author: RICHARDS, J.

text:
    Edward B. Akin, Plaintiff-Appellee, v. Francis B. Akin, Defendant-Appellant.
    Gen. No. 11,182.
    Fourth District.
    June 24,1970.

      John E. Howarth, of Springfield, for appellant.
    John J. O’Toole, of Chicago (Coneannon, Dillon, Snook & Morton, of counsel), and Robert D. Brodt, of Springfield, for appellee.
   RICHARDS, J.

The cause here under consideration is a consolidation of a separate maintenance proceeding and a divorce proceeding and comes on an appeal by the wife from a decree granting a divorce to the husband on the grounds of extreme and repeated mental cruelty. The questions presented by the wife for review are whether her conduct was sufficient to constitute extreme and repeated mental cruelty within the meaning of the Divorce Act, and, if so, whether the husband carried the burden of proving that he did not provoke such conduct.

Originally herein, on June 27, 1967, a decree for separate maintenance was awarded the wife after an uncontested hearing on a complaint and answer. The uncontroverted evidence given at that hearing was very short and although (as such was later brought out at the divorce hearing) the wife was aware that her husband had been publicly dating a lady friend, who will be referred to herein as Mrs. T., for some years prior thereto, the only evidence presented was to the effect that on October 28, 1966, the husband left their home; that the wife asked him not to leave; that the husband had not returned to the home and that the wife did not do anything to provoke the husband’s leaving. No evidence was presented by the husband at that hearing. The husband’s complaint for divorce was filed on April 25, 1968, and alleged that the wife had been guilty of extreme and repeated mental cruelty between the dates of August 20, 1967, and September 15, 1967, and that such conduct caused the husband great mental anguish and emotional distress, all without provocation or cause on his part. On April 3, 1969, the decree for divorce here appealed from was granted to the husband after a contested hearing on the complaint and answer.

In the review of cases involving cruelty for divorce purposes, it is necessary to view the conduct in question in regard to the factual background of the particular case. This is recognized in 24 Am Jur2d, Divorce and Separation, § 32 (p 203) where it is stated:

“It is well recognized that no exact inclusive and exclusive definition of legal cruelty can be given, and the courts have not attempted to define it, but generally content themselves with determining whether the facts in the particular case in question constitute cruelty.”

In support of the allegations of extreme and repeated mental cruelty on the part of the wife, the husband testified that the wife had, between the dates above mentioned, made several phone calls to him at his office in his place of work and during such calls she: called him vile names; said that he was not a fit father to their son; said that most of the wife’s ills were the husband’s fault; said that she was going to kill herself; said that the husband was the father of their grandson and that she was going to call the governor. The significance of her threat to call the governor was that the husband held his office as a political appointee. The husband also testified that other people in the office where he worked knew about some of the calls, and this caused him to be embarrassed. Regarding these phone calls, it was brought out in the cross-examination of the husband and by the testimony of the wife that: the couple’s son and the son’s wife were having marital difficulties and that the reason for the calls was that the wife was urging the husband to talk to their son about the son’s leaving his wife; that as to the wife’s threat of suicide, the husband stated that he did not believe her as he had heard such threats so many times before that he got used to it, and that what the wife had actually said regarding the grandson was that the husband looked so much like the grandson that he could have been the father. On cross-examination the husband testified that he did not know of anyone else having listened to the phone calls. Besides the evidence of the phone calls, the only other evidence presented by the husband in support of his allegations was testimony that the wife had confronted the husband in the home of Mrs. T., and during the 15 or 20 minutes she was there an argument and a scuffle occurred involving the wife, the husband, Mrs. T. and Mrs. T’s daughter, wherein some of the participants were scratched, were pushed down, had their glasses knocked off and such, in an attempt to cause the wife to leave Mrs. T’s home. As to the effect the conduct of the wife had on the husband, the husband testified that the phone calls and the confrontation in Mrs. T’s home had a terrible effect on him because he was embarrassed no end and had, about a year prior to the hearing, gone to a doctor because he was nervous and upset. The other participants in the argument and scuffle at Mrs. T’s home testified that the husband was very embarrassed at the incident. Other testimony was introduced to the effect that during the time complained of the husband seemed nervous and not the same person he had been. The wife’s testimony as to the reason for her visit to Mrs. T’s home while her husband was there was that in a phone conversation earlier that day he had refused her request that he talk to their son regarding the son’s marital problems, and that she had then followed him to Mrs. T’s home to try further to persuade him to do so.

Regarding the relationship and the background thereof between the husband and Mrs. T., the evidence showed: that after the parties had been married some 20 years they both met Mrs. T. at a picnic some 6 years before the hearing, and that some time after the picnic the husband called Mrs. T. and asked her to go out to dinner, which she did; that they had seen each other regularly after that; that on weekends the husband had come to Mrs. T’s home at noon and stayed until late at night and they had been by themselves during these periods; that Mrs. T. had picked him up at his place of work and they had embraced and kissed in public. The husband testified that they had seen each other quite frequently after the separate maintenance decree as he felt a need for female companionship, but that he had no romantic interest in Mrs. T. The evidence further showed that the husband had Mrs. T’s picture on his desk, and that he and Mrs. T. exchanged gifts at Christmas and that the husband bought presents for Mrs. T’s daughter. A private investigator testified that while this couple was under her surveillance, the husband and Mrs. T. had met and embraced in front of the building where he worked, and later in a parking lot near a restaurant in which they ate; that later they were together in a parked car at night along a country road and that his car had been parked next to Mrs. T’s home both in the daytime and late at night. The wife testified that when she came into Mrs. T’s home on the occasion of the abovementioned scuffle, Mrs. T. was in the kitchen ironing the plaintiff’s clothes. This relationship had been known to the wife, as Mrs. T. testified that the wife had phoned her many times, and on one occasion visited her home to discuss her relations with the husband and to ask her to leave her husband alone. At the trial the wife attempted to present further evidence of the husband’s relationship with Mrs. T„, to the effect that the husband had admitted to the wife that he had had sexual relations with her, but an objection to such was sustained, the court stating that as these matters could have been brought out at the prior separate maintenance hearing the proof at the divorce hearing would be limited to occasions after the separate maintenance decree. This ruling was erroneous as the issue decided in the separate maintenance proceeding was whether the wife was living apart from the husband without fault on her part, and such issue could have been decided for her without adjudicating whether grounds for divorce did or did not exist. Van Dolman v. Van Dolman, 378 Ill 98, 37 NE2d 850.

Now, in view of this evidence, we will first take up the question as to whether such supported the finding that the wife was guilty of extreme and repeated mental cruelty to the husband. The Illinois courts have interpreted the Divorce Act twice since mental cruelty was added by the 1967 Legislature as grounds for divorce, those cases being Stanard v. Stanard, 108 Ill App2d 240, 247 NE2d 438, and Hayes v. Hayes, 117 Ill App2d 211, 254 NE2d 288. Both cases adopt the widely recognized doctrine that:

“. . . Whether certain acts will constitute physical or mental cruelty still depends upon the total factual background surrounding the conduct under question. This includes the particular emotional and personal makeup of the parties, and the varying circumstances under which any of the incidents occurred that may have given rise to the acts.”

Thus the conduct complained of is regarded as to its subjective effect on the complaining spouse. 24 Am Jur2d, Divorce and Separation, § 36 (p 206) states it thus:

“The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”

As to what the actual effect upon the complaining spouse must be, the conduct must have been such that would necessarily and inevitably cause the aggrieved one's life, person or health to be endangered or to render his life miserable and unendurable. Stanard v. Stanard, 108 Ill App2d 240, 247 NE2d 438; Johnson v. Johnson, 125 Ill 510,16 NE 891.

In applying these well recognized doctrines to the factual background surrounding the conduct under question, the following are our views: It may be conceded that the wife was intemperate in her language and conversations in the phone calls to her husband and did not act in a reasonable manner in refusing to leave Mrs. T’s home when requested, causing her forcible ousting. However, in conceding that her conduct was unreasonable, such does not necessarily constitute extreme and repeated mental cruelty toward the husband when viewed with the facts in this case. It was the husband’s burden of proving that the acts complained of were sufficient to cause distress, and did in fact, endanger his health or render his life as a husband miserable and unendurable. The husband admitted that he knew of no one else who knew of the phone calls. The receptionist was called in an attempt to show knowledge of the calls by others to his embarrassment, but she stated that she did not inform the husband of her knowledge of them until the day before the trial. His wife’s remarks that their grandson looked like him was seized upon for his allegation that she had accused him of fathering the child and thus accused him of adultery. Such an inference could hardly be drawn from such remark. He testified that the altercation in Mrs. T’s home embarrassed him no end. However, his embarrassment could just as well have been caused by the fact that while he was visiting Mrs. T., his legal wife walked in. Testimony by the receptionist, Mrs. T, and Mrs. T’s daughter was presented to show that during the time complained of, the husband was nervous and not the same person he had been. It would seem that this nervousness could be just as attributable to the fact that he could not get rid of his wife, as the record shows that after the 1967 Legislature amended the Divorce Act he had filed two prior divorce actions which had been dismissed. Even so, conduct by one spouse that would cause the other spouse to become nervous and upset under the circumstances here could not be held to be extreme mental cruelty. Nor could the conduct be held to have made his living as the husband of the wife unendurable as he had already left the home without fault on the wife’s part, as was found in the aforesaid decree of separate maintenance.

In regard to the husband’s burden of proving lack of provocation, in order to sustain such the husband testified that to his knowledge he did nothing to cause his wife to act like she did. He blandly contends in his brief in this court that Ms relationship with Mrs. T. was purely social in nature and not of a sexual nature, and that if the wife had any provocation, “it was based upon the inter-abstract workings of her mind and not upon any acts of the plaintiff.” As against this contention, the record shows an open, public, frequent, notorious and affectionate association with Mrs. T. over a period of six years. Such a display of affection by the husband to Mrs. T. and Mrs. T’s daughter, rather than to their son, and the husband’s undenied refusal to aid the wife in resolving the troubled affairs of their son, would naturally cause the wife’s resentment and draw intemperate remarks and actions from her. We hold that the husband did fail to necessarily prove lack of provocation for the conduct of his wife.

We recognize, as the trial court apparently did, that divorce might be a better solution than separate maintenance, as the parties have apparently separated permanently without a chance for reconciliation. However, the wife elected to have her remedy in separate maintenance and is contesting the complaint for divorce. Divorce cannoc be forced upon her, as divorce can only be granted upon sufficient proof of the grounds set forth under statute. Anything short of the requirements therein will not suffice. Stanard v. Stanard, 108 Ill App2d 240, 249, 247 NE2d 438. The misconduct on the part of the husband was the cause of the parties living apart, and provocation for the conduct the husband complains of as grounds for divorce. He cannot make his own misconduct the cause of his freedom from the bonds of matrimony. The mental anguish and emotional distress he complains of is the harvest of his own sowing.

For the foregoing reasons, the decree of the Circuit Court for divorce is reversed, and this cause is remanded to the Circuit Court with directions to reinstate the decree for separate maintenance.

Reversed and remanded.

SMITH, P. J. and TRAPP, J., concur.


source: Caselaw Access Project

author: EBERSPACHER, J.

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. LaCarttle Jones (Alias) Carter Jones, Defendant-Appellant.
    Gen. No. 68-36.
    Fifth District.
    June 25,1970.

      Russell H. Classen, of Belleville, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (William B. Starnes, Assistant State’s Attorney, of counsel), for appellee.
   EBERSPACHER, J.

Appeal from conviction of murder and armed robbery in the Circuit Court of St. Clair County. A jury rendered a verdict against the defendant, LaCarttle Jones, finding him guilty of murder and armed robbery. The court imposed a sentence of 199 to 200 years on the murder charge and 50 to 75 years on the armed robbery, the sentences to run concurrently.

The State produced the following evidence:

Soon after midnight on July 30, 1966, defendant and one later identified as John Patterson walked into the Skylark Liquor Store in East St. Louis operated by Mr. and Mrs. Skrabacz. Defendant produced a .45-calibre automatic and Patterson a revolver, and the two of them proceeded to rob the Skrabaczs of $190.

The silent alarm was sounded by a signal to the American District Telegraph office. The agent at the A. D. T. office notified the police. A police car about 3 blocks away from the scene at the time responded to the call. Two officers, Patrolman Gene Rittenhouse and Sgt. Frederick Hudson arrived in a police car. One of the two holdup men, allegedly LaCarttle Jones, was coming out of the store with Mr. and Mrs. Skrabacz in front of him at gunpoint when the officers arrived. The other holdup man was trailing behind. Sgt. Hudson and Patrolman Rittenhouse then got out of the car and proceeded towards the two, who by that time had seen the police officers.

As the police approached the holdup men, they began to flee. One of the men was wearing a red shirt and the State’s evidence is that LaCarttle Jones, wearing a red shirt, turned and fired a shot in the direction of the policemen. They proceeded into a passageway and a gun battle ensued. Patterson, the other holdup man, had already fled. The State’s evidence is that Jones engaged in the gun duel with the police officers and Sgt. Hudson was fatally wounded and died of the wounds he received. The other officer received a gunshot wound in a foot.

Defendant was apprehended some 10 to 20 minutes later not far from the scene of the holdup. He had suffered a gunshot wound and was taken to a hospital. The next morning a .45-calibre pistol was found under a shrub by the house where a man was seen to fall or stumble by a lady who lived in the neighborhood. While at the hospital, the defendant was identified by the two victims of the holdup as well as by a young man who was in the liquor store at the time. A tavern store owner by the name of Ben Stewart in the City of St. Louis had been held up five days prior to this robbery and his testimony was that one of the things taken in his holdup by this defendant was the same .45-calibre automatic pistol.

The defendant Jones testified and denied that he was ever in the Skylark Liquor Store. In regard to his wound, his testimony was that he was shot by accident while going through the passageway.

The defendant was brought to trial charged with three counts: (1) the murder of Frederick D. Hudson; (2) the armed robbery of Leo Skrabacz of the sum of $190; and (3) murder while committing the forcible felony of armed robbery in that he shot and killed one Frederick D. Hudson without justification. The jury had been qualified to recommend capital punishment but did not so recommend.

Before the jury was called and examined on voir dire, in response to the State’s Attorney requesting that the jury be qualified on the question of capital punishment, the court remarked:

“It seems to be pretty easy around here to do. Your last one we tried came in in about 25 minutes to recommend the death penalty. We had very, very few jurors that had any conscientious scruples against the imposition of the death penalty in a proper case.”

Defense counsel, upon being advised that jurors who opposed the death penalty would be excused for cause, objected.

The jury was called and the court advised them of the nature of the charges and the procedure to be followed which included the following:

“You will be qualified in this case for the death penalty, but before I begin my interrogation of the jurors, I want to explain to you the law in regard to the death penalty. In bringing in a verdict, if you find the defendant guilty of murder, you may or may not recommend the death penalty, and if you do not recommend the death penalty, I cannot impose it, but if you do recommend the death penalty, I may or may not impose the death penalty. That is my responsibility. Quite frequently a trial judge does not impose the death penalty, even though the jury recommends it. On the other hand, frequently a trial judge does impose the death penalty if it is recommended by the jury. If there are any questions about that, please feel free to ask me any questions you might care to while I am interrogating you on your qualifications. The first lady, what is your name?”

All prospective jurors were asked, “Do you have any conscientious scruples against the imposition of the death penalty in a proper case?” Upon answering “Yes” to that question, 9 were excused for cause. In addition, several of the jurors were asked “Do you feel you could recommend the death penalty here if you felt it was a proper case for it?” and answered “Yes.” One panel of four each responded “Yes” to the State’s Attorney’s question, “You are aware of the fact also that this jury that is being qualified for the death penalty that it is up to you to determine this after having heard all the evidence, (1) is the defendant Mr. Jones guilty; (2) whether or not you want to recommend the death penalty; you understand that is your function in the case?”

The defendant urges that the court erred in the following particulars: in excusing the tentative jurors and members of the voir dire panel for reasons of having conscientious scruples against recommending the death penalty; in making comments to the jury prejudicial to the defendant; in allowing the witness Ben Stewart to testify concerning a prior robbery by the defendant; and in receiving into evidence records of the defendant’s prior convictions for armed robbery in Arkansas and Tennessee. Each contention of the defendant shall be considered in order.

The defendant asserts that by qualifying the jury for capital punishment that the defendant is thereby denied his right to a fair trial as guaranteed under his constitutional rights. The defendant relies heavily upon the case of Witherspoon v. Illinois, 391 US 510, 20 L Ed 2d 776, 88 S Ct 1770 (1968). The Witherspoon case involved a murder conviction wherein the jury had been “qualified” to return a capital punishment recommendation and the sentence was death. In that case the court proceeded to exclude numerous veniremen because of their attitudes about the death penalty. In fact, only a few of the number excluded had stated they would under no circumstances vote to impose capital punishment. The Supreme Court determined that the tone of the trial was such that the “deck was stacked” against the defendant for the punishment to bo returned if the verdict was to be found adverse to the defendant. The Court did not consider and it specifically stated that the issue of guilt or innocence was not before the court. “The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who would state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt.” Thus, Witherspoon doctrine does not apply to the present case wherein there was no recommendation of capital punishment. The issue of the defendant’s guilt was not disturbed by the Supreme Court in the Witherspoon case and there is no reason to disturb the issue of guilt in the present case. People v. Speck, 41 Ill2d 177, 242 NE2d 208 (1968); People v. Cesarz, 44 Ill2d 180, 255 NE2d 1 (1969).

See also Bumper v. State of North Carolina, 291 US 543, 88 S Ct 1788, where the Supreme Court said:

“Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant’s guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury .... We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily “prosecution prone,” and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis.” (Citations and references to footnotes omitted.)

The defendant further argues that the jury by returning the verdict of guilty thought that they would be allowing the trial judge to impose the death penalty. This contention is without merit as the court advised the jury “in bringing in a verdict, if you find the defendant guilty of murder, you may or may not recommend the death penalty, and if you do not recommend the death penalty, I cannot impose it, but if you do recommend the death penalty I may or may not impose the death penalty.” (Italics ours.)

That the jury did not recommend the death penalty in this case where the evidence of guilt is quite clear and the defendant’s testimony begs credibility gives strong support for the contention that the defendant received a clean “deck” from the jury. Witherspoon v. Illinois, supra.

The defendant’s next assertion is that because the court asked initially from the individual venireman “Do you have any conscientious scruples against the imposition of the death penalty in a proper case ?” and that the court inquired, again individually, of many of the veniremen “Do you feel you could recommend the death penalty here if you felt it was a proper case for it?,” prejudiced the jury on the question of guilt. As stated in People v. Speck, supra, “We must look at the atmosphere of the proceedings.” A review of the record indicates as in Speck that “the tone of the proceedings here indicated a sincere desire on the part of the prosecutor and the court to determine the jurors’ qualifications according to the standard later held acceptable in Wither-spoon.” The court must make inquiries of prospective veniremen and the record does not support the defendant’s contention that the judge’s questions and comments were prejudicial to the defendant under the law as stated in the above cited decisions which are binding on this Court. There is no indication that the questions were asked to hasten impaneling the jury.

Defendant contends he was prejudiced by the argument of the State’s Attorney in which defendant was referred to as “a twice convicted fellow” and a “convicted stickup man.” As we later point out in consideration of defendant’s fourth contention, there was properly before the jury evidence attacking the credibility of defendant consisting of two prior convictions for armed robbery. Defendant complains of, but does not deny that the appellations were correct ones. A prosecutor may denounce the accused’s testimony if he relies on the evidence. People v. Sinclair, 27 Ill2d 505, 190 NE2d 298. In People v. Allen, 73 Ill App2d 256, 219 NE2d 653, the Court held that the statement of a prosecutor that the defendant was, in his opinion, a thief, was not error where the evidence clearly showed that defendant was a thief. Defendant will not be heard to complain of appellations which truly characterize him as shown by the evidence.

The defendant next asserts that the court erred in receiving testimony from Ben Stewart, owner of a liquor store in St. Louis. Ben Stewart had been robbed 5 days before the present robbery and murder, and among other things taken was a .45-calibre pistol. He testified that the gun that the police had found near the scene of this crime was his and that the man that had taken the gun from him was the present defendant. The court permitted Stewart to testify and it was correct in so doing to show where the defendant acquired the weapon; not for the purpose of showing that the defendant may or may not have been involved in a previous armed robbery. People v. April, 97 Ill App2d 1, 239 NE2d 285 (1968). The Court in People v. Ostrand, 35 Ill2d 520, 221 NE2d 499, stated:

“While it is true that proof of the commission of a separate offense unrelated to the crime charged ordinarily should not be received, if such evidence tends to prove the offense charged it may be admitted notwithstanding the disclosure of other crimes involving the defendant (cases cited). Here, the testimony of Posdal was relevant as tending to prove that defendant had acquired from him the same weapon which formed the basis of the charge.”

In the present cause, the testimony was necessary not only to show that the defendant had acquired the weapon but also that the defendant was connected to the gun found near the scene of the crime. Ben Stewart’s testimony was proper.

As his final contention, the defendant urges the court erred in receiving into evidence records of defendant’s prior convictions for armed robbery. The defendant did not answer when asked by the State’s Attorney whether he had been convicted of previous crimes. The admission of the records of prior infamous crimes to show the defendant’s credibility when the defendant has failed to answer is correct. People v. Squires, 27 Ill2d 518, 190 NE2d 361, cert den 375 US 978, 11 L Ed2d 422, 84 S Ct 498.

There is no reversible error and the case is affirmed. We appreciate the diligence and thoroughness of appointed counsel.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: ALLOY, J.

text:
    William Douglas, Plaintiff-Appellee, v. Kraft Food Company, a Corporation, and Hollis E. Wright, Defendants-Appellants.
    Gen. No. 69-49.
    Third District.
    June 25,1970.

      K J. Lannon, Jr., Herbolsheimer & Lannon, of La Salle, for appellants.
    Watts C. Johnson, Johnson, Martin & Russell, of Princeton, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of LaSalle County in the sum of $30,000 in favor of plaintiff William Douglas and against Kraft Food Company, a Corporation, and Hollis E. Wright, an employee of said corporation, individually, as a result of personal injuries sustained in an automobile collision.

Plaintiff William Douglas, who was a music teacher in the Princeton Grade School system, was driving his automobile south on the Princeton-Tiskilwa road, during the noon hour on March 11, 1965. Defendant Hollis E. Wright, a traveling representative of Kraft Food Company was driving north on the same road. Defendant Wright had planned to make a call on a Mr. Espel who lived on the west side of the road. The road made a gentle “S” curve in the area involved and the lane leading to Mr. EspeFs house was at the south end of the curve. To turn into the left lane for access to the Espel home, it was necessary for defendant to make a left turn from his northbound lane.

Defendant said that he was familiar with the road since he had traveled it seven or eight times previously. He testified that he was traveling at 50 to 55 miles per hour and began to slow down about 200 yards from the Espel driveway. He had reached a speed of 10 to 12 miles per hour. He stated that he was looking ahead up the road until the time he was ready to make the turn. Defendant testified that about 15 to 20 feet south of the driveway he prepared to make his turn and at this point he looked up the road and did not see the plaintiff’s automobile. Defendant stated that as his left front tire crossed the center line of the road, he saw plaintiff’s automobile bearing down on him about 200 or BOO feet away. Defendant then determined that rather than go on and complete the turn, it was best to turn back into his own lane, which he attempted to do. The impact with plaintiff’s car occurred in a matter of seconds after he had started to turn back into the right lane. He did not know how fast plaintiff was traveling, and as near as he could recall, plaintiff’s automobile was on the northbound portion of the highway at the time of impact. Defendant detected no sway in plaintiff’s car as it approached him and stated that he thought plaintiff’s car veered to the left when plaintiff braked it. Defendant contended he was in his own lane at the time. The debris left after the accident was in plaintiff’s southbound lane of traffic.

When defendant was shown pictures of the highway, he stated that evidently he had vision down the highway for 1,100 feet north from the Espel driveway. He did not know why he failed to see plaintiff’s automobile in this space. He also testified that following the collision his automobile was facing northeast with the back end of the car slightly over the center line.

Plaintiff testified that he was also familiar-with the road and that about two miles south of Princeton he came upon the “S” curve. He noted defendant’s car approaching him from the south, but that when it was about 150 feet from his automobile, defendant’s car turned into his lane. Plaintiff immediately applied the brakes on his car and he saw defendant’s car then attempt to turn to the right. The collision followed. Plaintiff stated that at the time of impact, his car was in his right southbound lane and most of defendant’s car was also in this southbound lane. Following the collision, the left front portion of plaintiff’s car came to rest slightly over the center line and his automobile was at an angle facing southeast. Plaintiff testified that defendant’s automobile was in the southbound lane when he first applied his brakes and though there was a short period of time until the time of the collision, plaintiff was sure that his car never left his own southbound lane of traffic.

The sheriff of Bureau County, Mr. Levisay, who investigated the accident testified as to what he saw at the accident scene. He found both automobiles about six to eight feet apart in front of the Espel driveway. Plaintiff’s automobile was facing southeast, with the left front about a foot to a foot and a half over the center line. Defendant’s car was about one to one and a half feet over the center line. He stated that the debris was all on the plaintiff’s side of the road, although there could have been some pieces of chrome or glass over on the opposite lane. There were skid marks about 30 feet long leading to the rear of plaintiff’s car and the skid marks were in the right lane going south (which would be plaintiff’s proper lane). His examination disclosed that defendant’s car was damaged over the left front wheel, while the impact to plaintiff’s car was in the center of the front bumper.

Mr. Lyter, an investigator for defendant, testified as to a conversation he had with the sheriff in which he contended that the sheriff had made certain markings on a diagram of the accident scene drawn on the back of an envelope which was produced at the trial. Mr. Lyter stated that Mr. Levisay indicated in the diagram that the skid marks veered into the left or northbound lane of traffic. The conversation referred to took place several months after the accident, as Mr. Levisay was serving as treasurer of Bureau County at the time of such conversation. In response to such testimony, Mr. Levisay stated that he did not remember talking to Mr. Lyter about the accident but stated that he had filed a report of the accident with a diagram and would not have made another diagram.

A civil engineer, who made a topographical survey of the highway where the accident occurred, testified that at a point 300 feet south of the point of impact of the automobiles, an automobile approaching from the south would have a field of vision of 1,350 feet up the road ahead.

As a result of the accident, plaintiff had an injury to his right knee which bothers him only when he marches. There were lacerations and contusions of the chin, an acute cervical strain, fractured or chipped teeth, and acute contusions of the skull and knee cap. Plaintiff was in the hospital overnight and he was in bed at home several days. He was required to eat eggnog and baby food for four to six weeks prior to the time when his teeth were fixed. Plaintiff taught the week following the accident as he was preparing students for the spring music contest which was the high point of the year for the music students. Plaintiff made no claim for lost time from school as a result of the accident. The main concern of plaintiff was an injury to his neck which still bothers him if he puts it in an unusual position or engages in any vigorous activity. Plaintiff is able to teach but has not been able to do private teaching since the accident. The private teaching grossed plaintiff around $250 a year in the years 1963, 1965, and 1966, and over $600 in 1964. Plaintiff’s leisure activities, such as golf and swimming, were also curtailed after the accident. The treating physician for plaintiff saw him twelve times in 1966, together with some additional visits when they met at the hospital. Plaintiff was also treated by the same physician twelve times in 1967. Plaintiff wore a traction device with a pulley and weights in bed at night for three to four months and also wore a neck brace. The treating physician testified that plaintiff should have at least five physiotherapy treatments a month (at a cost of $30 per month) plus a monthly examination (at the cost of $5 per month), and medication (at a cost of $20 per month). All of this treatment the physician testified should continue for from three to ten years. Another examining physician testified as to the injuries and stated that they were permanent and that surgery might be a possible cure.

On appeal in this Court, defendant contends that certain questions and conduct of counsel and the court were erroneous and prejudicial, resulting in a grossly excessive verdict, and that the court erred in giving certain instructions over objection of defendant.

In connection with the contentions of defendant, defendant emphasizes the principle that where a question of liability is close and vigorously contested, conduct of counsel and the rulings of the trial court should be closely scrutinized (La Salle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188, 208 NE2d 845; Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 400, 209 NE2d 868). It is well to examine the facts in the instant case for the purpose of ascertaining whether the record discloses a truly close question with respect to liability as contended by defendants.

It is apparent from the reading of the abstract of testimony and the record that the cause of the accident was, as the jury apparently concluded, defendant’s failure to observe plaintiff’s automobile coming toward him from the north when defendant began his left turn into the lane in which plaintiff was traveling at the time. The testimony by plaintiff disclosed that he applied his brakes when he saw defendant pull into the southbound lane of traffic to make the left turn. The evidence supports plaintiff’s theory that his automobile remained in the proper lane and struck defendant’s automobile in such lane. The testimony of the sheriff who investigated the accident with respect to the skid marks behind plaintiff’s car indicated that such marks were all in plaintiff’s lane of traffic. Most of the debris from the accident was in plaintiff’s lane of traffic. The physical location of the automobiles following the accident was consistent with the theory that the accident happened in plaintiff’s lane of traffic. So far as the record is concerned, there is no substantial evidence of any fault on the part of plaintiff. He was traveling at a reasonable rate of speed for the road and traffic conditions. While there was some contradiction of the testimony of the sheriff, it cannot be stated that the record in this case indicates a situation where the evidence creates or poses a truly close question of liability.

With these observations in view, we should examine the comment made by attorney for plaintiff by which defendant contends plaintiff’s counsel implied that something significant was being withheld from the jury. Plaintiff’s attorney was questioning his witness, Dr. Giffin. Dr. Giffin was asked about a report concerning the examination of plaintiff at the Carle Clinic in Champaign, Illinois. Defendant objected to such testimony as hearsay. When such objection was sustained, counsel for plaintiff made a statement before the jury to the effect, “All right, if you don’t want it.” Even though the record is sparse in regard to certain important points relied, upon by defendant, we have concluded that the record is sufficient to show defendant’s objections. We do not, however, believe that the comment would constitute reversible error.

In Jacobson v. National Dairy Products Corp., 32 111 App2d 37, 176 NE2d 551, relied upon by defendant, an attorney had persisted in trying to get to the jury that the opposing attorney was trying to keep relevant evidence from the jury. Counsel had been plainly instructed not to go into certain proceedings, but he insisted on keeping this prohibition before the jury to accomplish, by inference, what he could not do directly. The simple comment made by plaintiff’s attorney in the cause before us was not enough to make it clear to the jury that plaintiff’s attorney had important information which he was prevented from giving to them as was true in the Jacobson case. While this Court would reverse in a clear case, because of improper conduct of counsel, we do not believe that this situation exists in the present case, nor did this involve a ease where the attorney attempted to introduce knowingly inadmissible evidence (Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 57 NE2d 216; Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 209 NE2d 868). The evidence referred to might have been proper (Smith v. Broscheid, 46 Ill App2d 117, 196 NE2d 380). We also have noted, from the record, that defendant cross-examined the witness Dr. Giffin with respect to the Carle Clinic report. We, therefore, find no reversible error in the statement with respect to the Carle Clinic report by attorney for plaintiff.

The next issue raised was whether the examination of the jury by plaintiff’s attorney on voir dire examination would justify reversal. During the voir dire examination of the jury, plaintiff’s attorney asked prospective jurors if they would hold it against the Kraft Food Company because Mr. Wright was an employee of the company. Defendant contends that the result of such questioning was to advise each juror that Kraft Food Company was a big company with sufficient funds to pay a sizable verdict. While the voir dire examination was not in the record, and the propriety of such examination in absence of a record thereof could normally not be questioned on appeal, we conclude that, basically, the comment was not necessarily prejudicial. Kraft Food Company was a defendant in the case, and undoubtedly the jury knew that Kraft Food Company was a large corporation. We find no reversible error in the voir dire examination referred to.

Defendant has also contended that the jury was prejudiced when plaintiff’s attorney asked the defendant, “Have you appeared in any other accidents?” Defendant contends that the record is in error and that actually the question was whether defendant had been “involved” in other accidents. Plaintiff contends that the question was asked of defendant because defendant had stated that the sheriff did not question him about the accident when, in fact, the sheriff had testified as to a lengthy conversation with defendant. Plaintiff argues that he was trying to show that defendant was familiar with the routine questioning surrounding an accident and that was why he asked defendant if he had “appeared in other accidents” (the implication being that defendant was not necessarily one of the parties to the accidents). We note from the record that defendant’s attorney did not object to the question. In absence of any such objection, the trial court had no chance to rule upon the question, and defendant could not assert such error on appeal except in unusual situations (Muscarello v. Peterson, 20 Ill2d 548, 170 NE2d 564; Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249). This was obviously not the situation in the case before us, and in absence of an objection we do not believe it is appropriate to consider this question on appeal for the purpose of possible reversal.

A further error is assigned as a result of the giving of Instruction No. 14 by plaintiff. This Instruction stated:

“The Plaintiff claims he was injured and sustained damages while exercising ordinary care and that the Defendants were negligent in one or more of the following respects:
“Failed to drive said vehicle to the right when proceeding in the opposite direction of the Plaintiff contrary to law;
“Failed to keep a proper lookout for vehicles ahead of him;
“Failed to give the Plaintiff at least one-half of the main traveled portion of the roadway, contrary to law;
“Turned said vehicle from a direct course upon the highway when such movement could not be made with reasonable safety contrary to law;
“Turned left into a private road without yielding the right of way, contrary to law.
“The Plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries. “The Defendants deny that they were negligent in doing any of the things claimed by the Plaintiff, deny that any claimed act or omission on the part of the Defendants was a proximate cause of the claimed injuries, and deny that the Plaintiff was in the exercise of ordinary care.
“The Defendants further deny that Plaintiff was injured or sustained damages.”

This form of instruction was IPI No. 20.01 and was given over defendant’s objection. The basic objection of defendant is that the instruction is repetitious. In the IPI Volume (Illinois Pattern instructions Civil § 20.01), it is suggested that an instruction summarizing allegations of the complaint and denials by a defendant should meet the standards of Signa v. Alluri, 351 Ill App 11, 113 NE 2d 475. In the Signa case, the court examined a lengthy and detailed instruction which purported to summarize the allegations of the complaint. The court reviewed the history of instructions dealing with the allegations of a complaint and noted that in Illinois it is not proper to send the complaint to the jury room nor is it permissible to embody the pleadings in an instruction and, in effect, accomplish the same thing. In that case, the court pointed out (at page 20) that this should be accomplished by a summary of the pleadings, succinctly stated without repetition and without undue emphasis. Although the plaintiff’s Instruction No. 14 in the instant case was much shorter than the 800-word instruction in the Signa v. Alluri case, the repetition which was criticized in the Signa ease was present. We do not believe, however, that we would be justified in reversing in the cause before us, on the basis of the giving of such instruction. We do feel it is timely to renew the warning which was given in the Signa v. Alluri case, that an instruction of the character involved in the cause before us could be so prejudicial in a close case as to require a reversal. Repetition should be avoided and undue emphasis should likewise be avoided in such instructions. We do not believe, however, that we would be justified in reversing in this cause in view of the record (Sphatt v. Tulley, 88 Ill App2d 229, 186 NE2d 670).

Defendant also contends that it was error to give plaintiff’s Instruction No. 15, which provided in part that the jury could consider “The value of earnings lost and the present cash value of the earnings reasonably certain to be lost in the future.” There was testimony by plaintiff that he gave private music lessons before the accident but was not able to do so after the accident. As we have indicated in the statement of facts, gross receipts from music lessons ranged from $250 to $600 a year. The instruction, therefore, was proper since there was evidence upon which to base the instruction, even though the evidence did not disclose a substantial amount earned in this fashion (Chicago & W. I. R. Co. v. Bingenheimer, 116 Ill 226, 4 NE 840).

Defendant also contends that the verdict is so excessive as to require a new trial. While the medical expense was relatively small in this cause ($1,253.43), and the loss of time from work was minimal, the record shows a substantial amount of possible medical expense which could run as much as $60 a month for up to 10 years according to one witness. There was also evidence as to the loss of future earnings and the fact that plaintiff’s recreational activities were somewhat curtailed. There was evidence of pain and suffering, loss of weight, and other factors. We would, therefore, not be justified in setting aside such verdict as excessive (Lau v. West Towns Bus Co., 16 Ill2d 442,158 NE2d 63).

It is also contended that while no single alleged error asserted by defendant is sufficient to require a reversal, the combination of such errors requires reversal in this Court. Our fundamental inquiry must be directed to a determination as to whether there was a possibility of prejudice resulting therefrom which was so great as to entitle defendant to a new trial. In the cause before us, on the basis of the jury determination, it could be concluded, reasonably, that liability was clearly established and that the finding of the jury was not against the manifest weight of the evidence. The remarks of plaintiff’s attorney in his questioning of defendant were not what would be classified as flagrant violations of accepted courtroom conduct. While plaintiff’s Instruction No. 14 is objectionable, in view of the record in this cause, even coupled with other alleged errors there would not be an appropriate basis for reversal. Also, the verdict, although substantial, was not shown to be the result of passion or prejudice.

The judgment of the Circuit Court of LaSalle County will, therefore, be affirmed.

Affirmed.

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


author: JUSTICE THOMAS J. MORAN

text:
    Ethel A. Goodman, Plaintiff-Appellee, v. Ronald Goodman, Defendant-Appellant.
    Gen. No. 69-141.
    Second District.
    June 25,1970.
    Rehearing denied July 30,1970.

      Gale L. Marcus, of Chicago, for appellant.
    Synek, Bishart & Solomon, of Chicago, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

In late 1965, plaintiff and defendant entered into a property settlement agreement. Both parties were represented by counsel of their choice and in the agreement they acknowledged that each had fully informed the other of the nature and extent of their individual assets. On December 2, 1965, a hearing was held and a decree of divorce entered in plaintiff’s favor. Both parties appeared in court and were represented by their attorneys. The divorce decree adopted the property settlement agreement and found it to be both fair and equitable.

In June, 1966, plaintiff filed her first petition for rule to show cause upon the defendant for failure to make child support payments under the decree and agreement. The defendant countered with a petition for reduction of child support. After hearing evidence the trial court denied defendant’s petition for reduction and found the defendant guilty of willful contempt.

In June of 1967, litigation recommenced with the defendant’s second petition for reduction and the plaintiff’s second petition for rule to show cause. The trial court held a number of hearings and it appears fair to state from the record that it reached the following conclusions: First, that the defendant was in arrears in excess of $15,000 under the divorce decree; second, that while the defendant had received medical treatment for alleged emotional problems, no such treatment had been received after 1965; third, under the divorce decree and property settlement agreement, the defendant received, accepted and got the benefit of all of the stock in a certain public relations firm which he solely owned; fourth, that through the public relations business, operated by the defendant, almost $150,000 was received in a period from January, 1966, through April, 1968; fifth, that defendant commingled all of these monies “as a tactical maneuver to avoid creditors,” this rather surprising admission coming from the defendant.

Finally, in July, 1968, the court found the defendant once again guilty of willful contempt and directed him to surrender his person on July 23, 1968. On the same day, the defendant filed a petition for leave to vacate the divorce decree entered in 1965. This petition alleged for the first time that the defendant was not mentally competent to enter into the property settlement agreement and that a guardian ad litem should have been appointed for him.

Defendant was given additional time to cure the arrearage, but that was never done. Finally, on May 2, 1969, the trial court issued a mittimus and dismissed all the defendant’s pending petitions.

This appeal raises the following issues which we will discuss in turn: 1) that the trial court erred in dismissing defendant’s petition to vacate the divorce decree brought under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72); 2) that the trial court erred in finding the defendant in contempt and sentencing him to jail; 3) that the trial court erroneously excluded certain evidence; and 4) that the defendant’s constitutional rights have been violated because he has, in effect, been jailed for failure to pay a debt.

1) It is to be remembered that, throughout these proceedings, the defendant was represented by an attorney of his choice. He was never declared legally incompetent and has not been so declared to this day. Defendant’s petition under section 72 was properly considered by the trial court, not only in light of the allegations of the petition, but also from an examination of the entire record, McDonald v. Neale, 35 Ill App2d 140, 182 NE2d 366 (1962) — US cert den, 372 US 911. The petition contained only allegations which were in the original pleadings. It alleged some prior treatment for mental disturbance, but it did not allege that any treatment occurred in 1965 when the agreement was reached and the divorce decree entered, or at any time subsequent thereto. The petition itself was brought under subsection 3 of section 72 which provides:

“The petition must be filed not later than 2 years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.”

The petition was filed more than two years after the entry of the decree and there was no allegation that defendant was under any legal disability, duress or that any ground for relief was fraudulently concealed. Therefore, on the face of the petition itself, the trial court did not err.

It is clear that the defendant has accepted all of the benefits of the divorce decree. As a result of that decree he obtained sole and complete ownership of his business. Having accepted the benefits, he should not be permitted to attack the decree and we conclude that his petition is barred by estoppel, Henley v. Houck, 49 Ill App2d 472, 200 NE2d 69 (1964); app den 30 Ill2d 626.

On the question of defendant’s competence, it appears clear that the trial court ruled correctly. There was no allegation from which that conclusion could be drawn other than the defendant’s bald statement. The defendant was not legally incompetent and, of course, a mere allegation of incompetence would throw every divorce decree into jeopardy, were it successful. In this connection, the defendant draws our attention to the case of Merneigh v. Merneigh, 2 Ill App2d 352, 119 NE2d 492. There, the defendant had been declared to be an incompetent person, and even in that case, the court held that proceedings could be had if a guardian ad litem was appointed and the grounds for divorce occurred prior to insanity. This case is entirely different because there has been no such declaration, either then or now.

2) Next, the defendant claims that the court erred in finding him guilty of willful contempt. The defendant appeared time and again. He did everything possible to avoid the court’s orders. He failed to bring in records when asked to do so. He failed to reveal the sources and nature of his income. During a period of twenty-eight months, his various business ventures grossed almost $150,000. According to his own admission, he commingled his accounts so as to avoid his creditors. The trial court’s patience was truly enduring. The ultimate decision to jail the defendant was fully in accordance with the evidence before the court.

3) The defendant next alleges that the trial court erred in refusing to admit certain evidence which the defendant refers to as defendant’s Exhibit No. 5. We find, however, that the same exhibit was admitted as defendant’s Exhibit No. 16. Therefore, no error occurred.

4) Finally, the defendant alleges that his constitutional rights were denied because he is being jailed for failure to pay a debt.

In the case of LaRue v. LaRue, 341 Ill App 411, 93 NE2d 823 (1950), the court said, at pages 414-415:

“A decree for alimony is not an ordinary money decree and is not regarded as a debt owing from a husband to his wife but rests on the natural and legal duty of the husband to support his wife . . . and the commitment of a defendant for contempt for refusing to pay alimony is not an imprisonment for debt from which he can claim exemption under the provisions of the Constitution prohibiting imprisonment for debt.”

In this case, the defendant has the obligation to support his wife and family. That obligation was reinforced by the decree of divorce and by the property settlement agreement. The defendant was sentenced to jail, as he should have been, because he willfully and repeatedly refused to obey the court’s orders.

We find no error in this record and the judgment is therefore affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Loyd, Defendant-Appellant.
    Gen. No. 69-151.
    Second District.
    June 25,1970.

      John T. Beynon, Public Defender, of Rockford, and John F. McNamara, Assistant Public Defender, for appellant.

      Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and John C„ Tower, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The narrow issue in this case is whether the trial court erred in imposing upon the defendant a sentence of not less than 5 nor more than 15 years in the penitentiary. His codefendant, who was subsequently sentenced by another judge of the same circuit, received a term of not less than five nor more than 10 years.

On August 5, 1968, at about 11:00 p. m., John Sarantou, the operator of the It Liquor Store in Rockford, and his employee, John Dixon, were walking to the parking lot after closing the store. Two men — later identified as Robert Loyd, the defendant, and Larry Hall, the codefendant — forced them, at gunpoint, to go back into the store. The defendant had a knife and Hall had a gun. They took the wallets of Sarantou and Dixon, and held Sarantou at gunpoint while Dixon tried unsuccessfully to open the safe. The defendant pulled Sarantou’s shirt up from the bottom and threatened him with a knife, which Sarantou described as a cleaver.

At this juncture, the lookouts, in connection with the robbery, gave a warning whistle; Hall wanted to leave, but the defendant wished to stay to get the “big money.” Sarantou and Dixon were told by the defendant and co-defendant that “Now is the last minute of your life.” The lookouts whistled again, and Hall and the defendant fled. As they were running away, Hall fell and hurt his foot, and the defendant carried him to within one block of Hall’s house where the police captured Hall, but the defendant escaped. He was apprehended on February 5, 1969, was arrested, and charged with armed robbery and robbery of the It Liquor Store.

The defendant, who was represented by the Public Defender, waived his right to prosecution by indictment, and an information, consisting of two counts, was filed • against him. He entered a plea of not guilty to the charges of armed robbery and robbery. Thereafter, he withdrew his plea of not guilty to the armed robbery charge and entered a plea of guilty. Judgment was entered on the plea, and on motion of the State’s Attorney, the charge of robbery against the defendant was nolle prossed. The record reflects proper admonitions to the defendant with reference to waiver of the right to be indicted, of the right to a jury trial, and with reference to the plea of guilty.

The defendant filed a petition for probation. The probation report and hearing indicated that he was born and reared in Chicago, and had seven brothers and one sister. He was a high school dropout, and the father of an illegitimate child. He had never been married and had never been in the military service. He had a record of at least eight previous arrests on charges of resisting arrest, auto theft and criminal trespass; and during 1967 and 1968, he had served eight and one-half months in the House of Correction in Chicago for auto theft. At the probation hearing, the defendant and one witness testified on his behalf, and Sarantou testified on behalf of the People. The court denied the petition for probation.

The evidence offered at the probation hearing was allowed to stand in lieu of a separate hearing in Aggravation and Mitigation. The trial court, before passing sentence, discussed the fact that the lives of Sarantou and Dixon had been threatened with a deadly weapon, and then sentenced the defendant to the penitentiary for not less than five nor more than fifteen years.

The defendant contends that the sentence is too severe and should be reduced. He urges that there was no reason why a more severe sentence should have been imposed upon him than upon Hall, who received not less than five nor more than ten years for the same offense. We disagree with this contention!

One of the general purposes of the Criminal Code is to “Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.” (Ill Rev Stats 1969, c 38, par 1-2 (c).) This purpose affords the court a range of discretion in sentencing which permits a recognition of the rehabilitative possibilities of the individual offender. The law does not necessarily contemplate that the same penalty will be inflicted upon all persons who are guilty of the same offense; and different sentences for persons who are guilty of the same offense may not constitute disparate treatment of the offenders.

In considering this subject, we stated in People v. Buell, 120 Ill App2d 367, 256 NE2d 845, at page 847:

“In imposing a sentence, the trial court has an obligation to the public as well as to the person found guilty of a crime. In addition, the sentence is significant to the institutional officials in their program of rehabilitation in connection with the incarceration of the convicted person. Thus, in sentencing, the court must consider the punishment warranted under the circumstances of the particular case, the protection of the public, and the potential for rehabilitation of the party being sentenced. The circumstances of the case include the nature of the offense, the attending circumstances, the character and propensities of the offender, his family, work record, past delinquencies, his potential for rehabilitation, and all other pertinent matters.”

The defendant’s character and propensities, his family background and work record, his past delinquencies, and the nature of his present offense and its attending circumstances, including his subsequent flight, were not indicative of a good rehabilitation potential. The record does not indicate any pertinent facts in connection with Hall’s potential for rehabilitation; consequently, we have no basis for determining whether Hall or the defendant stood in a favored position in this respect. However, the record does indicate that the defendant threatened Sarantou’s life with a cleaver; that when the lookout gave a warning whistle, the defendant wanted to stay in the liquor store to get the “big money”; and that upon leaving the liquor store, Hall was captured, the defendant escaped and was not apprehended for approximately six months. Thus, the evidence would support the view of the trial judges: that the defendant and codefendant were not equal participants in this armed robbery; and that the greater sentence imposed upon the defendant by the trial judge did not constitute an abuse of his discretion.

When a sentence is imposed within the limits prescribed by statute, an appellate court will not disturb that sentence unless it clearly appears that the penalty imposed constitutes a great departure from the fundamental law and its spirit and purpose, or that it is manifestly in excess of the proscription of section 11 of Article II of the Illinois Constitution requiring that all penalties be proportioned to the nature of the offense. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673 (1965) ; People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958); People v. Juve, 106 Ill App2d 421, 428, 245 NE2d 293 (1969). Also see: People v. Scott, 117 Ill App2d 344, 253 NE2d 553 (1970). The imposition of sentence is peculiarly within the discretion of the trial court and this discretion should not be interfered with unless it is clearly abused. People v. Nordstrom, 73 Ill App2d 168, 183, 219 NE2d 151 (1966). We find no abuse of discretion by the trial court in this respect.

The power in reviewing courts to reduce sentences should be exercised with considerable caution. People v. Taylor, supra, 424. Sentences that have been imposed in other armed robbery cases, which involve different circumstances and other defendants who may possess a greater rehabilitation potential, can be no more than a faint guide to the possible sentence to be imposed herein; and the sentence imposed against defendants who are guilty of the same offense must likewise be based on the varying degrees of criminality perpetrated by each respective defendant, the protection to which the public is entitled, the circumstances of the particular case, the moral character and propensities of each defendant, their respective family backgrounds and work records, the rehabilitation potential of each defendant, and all other pertinent circumstances. All of these factors should be considered by the court in imposing sentence.

Under the circumstances of this case, we find no evidence which would warrant us to reduce the sentence imposed by the trial court. Accordingly, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: MR. JUSTICE SEIDENFELD MORAN, J., ABRAHAMSON, J.,

text:
    Ashok Railkar, Plaintiff-Appellant, v. Janice Boll, Defendant-Appellee. Philip E. Howard, Petitioner-Appellant, v. P. F. Collier, Inc., and Hartford Accident and Indemnity Co., and Country Mutual Insurance Co., Interveners-Respondents-Appellees.
    Gen. No. 69-193.
    Second District.
    June 25,1970.
    Rehearing denied and opinion modified July 17, 1970.

      ABRAHAMSON, J., dissenting.

      Philip E. Howard and William J. Harte, of Chicago, for appellant.
    Peregrine, Stime and Henninger, of Wheaton, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

MODIFIED OPINION ON DENIAL OF PETITION FOR REHEARING

Ashok Railkar filed suit for personal injuries against Janice Boll and recovered a trial judgment in the amount of $5,000. P. F. Collier, Inc., as Railkar’s employer, and Hartford Accident and Indemnity Co., as the workmen’s compensation carrier, were given leave to intervene to protect the lien of workmen’s compensation paid to Railkar in the amount of $9,800.

Petitioner, Philip E. Howard, an attorney, had represented Railkar in the injury suit. He also represented Railkar in a prosecution of an appeal of that suit on the issue of damages only. The judgment was affirmed in Railkar v. Boll, 109 Ill App2d 277, 248 NE2d 521 (1969).

Thereafter, a petition for adjudication of liens was filed by the plaintiff, reciting that the $5,000 judgment had been increased by $375 in accumulated interest; that plaintiff’s attorney has a contract providing for 50% of any amount owing; and that expenses had been incurred in the amount of $2,137.89. The petitioner further recited that plaintiff’s attorney had been served with liens as follows: Interveners $9,800; and hospital and doctors’ expenses totaling $3,730.97.

Interveners answered, denying any attorney fee contract beyond that specified by section 5 of the Workmen’s Compensation Act (Ill Rev Stats 1967, c 48, § 138.5), which provides for “payment to the attorney of 25% of the gross amount reimbursed”; and alleged the superiority of the workmen’s compensation lien to any other lien.

The trial court disbursed the $5,375 personal injury judgment as follows: $2,137.89 to plaintiff’s counsel for expenses of litigation; $806.27 to plaintiff’s counsel based upon 25% of the judgment as reduced by the litigation expenses ; and $2,430.84 to interveners, as the balance.

It is from this order that the appeal is taken.

Howard argues that he is entitled to 50% of the gross personal injury judgment, basing his claim on his contingent fee contract with Railkar and upon the provisions of the Attorney’s Lien Act (Ill Rev Stats 1967, c 13, § 14). Alternatively, he claims that, if we determine that he is limited to the 25 % statutory fee provided in the Workmen’s Compensation Act (§ 138.5(b)), the percentage must be applied to the gross amount of the personal injury judgment.

Interveners counter that the only authority requiring payment by employer of an employee’s attorney’s fees in actions by an employee against a third person is found in the Workmen’s Compensation Act and is limited to 25% of the amount reimbursed to the employer. They argue that the other expenses of the litigation do not comprise reimbursement to the employer.

We agree with interveners’ contention that the provisions of the Workmen’s Compensation Act for a 25 % fee provide the only basis for recovery of plaintiff’s attorney’s fees as against the employer. There was no contractual relationship between the employee Railkar or his attorney Howard and the interveners. The inclusion of the provision of payment by the employer of a prorata share of costs, together with attorney’s fees in section 5 of the Workmen’s Compensation Act as amended in 1957, constitutes the only basis of the employer’s liability to share the employee’s burden of expenditures for recovery against a third party. Hardwick v. Munsterman, 15 Ill2d 564, 567, 155 NE2d 638 (1959). Prior to that amendment, the employer was entitled to complete reimbursement of the fund recovered from such third party without any statutory or common-law requirement to bear any part of the employee’s costs or fees incurred in a proceeding in which the employer was not a party. Manion v. Chicago, R. I. & P. R. Co., 2 Ill App2d 191,119 NE2d 498 (1954).

The validity of the amendment to section 5 of the Workmen’s Compensation Act was upheld in Reno v. Maryland Cas. Co., 27 Ill2d 245, 248, 249, 188 NE2d 657 (1962). There, the Supreme Court noted that the purpose of the subrogation section as originally enacted was to prevent the employee from obtaining unjust enrichment in the nature of a double recovery for the same injury; and that the purpose of the provision requiring the employer to pay a proportionate share of the expenses of securing a fund out of which the employer could be subrogated, was to prevent the employer from being unjustly enriched.

No authority, other than the statute, has been furnished by either side on the question of whether the plaintiff’s attorney’s fees apply to the entire recovery in a personal injury action or only to the amount which the interveners actually receive after the deduction of the litigation expenses. Nor are we aided by any reference to the purpose of the amendment to section 5. The unjust enrichment concept upon which the statutory provision is based is of no aid in deciding a case in which the subrogation fund is substantially less than the employer’s lien.

The language used in the statute affords the only basis for interpretation. Ill Rev Stats, c 48, § 138.5 (b), provides in part:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of this Act.
“Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.”

The first paragraph of section 138.5 (b) establishes the subrogation fund by reference to the amount received by the employee from the judgment or settlement in the action against the negligent third party, and directs that the employer shall be paid from that amount the compensation paid to the employee.

The following paragraph directs that “out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim . . . .” In reasonable context the term any reimbursement must include the full amount of the subrogation fund out of which the employer’s lien is to be paid, limited by the extent of such lien when the fund is in excess of the lien. The court below properly deducted the litigation expenses from the $5,375 recovery on this basis. Since the recovery was less than the employer’s lien, the entire amount of the costs and necessary expenses required to create the subrogation fund was properly borne by the employer and there was no proration involved.

The remaining portion of the sentence in the second paragraph which is in issue here, provides for the payment of attorney’s fees to the employee’s attorney when, as here, his services have created the subrogation fund which is described as “the proceeds out of which the employer is reimbursed.” (Emphasis added.)

The further language that the employer, in the absence of other agreement, “shall pay such attorney 25 % of the gross amount of such reimbursement,” in the necessary context, must be said to refer to the entire subrogation fund as this makes up the proceeds out of which he receives reimbursement as referred to in the preceding part of the paragraph.

We cannot agree, within reason, that “reimbursement” as used in the first part of the sentence, means the proceeds of the judgment or settlement in a third-party action, and in the following part of the same sentence that “reimbursement” means the net amount which the employer recovers, particularly when the legislature has used the descriptive term, “gross.” The same words appearing in different parts of the statute will be given a consistent meaning where legislative intention is not clearly expressed to the contrary. See Moran v. Katsinas, 16 Ill2d 169,174,157 NE2d 38 (1959).

Therefore, that portion of the trial court’s order of distribution which applies the 25% attorney’s fees only to the net amount of $3,237.11 of the third-party judgment, after deduction of litigation expenses, is reversed. The remaining portion of the judgment order is affirmed.

We remand the cause with directions to assess the attorney’s fees on the basis of 25 % of $5,375.

Affirmed in part and reversed in part and remanded with directions.

MORAN, J.,

concurs.

ABRAHAMSON, J.,

dissenting:

I concur with the finding of the trial court that the attorney’s fees due to Philip E. Howard be in the amount of $806.27, being 25% of the judgment plus interest, less reimbursement expenses paid to Philip E. Howard in the amount of $2,137.89.


author: PER CURIAM.

text:
    Donald G. Fender, Plaintiff-Appellant, v. St. Louis Southwestern Railway Company, Defendant-Appellee.
    Gen. No. 69-43.
    Fifth District.
    June 26,1970.

      Carr, Raffaelle & Cook, of East St. Louis (Rex Carr, of counsel), for appellant.
    Walker & Williams, of East St. Louis (Ralph D. Walker and Edward G. Maag, of counsel), for appellee.
   PER CURIAM.

Plaintiff appeals from the judgment of the Circuit Court of St. Clair County dismissing his cause of action and assessing costs against him entered upon allowance of defendant’s “Motion to Decline Jurisdiction” under the doctrine of forum non conveniens.

Plaintiff’s complaint pleads a cause of action under the Federal Employer’s Liability Act (45 USCA, § 51 et seq.) arising out of an occurrence in the Dallas, Texas Yards of the Southern Pacific Railroad.

In its motion to decline jurisdiction defendant states that plaintiff is a resident of Dallas, 870 miles from Belleville, and at the time of the alleged occurrence had been in defendant’s employ for approximately 10 days; defendant is a Missouri corporation with its principal place of business in Tyler, Texas, and is amenable to service and has property subject to execution in Texas; in order to try the case in St. Clair County defendant would require the testimony of both employee and non-employee witnesses, nearly all of whom reside in the vicinity of Dallas; it could not compel the attendance of witnesses by subpoena, would be required to take evidentiary depositions and expend substantial sums for the expenses of travel and maintenance; defendant would be placed at a disadvantage and would incur great expense in that witnesses would be required to be in attendance at the trial whose presence might become unnecessary, and that this could not be determined until plaintiff had introduced evidence in support of his case; testimony by evidentiary deposition is not as satisfactory and convincing to a jury as testimony “in person” of the witnesses; defendant would incur additional expense of $1,000 to $2,000; defendant’s attorneys would be required to make several trips to Dallas for the purpose of inspecting the site of the occurrence and taking depositions ; plaintiff’s physical condition is in issue, he has had a series of lawsuits and 10 to 14 doctors have treated him and testified concerning his condition in previous litigation; upon information and belief defendant states that plaintiff’s reason for filing his suit in “this remote jurisdiction” is to put defendant to a disadvantage in proving plaintiff’s prior claimed accidents and the alleged injuries arising therefrom; that a further defense will be that plaintiff is not entitled to the benefits of the F.E.L.A. for the reason that he made material misrepresentations of fact in his application for employment, and various persons would be necessary witnesses in support of this defense; the testimony of a number of doctors, eight of whom are listed by name will be necessary to defendant’s defense. Paragraph 12 of the motion states:

“12. The accessibility of the courts of St. Clair County has become widely known and local litigants and litigants who live in or near the area of this forum, have filed many suits in this Court requiring almost continuous attendance by the judges of this Court in an effort to dispose of the litigation. In many cases the courts of this county afford the only forum where local residents may try their suits and foreign, imported litigation such as this, tends to discommode the citizens and residents of Illinois who have no other choice of forum. The time of the Court and jury which could be devoted to local cases will be appropriated by the plaintiff in this suit with no corresponding benefit to the taxpayers of this county. The plaintiff has other appropriate courts available to him elsewhere in close proximity to the place where this cause of action arose, which are convenient for him, the witnesses and the defendant, and where witnesses can be subpoenaed.”

The motion is verified, upon information and belief by one of defendant’s attorneys of record.

Plaintiff filed verified “Objections to Motion to Decline Jurisdiction” in which he states defendant has hundreds of miles of track in Illinois and maintains yards, offices and other facilities in St. Clair County; there are only two witnesses to the occurrence out of which the action arises, plaintiff and his foreman; that a myelogram and laminectomy were performed on plaintiff in St. Clair County by physicians resident there; various doctors, nurses and pathologists are necessary to prove his case, all of whom reside in Illinois; his attorney is licensed in Illinois, not in Texas, and resides in St. Clair County; if defendant is caused unreasonable and unnecessary expenses he is ready to deposit any sums necessary to defray such expense; matters in defendant’s motion referring to his background are scurrilous and untrue; the Circuit Court of St. Clair County does not have a large backlog of cases and the filing of this case “will in no way discommode the citizens and residents of this County.”

Defendant filed the affidavit of the attorney, who verified its motion in which he states that the surgeon who operated on plaintiff is dead; plaintiff has had several lawyers in Texas to prosecute damage suits; he presently has a Texas lawyer who is presently prosecuting a case in Texas seeking to recover Workmen’s Compensation for an injury suffered while plaintiff was employed by Rotex Manufacturing Co. in Dallas County.

Plaintiff contends defendant’s motion “failed to state facts sufficient to give the court latitude in which to exercise its discretionary power,” and the court, in declining jurisdiction, abused its discretion. Defendant argues the trial court properly declined jurisdiction, its action was discretionary, and is subject to reversal only if there is shown to be an abuse of discretion.

In Whitney v. Madden, 400 Ill 185, 79 NE2d 593, the Supreme Court affirmed the dismissal of a case under the doctrine of forum non conveniens and after discussing certain limitations previously applied to free access to the courts of Illinois, said at page 189: “Many jurisdictions have added the limitation that if it is apparent that an appropriate forum is available and the relief is sought in the local courts by a nonresident against a nonresident for a transaction which occurred outside the territorial boundaries of the State, for the purpose of frustrating the defendant, or if the bringing of the action unduly burdens the defendant or cause him great and unnecessary inconvenience, or unnecessarily burdens the court, the trial court may, in its discretion, decline the jurisdiction of the case, even though it may have proper jurisdiction over all parties and the subject matter involved. This is the doctrine of forum non conveniens. The Federal courts have recognized the application of this doctrine and have found it not repugnant to section 2 of article IV, and section I of the Fourteenth Amendment of the Constitution of the United States.”

In Cotton v. Louisville & N. R. Co., 14 Ill2d 144, 152 NE2d 385, the Supreme Court limited the application of the doctrine in cases arising under the F.E.L.A. in the following language found at page 174: “If the companies are actually harassed and the plaintiff is prompted by vexation in the choice of a forum, there should be relief, and the courts will grant such relief if the request is candidly and convincingly presented. In other words, section 6 of the Federal Employers’ Liability Act gives this plaintiff a right which cannot be overcome by a mere balance of conveniences; that only where it is shown that plaintiff is motivated purely by vexation and harassment will an F.E.L.A. case be dismissed. If it is ‘shopping’ for a plaintiff to bring suit in a great metropolis where a large verdict is anticipated, why is it not also ‘shopping’ for a defendant to attempt to have the case dismissed on the ground that it should have been brought in a small community where the defendant anticipates a smaller verdict would result. This is in accord with the reasoning of Judge Hand in his concurring opinion in Ford Motor Co. v. Ryan, 182 F2d 329, (an antitrust suit under Title 15 of the US Code, which law contains a venue provision comparable to section 6 of the F.E.L.A.), where he said (p 332) : T wish to put my vote solely upon the ground that § 15 of Title 15 gives to plaintiff a privilege which a defendant must overcome by more than a bare balance of convenience between the two forums.’ ”

In The People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan, 30 Ill2d 178, 195 NE2d 634, the court said at page 180: “The statement in the Cotton case, ‘that only where it is shown that plaintiff is motivated purely by vexation and harassment will an F.E.L.A. case be dismissed’ is disavowed. The appropriate factors to be considered in ruling upon such a motion may be found in Whitney v. Madden, 400 Ill 185, and in other portions of the Cotton case.”

In Whitney, the Supreme Court referred with approval to Gulf Oil Co. v. Gilbert, 330 US 501, 91 L Ed 755, 67 S Ct 839, and in Cotton, at page 166, the court quoted from Gilbert as follows: “However, the predominate rationale of the cases corresponds substantially to the approach of Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 US 501, where it is stated at page 508: ‘But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’ ” The fact that the Supreme Court in Donovan, while specifically disavowing certain statements in Cotton, made no reference to Gilbert, leads us to conclude that it intended that the language quoted from Gilbert in Cotton remain applicable to the doctrine in Illinois.

From our review of the authorities, we conclude that before a motion to decline jurisdiction may be granted it must be apparent that the first three conditions enumerated in Whitney, i. e., the existence of an appropriate forum, the nonresidence of the parties, and a transaction which did not take place in Illinois are present along with one or more of the remaining conditions: i. e., the bringing of the action in Illinois for the purpose of frustrating the defendant, the undue burdening of and great and unnecessary inconvenience to the defendant, or the unnecessary burdening of the court. We have searched Cotton for other “appropriate factors to be considered,” as suggested in Donovan, and except for the one expressly disavowed by the court, fail to find any which modify the requirements enumerated in Whitney.

The review of the trial court’s order is governed by the rule that in the absence of an abuse of discretion its ruling should not be disturbed. This matter was presented to the trial court on motions and affidavits, and it heard no testimony. The scope of review under these circumstances is well defined in Weeks v. Bareco Oil Co., 125 F2d 84 (CA 7th) wherein the Court of Appeals said at page 93: “We are advised, and accede to the contention, that the District Court has a discretion, and the existence of that discretion narrows the scope of our investigation. The trouble with this irresponsible method of lightly disposing of cases, truly ours, is that discretion and abuse of discretion are relative rather than absolute terms. In most instances, we may say, generally, that the question of discretion is the display of sound judgment. In the proper case it may not be disturbed by an appellate court except for abuse. But what is abuse ?

“Determination of abuse of discretion involves the exercise, by us, of sound judgment upon the facts. If there is controversy as to facts, and if the facts themselves largely define the wisdom of the discretion, review by the appellate court is seldom effective and it should not be. Then appellate court’s review does not include trial court’s discretion.”

“If, however, the facts are not in dispute and it is a question of sound judgment based upon the undisputed facts which are before us as fully as before the trial judge (i. e., by affidavits), we are in about as good a position as he to say whether the discretion has been wisely exercised. In short both trial and appellate courts have the same situation upon which to exercise the same sound judgment.”

This court has reviewed, and has presently pending, cases brought under F.E.L.A. and arising from occurrences in other states. From our knowledge of the records in those cases, we conclude that although some additional expense may be incurred for travel and maintenance, the absence of subpoena power is not a material factor in compelling the attendance of employee witnesses. In many cases reviewed by this court, both F.E.L.A. and others, much of the medical testimony adduced by both plaintiffs and defendants is that of physicians practicing in St. Louis, Missouri, not amenable to subpoena, and is introduced in the form of evidentiary depositions. With respect to the testimony of nonmedical, nonemployee witnesses, defendant’s motion and affidavit suffer from the deficiencies which appear to have been the deciding factors in Cotton. We conclude, therefore, that it is not, as required by the authorities, apparent that the action was brought in Illinois for the purpose of frustrating, unduly burdening, or causing great and unnecessary inconvenience to the defendant. With respect to the question of whether retention of the case is an undue burden on the court, it is noted that both paragraph 12 of defendant’s motion (supra) and plaintiff’s assertion that “the Circuit Court of St. Clair County does not have a large backlog of cases . . . .” (supra) state mere conclusions,. there are no facts alleged by either party, and the trial court made no finding on this issue. As to the availability of another appropriate forum we quote from Lonergan v. Crucible Steel Co. of America, 37 Ill2d 599, 299 NE2d 536, wherein at page 606, the court said: “Defendants first assert that there is a serious backlog of cases in Cook County which requires reasonable restrictions on shareholders litigation against foreign corporations. This same argument was rejected in Cotton v. Louisville and Nashville Railroad Co., 14 Ill2d 144. Here, as in the Cotton case, there is no evidence as to the condition of the courts’ dockets in any other forum.”

In our opinion, the record fails to reflect the strong balance in favor of defendant necessary to deprive the plaintiff of his choice of forum. McKinney v. Hougland Towing Co., 109 Ill App2d 99, 248 NE2d 322. The judgment of the Circuit Court of St. Clair County is therefore reversed, and the cause remanded to the Circuit Court of St. Clair County with directions to vacate its order of dismissal and reinstate plaintiff’s cause of action.

Judgment reversed and cause remanded with directions.


text:
    Roy E. Anderson, Plaintiff-Appellee, v. William Elden and Jennie Long, Defendants-Appellants.
    Gen. Nos. 69-8, 69-140. (Consolidated.) (Abstract of Decision.)
    Second District.
    June 29,1970.
    Rehearing denied July 30,1970.
    William Elden, of Chicago, for appellants; Carbary, Carbary and Chapski, of Elgin, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: GOLDENHERSH, J.

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Petitioner-Appellant, v. B. M. Tally, Administrator of the Estate of Mark Tally, Deceased, Emma Tally, Jerry D. Tally, Rita Sue Tally, Defendants-Appellees.
    Gen. No. 69-48.
    Fifth District.
    July 2,1970.

      William J. Scott, Attorney General of State of Illinois, of Springfield, and Byron L. Connell, Jr., Special Assistant Attorney General, of Mounds, for appellant.
    W. C. Spomer, of Cairo, for appellees.
   GOLDENHERSH, J.

Petitioner appeals from the judgment of the Circuit Court of Pulaski County entered upon a jury verdict in an action to condemn land for use in the construction of a diamond interchange between Interstate Route 57 and a county road known as Mounds Blacktop Road northeast of Mounds in Pulaski County.

Defendants, Mark Tally and Emma Tally, are the record owners of the land here involved and defendants, Jerry D. Tally and Rita Sue Tally, are made parties defendant because of a contract of sale between them and the record owners. Defendant Mark Tally died subsequent to entry of the judgment and the administrator of his estate was substituted as a party.

The parcels taken by petitioner are part of a 60-acre tract. The tract was bounded on the north by Mounds Blacktop Road. Along this road petitioner took a strip 30 feet in width, comprising 1.1 acres, and at the northwest corner of the parcel it took a plot comprising 0.1 acre. The strip taken was directly in front of defendants’ house and on it were situated trees and shrubbery. The purpose of the taking was to elevate Mounds Blacktop Road to run over Interstate 57. Petitioner constructed a service drive paralleling the west boundary of defendants’ property and took a parcel of 0.7 acres off the west side of the tract, immediately to the south of the 0.1-acre plot.

After filing of the petition, by “quick take” proceeding (c 47, § 2.1 et seq., Ill Rev Stats), petitioner took title to and possession of the condemned parcels. Defendants filed a cross-petition alleging damages to the remainder of the tract. At the time of trial all of the construction for the interchange had been completed except for some landscaping, although the interstate highway was not yet open to traffic at that point.

Petitioner called Roy Harris, a right of way engineer who described the parcels taken and the changes effected as the result of construction of the interstate highway and service road. It then called Glen Gross, an appraiser, who testified that prior to the taking, the highest and best use of defendants’ land was for agricultural purposes, its fair cash market value was $20,000 and the value of the parcels taken was $1,500.

On petitioner’s motion the testimony of two of defendants’ valuation witnesses was stricken. J. D. Osborne called by defendants testified that the highest and best use of the 80-acre tract was for housing, its fair cash market value prior to the taking was $54,000, the value of the 1.9 acres taken was $1,800 and the value of the remainder of 58.1 acres, after the taking, was $450 per acre.

In rebuttal, petitioner called Gross who testified the remainder received a benefit by reason of its proximity to an interchange, and its highest and best use following the taking was commercial.

Petitioner called J. C. Frazier, who testified that prior to the taking, the highest and best use of the 60-acre tract was agricultural and its fair cash market value was $24,900. He stated that following the taking, the highest and best use of the remainder was for commercial purposes as the site for a service station, restaurant, motel and trailer park, and its value was $51,620.

The jury viewed the property, and returned verdicts awarding defendants $1,800 for the land taken and $20,000 for damage to the remainder.

Petitioner contends the record shows defendants’ witness, Osborne, was not qualified to testify as to the opinions expressed, and the court erred in denying its motion to strike his testimony.

Osborne testified that he was in the lumber business and in the business of building homes in Pulaski County. In connection with those businesses he had appraised property in subdivisions for 12 years. He was acquainted with defendants’ property and with real estate values in the area. He testified that prior to the taking, the highest and best use of defendants’ property was for a housing development. The construction of the interchange, with the elevation at the north boundary of the property in order to raise Mounds Blacktop Road over Interstate 57, and the construction of the drainage ditch along the road had destroyed this use. He testified that the value of the land taken was $1,800, and the damage to the remainder of 58.1 acres was $450 per acre.

One who is acquainted with the property condemned and has knowledge of real estate values in the vicinity is competent to testify as to its value. Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 66 NE2d 873; Trustees of Schools of Tp. No. 42 v. Schroeder, 23 Ill2d 74, 177 NE2d 178. The record shows Osborne to be so qualified.

Petitioner further contends that Osborne’s opinion as to damage to the remainder was improperly admitted because he did not consider the commercial benefits to the land by reason of its proximity to the interchange. Neither he nor the defendants were required to adopt petitioner’s theory with respect to the prospective use of the land, and petitioner’s objections go to the weight, not the admissibility, of his testimony.

Petitioner next contends that the verdicts are so excessive as to show passion, prejudice and partiality, and that the jury did not disregard the testimony which was ordered stricken. The evidence of damages was contradictory, the jury viewed the premises, and we cannot say the verdict is so palpably wrong as to require reversal. Central Illinois Electric & Gas Co. v. Scully, 17 Ill2d 348, 161 NE2d 304.

Finally, petitioner contends the trial court erred in denying it a new trial because the verdicts are against the manifest weight of the evidence. It argues there is no evidence of a need or demand for the type of housing development which Osborne testified was the highest and best use to which the property could be put, and Ms testimony as to such use was speculative. The testimony shows that defendants’ land is adjacent to Mounds, a consolidated school is located in the vicinity, and there is sufficient evidence from which the jury could have concluded that the property was best used for home sites.

We find no basis for reversal and the judgment of the Circuit Court of Pulaski County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.