior conviction to the judge. The affidavit, continuing, stated that he did not at any time advise defendant’s attorney that he should not bring witnesses to the hearing on probation, aggravation and mitigation and, further, that he was surprised when defendant failed to have witnesses present at the time of the probation hearing. He further stated that defendant testified before the Grand Jury, as above mentioned, and he reported that fact to the judge. The hearings on the post-trial motions were held on October 6. Although one post-trial motion is described as a motion for rehearing on probation, a number of people, including the president of the Iron Workers’ Union, a high school teacher, and a police officer of Mendota, testified that they thought the defendant should be granted probation despite his previous criminal record. Thereafter, the judge denied all three motions and filed a memorandum opinion.

Defendant has cited many cases for the proposition that it is an abuse of discretion for a trial judge to refuse to allow a defendant to withdraw his plea of guilty if the plea was extracted on a promise of probation or a more lenient sentence. The law on this matter was summarized in The People v. Walston, 38 Ill2d 39, 230 NE2d 233, wherein it was said at pp 42, 43, and 44:

“ ‘Permission to withdraw a plea of guilty and enter a plea of not guilty is a matter within the discretion of the (trial) court, yet it is a judicial discretion which should always be exercised in favor of innocence .... Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel, or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty. . . .
“ ‘The mere fact, on the other hand, that an accused knowing his rights and the consequences of his act, hopes and believes that he will receive a shorter sentence or milder punishment by pleading guilty than he would upon a trial and conviction by a jury, presents no ground for permitting the withdrawal of the plea after he finds that his expectation has not been realized.’ People v. Morreale, 412 Ill 528, 531-2, 107 NE2d 21; see also People v. Grabowski, 12 Ill2d 462, 467-8, 147 NE2d 49; People v. Temple, 2 Ill2d 266, 275-6,118 NE2d 271.”
“In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court.”
“We do not believe that a statement of innocence, accompanied by a motion to withdraw a plea of guilty by a defendant theretofore adequately informed of the nature of the charge to which he was admitting guilt and adequately admonished as to the possible consequences of such plea, is sufficient of itself to require allowance of such motion.”

There is no contention that the court did not properly admonish the defendant before the plea of guilty was received. The defendant admitted his guilt, testified as to his guilt before the trial judge and also before the Grand Jury. It is therefore apparent that he has no defense worthy of consideration by a jury and the ends of justice will not be better served by submitting the case to the jury. As previously noted, a defendant has no absolute right to withdraw his plea of guilty, and we perceive no injustice in the refusal to allow the defendant to withdraw his plea of guilty. Furthermore, the affidavits of defendant’s attorney, his mother, wife, and Nancy Weber are contradicted and denied by Assistant State’s Attorney Merrick, not only in his affidavit, but in his testimony which the judge heard at the hearing on the motions.

A similar factual situation was presented in The People v. Kwiek, 18 Ill2d 121, 163 NE2d 474. In that case defendant contended that his counsel had induced him to plead guilty because an Assistant State’s Attorney had given assurance that he would receive probation if he pled guilty. The Assistant State’s Attorney denied that he had ever agreed to recommend probation and the court in affirming the judgment stated atp 124:

“The defendant’s claim that the trial judge abused his discretion assumes the truth of his own testimony and that of the attorney who then represented him. But the trial judge was not required to believe that testimony. He could have regarded it as at best improbable and at worst false. The record does not show that the judge abused his discretion. On the contrary, it shows that he was scrupulous to safeguard the defendant’s rights.”

Likewise, in our case the trial judge apparently chose to believe the Assistant State’s Attorney rather than the defendant’s evidence. The trial judge did not abuse his discretion and the judgment is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


text:
    Super Valu Stores, Inc., an Illinois Corporation for the Use and Benefit of The Travelers Insurance Company-The Travelers Indemnity Company, Plaintiff-Appellant, v. Darlene Ruth Stompanato, d/b/a Our Place, DeEtte C. Gilman, and Albert C. Handel and Elizabeth Jane Handel (Also Known As Betty Handel) d/b/a Handel’s Steak House, Defendants-Appellees.
    Gen. No. 70-51.
    Second District.
    August 26, 1970.
    Fearer and Nye, of Oregon, for appellant.
    Klockau, McCarthy, Schubert, Lousberg & Ellison, Gerry M. Rinden, of Rock Island, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Carroll County entered February 16, 1970, that dismissed a complaint brought under the provisions of the Dram Shop Act by a workmen’s compensation insurance company in the nature of a subrogation.

On March 29,1967, Dale P. Theesfeld was injured in an accident while a passenger in an automobile driven by Wallace D. Prowant, Jr. Theesfeld subsequently filed an application for compensation under the Workmen’s Compensation Act and an award was made by an arbitrator of the Industrial Commission on December 10,1968. The decision of the arbitrator found that Theesfeld was an employee of Super Valu Stores, Inc. at the time of the accident and that his injuries were sustained “. . . out of and in the course of his employment . . . .”

On September 17, 1969, plaintiffs brought suit against the various defendants as the owners and operators of two taverns located in Carroll County. The complaint alleged that Prowant was intoxicated at the time of the accident; that his intoxication proximately caused the accident; and that the defendants either gave or sold him alcoholic beverages that caused or contributed to his intoxication and that a cause of action thereby accrued pursuant to the provisions of section 135 of chapter 43 of the Ill Rev Stats (Dram Shop Act). The defendants moved for a dismissal on the grounds that the suit was not “commenced within one year next . . .” after the accident, as required by the statute. The trial court granted the motion and this appeal followed.

The plaintiff contends that their cause of action did not accrue until December 10, 1968, the date of the award, and that, therefore, their dramshop suit was brought within the proscribed time limits.

Section 138.5(b) of the Workmen’s Compensation Act (Ill Rev Stats 1967, c 48, § 138.5(b)) provides that where an injury for which compensation is payable was caused under circumstances creating a legal liability for damages on the part of a third person, the employer is entitled to reimbursement from any settlement or payment received by the employee from such third party. That section provides further as follows:

“If the injured employee or his personal representative agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.”

It further provides that in the event the employee fails to institute proceedings against the third party, the employer may so do at any time “. . . prior to 3 months before such action would be barred by law . . . .”

The plaintiff cites the cases of Elaborated Ready Roofing Co. v. Chicago & W. I. R. Co., 222 Ill App 181, and Star Brewing Co. v. Cleveland, C. C. & St. L. R. Co., 275 F 330, and several cases from other jurisdictions to support the contention that section 138.5(b) of the Workmen’s Compensation Act creates a new cause of action in the employer.

Under the old Workmen’s Compensation Act, the employer “took over” the rights of the employee to sue the tort-feasor and the employee’s own right of action was abolished if the third party was also bound by the act. It was argued by an employer in the case of Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill 322, 138 NE 658, that the employer’s right to sue the tort-feasor must inevitably be a new cause of action, since the employee’s right no longer existed and that, therefore, it was not subject to the normal two-year statute of limitations for personal injuries. The Supreme Court rejected that argument and the theory of the Circuit Court of Appeals (7th Circuit) in Star Brewing and held that the act did not create a new cause of action in the employer but that it was “. . . the same right of action the employee had before the adoption of the act, transferred to the employer, and the same Statute of Limitations applies to a suit by the employer which applied to the employee.” The Schlitz case was subsequently followed by the courts in Illinois both before and after the adoption of the new Workmen’s Compensation Act. Walsh v. Central Cold Storage Co., 324 Ill App 402, 58 NE2d 325 (1944); Grasse v. Dealer’s Transp. Co., 412 Ill 179, 106 NE2d 124 (1952). The lien rights given to the employer by section 138.5(b) were considered in two later cases.

In Danville Producers Dairy v. Preferred Risk Mut. Ins. Co., 33 Ill App2d 359, 179 NE2d 439 (1962) an employee of Danville Dairy was killed in the course of his employment on December 29, 1956. The widow filed a wrongful death action against the third-party tort-feasor on February 1, 1957, and settled the case on December 27, 1957. Notice of the suit had been furnished to Dan-ville who did not intervene in the suit, as permitted by another paragraph of section 138.5(b), but chose to rely on its lien rights. Prior to settlement of the lawsuit, Danville’s workmen’s compensation carrier commenced compensation payments to the widow and notified the tort-feasor’s insurer of a subrogation claim pursuant to the Act. The insurer paid directly to the widow and on December 28,1959, the compensation carrier brought suit on the wrongful death.

The Appellate Court, first district, affirmed the determination of the trial court that the wrongful death action was barred by the statute of limitations and stated that to hold that the compensation act created a new cause of action would be contrary to the Schlitz and Walsh cases and “. . . unwarranted judicial legislation.”

The court further said that the lien right was to be satisfied from the money recovered by the employee and ended, somewhat ambiguously, as follows:

“And we do not reach the issue of whether within the appropriate period of limitations an employer may enforce his statutory lien as a separate cause of action against a third party or his insurance carrier.”

In Employers Mut. Gas. Co. v. Trimon Elevator Co., 71 Ill App2d 124, 217 NE2d 391 (1966) the employee, Richard Moore, was injured on March 15, 1966, while in the employ of Clark-Maple Chevrolet. Moore brought suit against Trimon Elevator as a third-party tort-feasor and the plaintiff, as the carrier for Clark-Maple, notified Trimon of their claim for a lien under the Workmen’s Compensation Act. On November 19, 1957, plaintiff sent further notice to Trimon stating that they had compensated Moore in the amount of $1,500 to that date and demanding reimbursement. On February 6, 1963, a settlement was effected in the suit between Moore and Trimon, Trimon paid $4,000 directly to Moore, and the suit was dismissed. On February 25, 1964, plaintiffs brought suit against Trimon and Moore to enforce their lien rights, which was dismissed by the trial court on the grounds of the statute of limitations.

On review, the court discussed the Danville case at length and did not agree that the lien rights of the employer were subject to the same time limitations as those related to the injury itself. The court pointed out that the employer did not bring the action as a subrogee or transferee of the rights of their injured employee, as in the Schlitz case, but “. . . rather is bringing the action in its own name in order to enforce its right against both the employee and the third-party tort-feasor who have failed to give proper regard to the employers’ lien rights.” The court reversed the trial court and held that the plaintiff’s cause of action to enforce its statutory lien accrued on February 6, 1963, the date of the settlement, and was, therefore, timely filed.

In the course of its opinion in the Trimon case, the court stated that “In an interpretation of the (workmen’s compensation) statute the court must supply that which is missing from the statute in a manner consistent with the overall purpose of the act and consistent with other cases.” The plaintiff has seized upon this language and argues that since the purpose of the Workmen’s Compensation Act is to indemnify an employer from third party tort-feasors liable to the employee that his action should not be barred by the limitations of the Dram Shop Act.

As we have seen, the lien rights given to an employer by section 138.5(b) are “upon any award, judgment or fund out of which such employee might be compensated from such third party.” Both the Danville and Trimon cases are concerned with the rights of the employer or his insurance carrier against these funds where a lien has been effected although they apparently reach different conclusions. In our case it is not contended that the plaintiff has established or even claimed a lien and, of course, there are no funds against which one could be claimed. Therefore, neither case can be considered as applicable to the situation before us.

There is a further significant distinction from the Trimon case. That decision was concerned with an ordinary two-year statute of limitations on personal injury actions, that is, on the remedy itself. As is well known, the time element contained in the Dram Shop Act, being a statute creating a right that did not exist at common law, is not a mere statute of limitation but an integral part of the right itself. “Thus in unmistakable language, the legislature has said that any person having a right of action against a Dramshop keeper cannot bring suit thereon after the expiration of the one-year limitation.” Shelton v. Woolsey, 20 Ill App2d 401, 403, 156 NE2d 241; Lowrey v. Malkowski, 20 Ill2d 280, 284, 170 NE2d 147.

Therefore, the failure to commence suit within one year after the date of the accident meant that there was no longer any cause of action in anyone under the provisions of the Dram Shop Act and that there would be no “award, judgment or fund” to which a lien could ever attach. To hold otherwise, regardless of the purpose of the Workmen’s Compensation Act, would be a clear distortion of the meaning of the Dram Shop Act. The judgment of the trial court should therefore be affirmed.

Affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


text:
    William T. Elizer, Plaintiff-Appellee, v. Louisville & Nashville Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 69-22.
    Fifth District.
    August 27, 1970.

      Walker & Williams, of East St. Louis (Edward G. Maag, of counsel), for appellant.
    McGlynn & McGlynn, of East St. Louis (James Mc-Glynn, of counsel), for appellant.
   GOLDENHERSH, J.

Defendant, Louisville & Nashville Railroad Company, appeals from the judgment of the Circuit Court of St. Clair County entered upon a jury verdict in the amount of $130,000.00.

Plaintiff’s cause of action is brought under the Federal Employers’ Liability Act (45 USCA 51 et seq.) and arises out of an occurrence on December 24, 1966 while he was employed as a switchman in Nashville, Tennessee.

Defendant’s first contention is that the verdict is so grossly excessive as to require the granting of a new trial.

Plaintiff was injured when his right leg was immersed in scalding hot water to a point just above his knee. He was taken to a hospital where he was confined until February 1, 1967. He had first and second degree burns on his right leg from the ankle to the junction of the lower and middle third of his thigh. He developed areas of secondary infection. The burns were painful and he was given Demerol and later, Empirin or Darvon. During the period of hospitalization he was treated by defendant’s district surgeon.

Following discharge from the hospital he was seen at the surgeon’s office eight times. On March 3, 1967, the surgeon recommended plaintiff enter the hospital for skin grafting.

Plaintiff rejected the services of defendant’s surgeon and consulted a plastic surgeon. He was hospitalized and on March 13, 1967, extensive plastic surgery was performed on his leg. He was bedfast until April 10, 1967, and was discharged from the hospital on April 4. He was seen by the doctor on May 8, June 19, and on August 3, 1967, was released for work. He returned to the surgeon’s office on September 7, and some areas of graft were still draining. He was hospitalized and on October 2, 1967, corrective surgery was performed. He was discharged on October 6th. He was seen by the doctor on November 30, 1967 and again on February 2, 1968. He was having difficulty with numbness and pain in the leg, particularly when he worked outside in cold weather.

On several occasions when seen by the plastic surgeon plaintiff complained of weakness in the ankle and difficulty in walking on uneven surfaces because of its weakness and tendency to turn. He was referred to an orthopedic surgeon for X-ray and examination.

The doctor stated that to a reasonable degree of medical certainty it was his opinion that the weakness of the ankle and its tendency to turn might be a permanent condition, that the injury could cause impairment of his ability to perform the duties of a switchman, was causing pain now as well as in the past, and may well cause pain and discomfort in the future, possibly requiring further medical attention and treatment.

At the time of the injury plaintiff was 24 years of age. He received a high school diploma upon successful completion of a General Education Test. His seniority as a switchman dates from November 12, 1963. His earnings in 1966 were in excess of $7,000. In 1967, he earned $2,200. As of the date of trial, May 22, 1968, his earnings in 1968 were less than $500.00.

The assessment of damages is a jury function and our conclusion upon careful examination of the record is best described in the following statement found in Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63, at page 453:

“We are not unmindful of our obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. This we have done, and we conclude from the evidence that although the verdict may well be in excess of the amount which the judges of this court would have allowed if they had heard the evidence and made the original determination, yet we do not believe that it is so excessive as to show passion or prejudice.
“We therefore conclude that the verdict and judgment below are correct and the judgment is affirmed.”

Defendant contends it was deprived of a fair trial as the result of misconduct on the part of plaintiff’s counsel. Defendant argues that in his direct examination of the plaintiff, plaintiff’s counsel “set the stage” for the “character assassination” of defendant’s district surgeon. We have examined the transcript and find that only one objection was made during the portion of the interrogation of which defendant complains and it was sustained.

Defendant argues that plaintiff’s counsel, pursuing the course of “character assassination” made improper allusion in final argument to a conversation, not in evidence, between the defendant’s surgeon and another doctor whom plaintiff had consulted. The record shows the trial court sustained defendant’s objection. Defendant complains of other remarks of plaintiff’s counsel, to some of which no objections were made.

A detailed discussion of these remarks is of no precedential value nor is it necessary to discuss the authorities cited by the parties. The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill 486, 29 NE 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. Chicago v. Chicago Title & Trust Co., 331 Ill 322,163 NE 17.

Citing cases which hold that a party who calls a witness vouches for, and may not impeach him, defendant argues that since its district surgeon’s testimony was adduced by evidentiary deposition in plaintiff’s case, plaintiff was barred from criticizing him in final argument which was designed to impeach him. This theory was not the basis of objection in the trial court, and although paragraph 4 of defendant’s posttrial motion, by liberal construction, might be deemed to include it, it is raised in this court for the first time in defendant’s reply brief, and under the circumstances will not be further considered.

Defendant contends the court erred in giving plaintiff’s instruction No. 16 because it submitted to the jury the question of damages for future medical care and treatment (IPI 30.06). The record reflects that Dr. Lissner, the plastic surgeon, testified to a reasonable degree of medical certainty that plaintiff might require further medical treatment. Defendant’s medical witness testified there was atrophy in the injured leg which should be corrected through therapy and exercise. We have examined the cases upon which defendant relies (Panepinto v. Morrison Hotel, Inc., 71 Ill App2d 319, 218 NE2d 880; Lauth v. Chicago Union Traction Co., 244 Ill 244, 91 NE 431; Meltzer v. Shklowsky, 321 Ill App 400, 53 NE2d 272) and find them distinguishable in that here, unlike those cases, there is medical testimony to a reasonable degree of medical certainty that future medical treatment might be necessary.

Defendant’s final contention is that the court erred in giving plaintiff’s instruction No. 19 (IPI 34.04) because there is no evidence that plaintiff might suffer future loss of earnings. The testimony of plaintiff’s surgeon and plaintiff’s testimony of pain, and difficulty with his leg, supply an evidentiary basis for submission of this element of damage to the jury.

We find no reversible error in this record and the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: PER CURIAM.

text:
    John Franklin Hockett, Plaintiff-Appellant, v. Mary Elizabeth Hockett, Defendant-Appellee.
    Gen. No. 69-104.
    Fifth District.
    August 27, 1970.

      Meyer & Meyer, of Greenville, for appellant; James E. Buchmiller, of Greenville, for appellee.
   Opinion by

PER CURIAM.

Not to be published in fulL