author: MR. JUSTICE ADESKO

text:
    Marguirette Golden, Administrator of the Estate of Seymour Golden, Deceased, Plaintiff-Appellee, v. Big Bear Foods, Inc., Defendant-Appellant.
    Gen. No. 51,501.
    First District, First Division.
    November 18, 1968.

      Lloyd P. Douglas, of Chicago, for appellant.
    Ozmon and Lewin, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff brought this wrongful death action to recover damages caused by the death of Seymour Golden, plaintiff’s intestate. The jury returned a verdict for plaintiff in the amount of $20,000, upon which verdict the court entered judgment. Defendant filed a post-trial motion asking for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The court overruled the post-trial motion in its entirety, and it is from that order that defendant appeals. No questions are raised on the pleadings.

Defendant’s theory is that there was no evidence in the case showing that defendant was guilty of negligence or that plaintiff’s intestate was free from contributory negligence. In the alternative, it is defendant’s theory that he should be granted a new trial because of the court’s error in instructing the jury and in refusing to give the jury a special interrogatory on the question of Seymour Golden’s contributory negligence. Defendant also contends that the jury’s verdict was against the manifest weight of the evidence and was based on a capricious compromise.

Seymour Golden operated a dry goods store known as the Friendly Store at 2309 West Madison Street, Chicago, Illinois. Immediately East of the Friendly Store, the defendant operated the Big Bear Food Store; both stores were on the South side of Madison Street and were separated by a common wall. Behind both stores was an alley which ran in an East and West direction, and in this alley, at a point where the two stores were joined by the common wall, there was an incinerator. The location of the incinerator was such that its midpoint was near the common wall so that about half of the incinerator extended East of the common wall and half of it extended West of the common wall. The incinerator was owned and maintained by the defendant for the purpose of burning garbage and trash accumulated in the operation of the Big Bear Food Store. Located above the Friendly Store were several vacant apartments, previously rented to various tenants. In June, 1959, there was a fire in these apartments, and the tenants were forced to vacate the premises. At the time of this fire, the incinerator was damaged to the extent that it could not be operated, and the manager of the Big Bear Food Store was instructed by a Fire Department official not to use it. The manager then instructed employees of the store not to use the incinerator.

At about 6:00 p. m., on August 6, 1960, Seymour Golden was in the Friendly Store when smoke was noticed coming from the rear of the store. He ordered Curtis Wright, a handyman, to determine what the cause of the smoke was. Wright went to the alley and observed several boxes burning on top of the incinerator, and that flames from the burning boxes had ignited boards over a boarded up window of the Friendly Store. Plaintiff, who was also in the store, called the Chicago Fire Department. Prior to the arrival of the Fire Department, the smoke coming from the rear of the store was heavy, and flames began to appear. There was a balcony in the rear of the store which was used for storage, and among the items stored there were inflammable items such as paints and varnish. Smoke appeared to be coming from the balcony, and Seymour Golden went up onto this balcony with a hand operated fire extinguisher and attempted to put out the fire. While on the balcony, he was overcome by the smoke and collapsed. At this time, the Fire Department arrived and helped Curtis Wright remove Seymour Golden from the danger area. Seymour Golden was pronounced dead upon arrival at County Hospital. The cause of his death was smoke inhalation.

The issues presented for review are: (1) whether there were sufficient facts or circumstances from which the jury could infer negligence attributable to the defendant ; (2) whether the deceased, Seymour Golden, was guilty of contributory negligence as a matter of law; and (3) whether the trial court committed error in refusing to submit to the jury, defendant’s special interrogatory.

First, we are called upon to consider several aspects of the evidence presented at the trial. The record discloses that the case was tried on the theory of circumstantial evidence, and the defendant assails the verdict on the grounds that there was no evidence presented identifying any agent or servant of the Big Bear Food Store as having set the fire, nor any evidence of negligence in the maintaining of the incinerator. Plaintiff presented several witnesses at the trial, and relevant portions of their testimony was as follows:

Captain Grabalowski, Chicago Fire Department:

“Q. Now, officer, after you are back out in the alley, could you tell the Court and Jury what, if anything, you observed on the incinerator or in close proximity to the incinerator?
“A. Well, the remains of a lot of burned paper, cardboard wooden boxes.
“Q. And what kind of boxes were they ?
“A. They had been used for food products, produce, egg cartons, that type of thing.
“Q. And where were those cartons and boxes located?
“A. All behind the Big Bear Food Mart.
“Q. You mentioned ashes. Where were the ashes located ?
“A. In the incinerator, around the incinerator, on top of the incinerator. . . . there had been a fire in it. It had been extinguished and it was still warm. . . . The boxes behind the Big Bear Store that I saw were all around and in front of the incinerator. . . . Some had burned and some had not.”

Frank Szwedo, Chicago Police Department:

. . Q. All right. What else did you observe, if anything, at the time you went to the incinerator?
“A. Well, there was a lot of trash in the alley.
“Q. And where was that trash located ?
“A. Well, all over the alley, covering both sides of the alley around the incinerator, just general litter.
“Q. Would you tell us what type of trash you observed when you got back into the alley at the time you had indicated ?
“A. Well, it was mostly boxes and crates, things that a grocery store would have, cardboard boxes and wooden crates ....
“Q. At the time you were back in the alley, what, if anything, did you observe about the incinerator?
“A. There was a smokey substance emitting from the incinerator and I said it was either steam or smoke. And in and around the incinerator was a lot of trash accumulated, burnt material.”

Curtis Wright, decedent’s handyman:

“. . . Q. All right. What if anything after you noticed this smoke did you do ?
“A. I went around the back to see what had happened.
“Q. Who sent you out to the back ?
“A. Seymour Golden.
“Q. When you got out to the back, what if anything did you observe ?
“A. I saw some boxes piled up on the incinerator and right there I saw the fire. . . .
“Q. All right. And when you got there, did you see anyone?
“A. I saw a man.
“Q. Do you know who this man was ?
“A. No.
“Q. Could you describe him ?
“A. Right.
“Q. Well, describe him for us.
“A. He was light colored man and between thirty and forty. . . .
“Q. Had you seen this man prior ?
“A. Right.
“Q. And where did you see him?
“A. On the corner, and sometime in the Big Bear Super Market ....
“Q. During the period of time that you worked for the Friendly Store, did you at any time, use the incinerator in the alley behind the Big Bear Store?
“A. No sir.
“Q. How was the trash removed from the Friendly-Store ?
“A. They have a colored man come about once a week and he taken it out from them. . . .
“Q. During the period of time that you worked for the Friendly Store, Mr. Wright, and before this accident of August 6, did you ever have occasion to see anyone from the Big Bear Store using the incinerator?
“A. Right.
“Q. How often or frequently did you see that ?
“A. When I was by the back door. . . .
“Q. Did you see any fire back in the alley near the incinerator or on the incinerator at any time before six p. m. on August 6,1960 ?
“A. Yes sir.
“Q. What time was that ?
“A. About six-thirty, maybe.
“Q. Six-thirty in the morning ?
“A. Right.
“Q. And where was the fire at six-thirty in the morning ?
“A. In the incinerator.
“Q. Was there a fire on top of the incinerator?
“A. No sir.
“Q. Too?
“A. No, sir.
“Q. Was there somebody around the incinerator at the time ?
“A. Yes, sir.
“Q. And who was that?
“A. The same man, the same one that I saw before.
“Q. And was there anyone else around there at that time?
“A. No, Sir.”

Homer Slaughter, a Chicago Police Officer:

“. . . Q. And what if anything did you observe when you got back into the alley in the rear of the Big Bear Store?
“A. Incinerator was there where it was in use; ashes had been used for burning purposes. . . .
“Q. All right, and after that, Officer, could you tell us what you did?
“A. After leaving that, I went into the Big Bear Store to interview, I interviewed a male Caucasian—
“THE COURT: Who, Sir ?
“THE WITNESS: A male Caucasian who identified themself as the Manager of the store and in conversation with him, he stated that he had previously used, one of his employees had previously used the incinerator to burn rubbish and asked him how the fire started, and he say he has no knowledge of how the fire had started.”

Mrs. Marguirette Golden, the plaintiff, testified that she previously observed smoke in the Friendly Store prior to the August 6, 1960 fire. In late winter of 1960 and again in June of 1960, smoke was coming from something burning inside the incinerator, and she complained to Mr. Pinka, the manager of the Big Bear Food Store. Mr. Pinka informed plaintiff that he would “take care of it.” Plaintiff’s testimony was contradicted when she admitted that she had stated in her deposition prior to the trial that she had not spoken to anyone connected with Big Bear Foods concerning the burning of things in the incinerator, nor that she had any knowledge as to the last time prior to August 6, 1960, that she saw anything burning in the incinerator.

Mr. Pinka, the manager of the Big Bear Food Store, testified that in June of 1959 the incinerator was condemned as a hazard by the Fire Department, yet no repairs were made. He admitted used cartons, boxes and crates were stored outside of the store in the alley on several days of each week, and that some time after May 1959, unknown persons had started a fire in the alley. Pinka also stated that a fire could not be started in the incinerator due to its damaged condition, and a scavenger service was employed to remove all refuse. Pinka at no time saw any employee of defendant burn anything in the incinerator, and that he did not receive any complaints from the plaintiff relative to the use of the incinerator, although he knew plaintiff and saw her on many occasions. Other witnesses for the defendant stated that defendant did not use the incinerator, the incinerator was not operational, nor did they know of any fire in the incinerator after it was damaged.

Whether the above testimony circumstantially linked the fire to the Big Bear Food Store, and whether an employee of defendant was responsible for the fire were questions of fact for the jury to infer from the evidence presented. “Where there is no eyewitness, a fact at issue may be proved by circumstantial evidence, and such evidence consists of proof of facts and circumstances from which the court may infer other connected facts which usually and reasonably follow according to common experience.” Commerce Union Bank v. Midland Nat. Ins. Co., 53 Ill App2d 229, 202 NE2d 688 (1965); Devine v. Delano, 272 Ill 166, 111 NE 742 (1916). While facts may support more than one inference, the jury, in determining liability, is allowed to determine which inferences it will draw from circumstantial evidence. Cardona v. Toczydlowski, 35 Ill App2d 11, 180 NE2d 709 (1962).

In Lindroth v. Walgreen, 407 Ill 121, 94 NE2d 847 (1951), as here, the defendants argued strenuously that there were no eyewitnesses to the occurrence and no direct evidence of negligence on their part, and that the fire could have resulted from other causes. The Supreme Court answered this contention by stating:

“There is considerable argument over evidence in the record tending to show that the fire might have been caused by other agencies than the vaporizer. This court, of course, on the contention here in issue, is not concerned with the weight of credibility of the evidence, but only with the narrow question whether there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. . . . The key point of the controversy, is appellants’ contention that the fact of defect caused the fire and the injury complained of. There being no eyewitnesses, the determination of this contention must be found in the circumstances revealed by the evidence, if at all. . . . The inquiry here is whether the result reached below was one which is reasonable on the facts in evidence, not whether other conclusions might also have been reached.”

The Court also quoted the following from Lavender v. Kurn, 327 US 645, 90 L Ed 916, 66 S Ct 740 (1946):

“Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is complete absence of probative facts to support the conclusion reached does a reversible error appear.”

The facts and circumstances in the instant case constitute a reasonable basis for the jury’s conclusion that the defendant was responsible for the fire under the doctrine of respondeat superior, and that the defendant was negligent in the use of the incinerator. The defendant had been warned not to use their incinerator because of its defective condition, yet Curtis Wright stated he had previously seen someone from the Big Bear Food Store use the incinerator; Wright also testified there was a fire in the incinerator and that boxes were piled up on top of the incinerator. The empty grocery boxes, produce crates and trash were from the Big Bear Store, there being no other grocery store in the immediate area. Captain Grabalowski testified he inspected the incinerator after the fire was extinguished and found the remains of burned paper, cardboard and wooden boxes, the type of boxes and containers in which food would usually be packaged and shipped; the incinerator was still warm. Officer Szwedo testified that litter and trash was strewn about the alley and in and around the incinerator, the type a grocery store would usually discard. While plaintiff’s testimony was contradicted by her own statements given at her deposition, the credibility of this testimony remained for the trier of fact to determine. In Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270 (1963), the defendant introduced an impeaching statement of the plaintiff, made prior to trial, to which the jury gave little weight. On appeal, the court said:

“Even if that statement were to be considered as contradictory, we cannot say the jury should necessarily have adopted the conclusion of the defendants in this respect. The credibility of a witness, including a party, is for the jury to determine; evidence of prior inconsistent statements of a witness, if inconsistent, does not afford substantive proof of the truth of the facts therein stated, but is admissible to impeach the credibility of the witness; the jury is at liberty to draw an inference that the witness was either mistaken or corrupt in his testimony; prior inconsistent statements do not affect the competency of the testimony of the witness, or render his testimony nugatory.”

We cannot say that the finding of the jury is contrary to the manifest weight of the evidence presented at the trial.

Defendant’s next contention is whether the decedent was guilty of contributory negligence as a matter of law due to his attempt to put out the fire in the Friendly Store by himself. Defendant argues that Seymour Golden was in a position of safety at the front of the store, yet left this position of safety and went back to the balcony at the rear of the store with a fire extinguisher to combat the flames and heavy smoke that were beginning to fill the rear of the store. Defendant stresses that Seymour Golden’s actions and conduct were foolhardy, and the sole intervening cause of his own death, and that the court below committed error in permitting the jury to decide the case. Ordinarily, the question as to whether Seymour Golden was. or was not in the exercise of ordinary care and caution for his own safety must be solved by the jury. The ultimate conclusion of whether the conduct of the decedent is that of a reasonable person acting under similar circumstances shown by the evidence, is also a jury question. Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448 (1956). In the sudden emergency and excitement that arose at the time of the fire, it was not unreasonable for the decedent to take action which he believed necessary at the time to safeguard his property. In the leading case of Illinois Cent. R. Co. v. Siler, 229 Ill 390, 82 NE 362 (1908), the court stated:

“Where a person sees his property exposed to imminent danger through the negligence of another, he is justified in using every effort to save it which a reasonably prudent person would use under similar circumstances, even though the effort exposes him to some danger which he would otherwise have avoided. ... If in so doing, and while exercising such care for his safety as is reasonable and prudent under the circumstances, he is injured as a result of the negligence against the effect of which he is seeking to protect his property, the wrongdoer whose negligence is the occasion of the injury must respond for the damages.”

Upon careful consideration of the evidence and the record before us, and tested by the foregoing standard, we cannot say that Seymour Golden was contributorily negligent as a matter of law, nor that his conduct was foolhardy. The trial court properly denied a directed verdict for the defendant on this issue.

The final error asserted by defendant was the trial court’s refusal to submit to the jury a special interrogatory. The interrogatory submitted is set forth in its entirety:

“Q. Did Seymour Golden, at the time and immediately prior to the occurrence in question, fail to exercise due care and caution for his own safety so that his conduct was a proximate cause of his own death?”

Special interrogatories are provided for in section 65 of the Civil Practice Act, Ill Rev Stats 1965, c 110, par 65, which provides in part:

“. . . The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. . . .”

A special interrogatory must be given to the jury if such interrogatory tendered is upon an ultimate issue of fact and is in proper form. Debolt v. Wallace, 56 Ill App2d 380, 206 NE2d 469 (1965). As to whether a special interrogatory is in proper form or not, Wicks v. Cuneo-Henneberry Co., 319 Ill 344, 150 NE 276 (1926), sets forth a guiding principle governing the validity of special interrogatories:

“A special interrogatory is not proper unless it relates to one of the ultimate facts upon which the rights of the parties directly depend, and unless some answer responsive thereto would be consistent with some general verdict that might be returned upon the issues in the case. . . . All reasonable presumptions will be entertained in favor of the general verdict, while nothing will be presumed in aid of the special findings of fact.”

We note the form of the special itnerrogatory in the instant case is not entirely clear. Such interrogatory asking whether the decedent is guilty of contributory negligence must also ask whether that specific contributory negligence proximately caused the injury. The latter portion of the special interrogatory tendered by defendant, stating “. . . so that his conduct was a proximate cause of his own death?”, seeks an answer upon a much broader scope of the question when read in conjunction with the beginning clause of the entire sentence. The only conduct of Seymour Golden that could be considered in reference to the alleged contributory negligence as the proximate cause of his death is that conduct “at the time of and immediately prior to the occurrence in question,” and not Seymour Golden’s conduct in general, to which the words “his conduct” refer. The use of the words “. . . so that his conduct was a proximate cause of his own death” refers to not only a wider concept, but an entirely different concept than Seymour Golden’s conduct “at the time of and immediately prior to the occurrence in question.” Seymour Golden’s conduct may or may not have been one of the proximate causes of his death, but the jury would have to find that his conduct at the time of and immediately prior to the occurrence was a failure to exercise due care and caution for his own safety, and that that conduct was the proximate cause of his death. It is our opinion that the trial court properly refused to tender to the jury the interrogatory in its ambiguous form. Lau v. West Town Bus Co., 16 Ill2d 442, 158 NE2d 63 (1959).

Defendant objects also to the giving of an issue instruction on the ground that it permitted the jury to find facts not supported by any evidence. The record reveals that the trial court gave special attention to the precise wording of this instruction. Although the court had originally determined to give an instruction on this issue as offered by the plaintiff, when objection was made to it by defendant, the court personally reworded it in an attempt to give an instruction predicated upon the evidence.

From a review of the entire record, we have concluded there was sufficient evidence to warrant the giving of this instruction. The defendant also contends that the verdict was a “capricious compromise” on the part of the jury between the issue of plaintiff’s damages and defendant’s liability. The jury brought in a verdict of $20,000, which was two-thirds of the death limit. Defendant argues that “if the jury in fact found that the defendant was liable for the death of Seymour Golden, their verdict should have been for a much larger amount than $20,000.” This appears to be the basis upon which the defendant asserts that the verdict was a compromise and therefore he should be granted a new trial. While it is true that the jury did not award the maximum recovery permitted by statute, we cannot agree that the verdict was a “compromise” merely because the jury returned a verdict less than the statutory limit. We are of the opinion that the trial court properly denied defendant’s Post Trial Motion for judgment notwithstanding the verdict or in the alternative for a new trial.

Finding no error in the rulings of the trial court, the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: GOLDENHERSH, J.

license: Public Domain

text:
    Department of Public Works and Buildings of the State of Illinois, Petitioner-Appellant, v. Theron A. De Rousse, et al., Defendants-Appellees.
    Gen. No. 68-3.
    Fifth District.
    November 19, 1968.
    Rehearing denied December 19, 1968.

      William G. Clark, Attorney General of State of Illinois, of Chicago, Frank T. Plattner, Special Assistant Attorney General, of East St. Louis, and John J. Bennett, Division of Waterways, of Springfield, for appellant.
    Paul H. Nehrt, Law Offices, Earl H. Sachtleben, of Red Bud, for appellees.
   GOLDENHERSH, J.

Petitioner, Department of Public Works and Buildings of the State of Illinois, appeals from the order of the Circuit Court of Randolph County sustaining the traverse of the defendants and dismissing its petition for condemnation. Petitioner seeks to condemn certain lands for navigation, flood control, drainage, levee and water resources purposes.

The traverse raised a number of issues. The final order, as amended, concludes as follows: “It is therefore ordered, adjudged and decreed that the Petitioner is not legally authorized to acquire by condemnation proceedings the lands of the Defendants for failure to properly negotiate under the Law of Illinois, and the Defendants Traverse and Motion to Dismiss is granted to this extent and the remainder of said Traverse and Motion to Dismiss is denied.”

Petitioner argues that the evidence shows that the compensation to be paid for or in respect of the property “cannot be agreed upon by the parties interested” as contemplated by chapter 47, section 2, Ill Rev Stats 1967, and the court erred in sustaining the traverse.

Defendants contend that “a bona fide attempt to agree is a prerequisite to the filing of a condemnation petition” and none is shown by the evidence.

It is admitted that with respect to each parcel petitioner had written a letter in which it stated that an appraisal had been made by an independent appraiser of the fair market value of the land, and based on the appraisal it was offering a stated sum “as payment in full for fee title to the above described property, free and clear of all encumbrances together with all improvements, if any, located thereon.”

Each letter concluded with the following paragraphs:

“If you are agreeable to accepting this offer, please indicate such acceptance on the attached copy of this letter and return it to this office within seven (7) days from the date of this letter.
“Unless your acceptance is received within seven (7) days as set forth above, this will be presumed to be a refusal of the State’s offer based on an appraisal of the fair cash market value and other action will be initiated to acquire the property.”

Robert G. Clem, Chief of the Bureau of Rights-of-Way and Permits for the Division of Waterways, testified that the letters were in the nature of “final offers,” after negotiations which extended over a period of three months.

Defendants, DeRousse, Scherle, Hill, and Kuecker, testified that offers had been made orally prior to the receipt of the letters. Their testimony shows clearly that they and petitioner were unable to agree on the price to be paid for the respective tracts.

The principal argument advanced by defendants is that the offers were made for the fee simple title to lands which were encumbered by leases and easements, and acceptance of the offers would place upon the fee owners the burden of clearing the encumbrances. Relying upon Chicago, B. & Q. R. Co. v. Reisch, 247 Ill 350, 93 NE 383, defendants contend that petitioner was required to attempt to purchase each party’s interest in the land, and if necessary, to bargain separately for each of the interests. They argue further that the procedure followed by petitioner was not a bona fide attempt to agree.

The statute requires that before exercising the right of eminent domain the condemning authority shall first attempt to agree on the amount of compensation. County Board of School Trustees of DuPage County v. Boram, 26 Ill2d 167, 186 NE2d 275.

Upon the authority of County Board of School Trustees of Macon County v. Batchelder, 7 Ill2d 178, 130 NE2d 175, and Peoples Gas Light & Coke Co. v. Buckles, 24 Ill2d 520, 182 NE2d 169, we hold that the record shows a bona fide attempt to agree upon the amount of compensation to be paid for the parcels taken. In each instance a period of negotiation preceded the sending of the letter; there were additional negotiations thereafter with counsel, then representing the owners of one parcel, and presently representing all of the defendants. The letters were received by the defendants on dates three to four months prior to the filing of the petition. The evidence shows petitioner met the requirements of the statute and the trial court erred in sustaining the traverse and dismissing the petition.

The order of the Circuit Court of Randolph County is reversed and the cause is remanded with directions to vacate the orders of October 16, 1967, and November 13, 1967, reinstate the cause, and for further proceedings consistent with the opinion.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Otis McNeil, Defendant-Appellant.
    Gen. No. 51,799.
    First District, First Division.
    November 18, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Otis McNeil, was charged in Indictment No. 65-1006, with one count of burglary (Ill Rev Stats 1967, c 38, § 19-1) and one count of grand theft (Ill Rev Stats 1967, c 38, § 16-1 (a)) arising out of the burglary. The cause was tried before a jury and resulted in a verdict and judgment of guilty on both counts. The sentence of the court was 15 to 25 years on the burglary count and 8 to 10 years on the grand theft count. The sentences were to run concurrently.

The defendant, on appeal, contends that the following errors occurred: (1) the defendant was denied the right of adequate representation and preparation for trial because his attorney was given one day’s notice of the trial; (2) there was a total failure of proof of corpus delicti of both crimes charged; (3) there was a total failure of proof as to the value of the property stolen, and as a result the conviction for grand theft was unlawful; (4) mug photographs of the defendant were permitted into evidence and thus suggested to the jury that the defendant had prior arrests and convictions; (5) burglary was improperly defined by the prosecutor in that he stated to the jury that one can burglarize premises he was invited to; and (6) conviction and sentencing for two crimes arising out of the same transaction, act, or acts is improper.

We first consider whether the defendant was denied adequate time to prepare his defense. Our determination of this issue is decisive of this appeal.

The record reveals that the defendant had a number of pending indictments, 65-2524, 65-2523, 65-2479, 65-1007, and the indictment in the instant case, 65-1006. On January 11, 1966, the defendant and several codefendants in some of these indictments appeared before Judge Edward F. Healy. The prosecutor informed the court that the State had been ready for trial for a long time, but that continuous substitution of attorneys prevented the cases from proceeding to trial. Judge Healy remarked that cases were on call day after day, but they were not being disposed of because defense attorneys would come before the court and say they were not ready to proceed. After admonishing the attorneys that the cases would be tried and that the attorneys had better be ready, Judge Healy said that the trial would begin January 19, 1966, and that there would be no more continuances. The attorney for the defendant, Otis McNeil, then asked the prosecutor to make an election as to which indictment against his client the State would proceed with first. The record shows the following discussion took place:

The Court: I imagine they are going to try the case with all of the defendants in it.
The Prosecutor: We have already. We have already elected to proceed on 65-2523.
The Defense Council: In other words, that will be the case that we are going to go to trial on ?
The Prosecutor: That is correct.

On January 19, 1966, the prosecutor announced that a jury trial was in progress; that the day before he had called off his witnesses, and that he was therefore not ready to go ahead with the trial. He then asked that the cause be continued to January 24th. The hearing before Judge Healy on January 19th ended after the prosecutor said “Just to summarize, the State would like to have the other cases without subpoenas, except for 65-2523.”

The record shows that the matter came before the court again on March 21, 1966, but that it was continued to April 18th. On April 18, 1966, the prosecutor announced he was going ahead on indictment 65-2535, not 65-2523. After some discussion, the prosecutor explained that the State was ready to go to trial on indictment 65-2523, “but in view of the fact other matters have transpired as to the other defendants, the State is to take another position to the effect that the State will proceed on one of the other charges if your Honor will hold it on call.” Judge Healy replied: “All right. Order of Court as to Otis McNeil alone, hold on call until Wednesday . . . .” The prosecutor stated that he would let the defense counsel know that morning or later that afternoon which case the State would proceed with two days later.

On April 20, 1966, the prosecutor advised the court that he was ready to proceed on indictment 65-1006 (the indictment in the case at bar). When the defendant requested a continuance the court said, “You are on trial, we have been trying to get you on trial for a year and we are going to trial.” The defendant replied that his “lawyer only had this case since Monday” two days before. The defendant protested that his attorney had no defense and repeatedly insisted that he wanted another lawyer. The matter proceeded to trial and the State presented its case. No evidence was offered on behalf of the defendant. The jury returned a verdict of guilty on both the charge of burglary and the charge of grand theft.

The defendant contends that his attorney was given only one full day to prepare for trial on indictment 65-1006. The State argues that the defendant entered into a course of conduct to evade trial and despite the fact that he had multiple indictments pending, the defendant’s lawyers had adequate time to prepare defenses to all indictments. The State also maintains that the defendant had refused to cooperate with his prior attorneys and made no objection on April 18th to the matter being set for trial two days later. We find the State’s argument unconvincing.

The record clearly shows that the State elected to proceed on indictment 65-2523 on January 11th. After several continuances the prosecutor announced on April 18, 1966, that the State was ready to go ahead on indictment 65-2523, but in view of matters involving other defendants he would proceed with one of the other indictments. Thus, it was not until April 18, two days before the trial, that the defendant’s attorney first learned that the State was not going to trial on indictment 65-2523. It is unclear from the record when the State advised the defendant that they would proceed with the present indictment, but the record indicates that it was not until the case was called for trial two days later, on April 20th, that the State announced it was proceeding with indictment 65-1006.

The State relies heavily on People v. Solomon, 24 I112d 586,182 NE2d 736, to support its position. In Solomon, the Court held that the trial court did not abuse its discretion when it denied the defendant a continuance. The facts in Solomon showed that the cause was set for trial approximately two weeks before the date of the trial and that the defendant utterly refused to cooperate with the public defender appointed to defend him. The Court held that under those circumstances the defendant could not “now be heard to complain that the denial of the motion for continuance embarrassed his defense or prejudiced his rights.” People v. Solomon, 24 Ill2d 586, 590, 182 NE2d 736. In the case at bar, however, the State elected to go ahead on one particular indictment. The State’s decision was made more than three months before the trial on April 20th. On April 18, 1966, the prosecutor chose to proceed with a different indictment, giving the defendant at the most only one full day’s notice. For this reason we do not consider Solomon to be applicable on the facts. This is also true of the other cases cited by the State.

The Illinois Supreme Court stated in People v. Hambleton, 399 Ill 388, 393, 78 NE2d 293:

A defendant in every criminal case is entitled, under the law, to a reasonable time and full opportunity to prepare for his trial, and that right is one guaranteed to him by the constitution. Innocent or guilty, or whatever his position might be, he is entitled to sufficient time to prepare his defense. There is not one law for an innocent man and another for a guilty man.

We have concluded, for the foregoing reasons, that under the circumstances of this case, the defendant’s motion for a continuance should have been granted in order to give the defendant ample opportunity to prepare for trial.

The trial court committed prejudicial error in not granting a continuance which requires a new trial. Our disposition on this issue makes it unnecessary to consider other grounds raised by the defendant on this appeal. Other errors complained of undoubtedly will not recur.

For the reasons herein given, the judgment of the Criminal Division of the Circuit Court is reversed and remanded for a new trial.

Reversed and remanded.

ADESKO and MURPHY, JJ., concur.

       The indictment in the present appeal had been pending since April 1965.


text:
    Julius A. Ramonas and Ingrida Ramonas, Plaintiffs-Appellees, v. Albert Kerelis and Alfonsas Kerelis, d/b/a Kerelis Construction Company, Defendants-Appellants.
    Gen. No. 52,090.
    First District, First Division.
    November 18, 1968.

      Frederick S. Stein, of Chicago, for appellants.
    Blumenthal and Schwartz, of Chicago (Milton M. Blumenthal and Arthur F. Schwartz, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an action concerning an arbitration award rendered in favor of the plaintiffs. The controversy arbitrated arose out of a contract which contained a clause providing that any disagreement between the parties should be submitted to arbitration under the rules of the American Arbitration Association, or the American Institute of Architects. Defendants appeal from the judgments entered in the Circuit Court of Cook County on September 27, 1966, and on December 21, 1966, confirming an arbitration award in favor of plaintiffs.

On March 14, 1962, Kerelis Bros. Construction Co., as contractor, and Dr. & Mrs. Julius A. Ramonas, as owners, entered into an agreement for remodeling work on plaintiffs’ property. The agreement was signed solely by Alfonsas Kerelis as contractor, and by the aforementioned owners. Article 9 of the contract provided:

“CORRECTION OF WORK
“The Contractor shall re-execute any work that fails to conform to the requirements of the contract and that appears during the progress of the work, and shall remedy any defects due to faulty materials or workmanship which appear within a period of one year from the date of completion of the contract. The provisions of this article apply to work done by subcontractors as well as to work done by direct employees of the Contractor.”

Article 19 of the contract provided:

“ARBITRATION
“Any disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration, and judgment upon the award rendered may be entered in the court of the forum, state or federal, having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that either party may have against the other. The arbitration shall be held under the Standard Form of Arbitration Procedure of The American Institute of Architects or under the Rules of the American Arbitration Association.”

On March 3, 1966, the plaintiffs instituted arbitration proceedings in accordance with the rules of the American Arbitration Association by serving a demand for arbitration upon the defendants and filing copies thereof with the Association. In the demand for arbitration, the plaintiffs contended that the addition to their property was carelessly and negligently constructed by defendants and in a poor unworkmanlike manner, and was not in accordance with the plans or in compliance with the Building Code. The defendants, after receiving notice of the commencement of arbitration proceedings, informed the Association in writing that they would not participate in the proceedings.

A hearing was scheduled by the appointed arbitrator for April 27, 1966, and notices were sent to the parties. The defendants did not appear. At the hearing plaintiffs presented witnesses and evidence to substantiate their claim and damages. Shortly after the hearing, the defendants were advised by the Association that the arbitrator would afford them an additional opportunity to submit any evidence to him for his consideration, and that he would also be willing to arrange for another oral hearing if the defendants so desired. The defendants did not respond. On June 20, 1966, the arbitrator rendered an award in favor of the plaintiffs and against the defendants in the amount of $6,895 and $225 costs. A copy of the award and the arbitrator’s opinion was forwarded to the defendants on the same day. The arbitration award was not paid, and plaintiffs instituted proceedings in the Circuit Court on July 20, 1966, to have the award confirmed and judgment entered thereon. Defendants were served on August 2, 1966, and on August 31, 1966, they filed their motion to dismiss the plaintiffs’ application for confirmation of the arbitration award. The defendants’ motion was predicated upon the proposition that the arbitration proceedings were null and void under Illinois law because it constituted an attempt to oust the jurisdiction of the courts over disputes which were not in existence at the time the contract was entered into and was therefore against the public policy of this State.

On September 27, 1966, the trial court held a full hearing on the matter. The court, in denying defendants’ motion, stated that the Uniform Arbitration Act, Ill Rev Stats 1965, c 10, §§ 101-123, passed on August 24, 1961, changed the public policy and law of our State, so that a provision in a written contract after that date to submit future controversies to arbitration is valid and enforceable and not against the public policy of our State. The court then confirmed the arbitration award and entered judgment in favor of the plaintiffs and against the defendants, Albert Kerelis and Alfonsas Kerelis, individually and doing business as Kerelis Construction Company, in the sum of $7,120 and costs of suit.

Thereafter, on October 20, 1966, the defendants filed a petition to vacate the judgment. In their petition, the defendants alleged for the first time that one of the defendants, Albert Kerelis, was not a party to the contract, had never signed the contract, and that the award should not have been made against him. Defendants also alleged that on July 28, 1962, the contractor (Alfonsas Kerelis) completed all work on the premises, and on that date the plaintiffs paid the balance due and accepted all work done, that more than one year had elapsed from the date of the completion of the work, and that by the terms of the contract, specifically Article 9 and Article 12, the contract became inoperative after July 28, 1963, this being one year after the work was completed. Article 12 of the contract provided, among other things:

“PAYMENTS
“. . . The making and acceptance of the final payment shall constitute a waiver of all claims by the Owner, other than those arising from unsettled liens or from faulty work appearing thereafter, as provided for in Article 9, and of all claims by the Contractor except any previously made and still unsettled. . . .”

Plaintiffs’ answer to the petition denied the allegations contained therein, and affirmatively stated that all matters alleged by the defendants in their petition should have been presented by them to the arbitrator in the arbitration proceedings and not to the court. A hearing was set for November 15, 1966, at which time the defendants were ordered by the court to file an amended petition to vacate the judgment, which they did on November 23, 1966. The hearing was then continued to December 21, 1966. In defendants’ amended petition to vacate the judgment, defendants, in addition to what was previously set forth in the original petition, alleged for the first time that in the arbitration proceedings, the arbitrator erred in determining the amount of the plaintiffs’ award by including therein an allowance for architectural fees and attorney fees. Plaintiffs’ answer to the amended petition stated that they were totally unaware of how the arbitrator had computed the amount of his award, and at no time had requested attorney fees nor knew that attorney fees were included in the lump sum award. Plaintiffs again stated the defendants were late in raising this matter, as this should have been brought to the attention of the arbitrator.

At the hearing on the amended petition to vacate and the answer thereto, counsel for the plaintiffs informed the court that the plaintiffs were willing to agree to a correction and modification of the award and judgment as to any error made by the arbitrator in computing damages. On December 21, 1966, the trial court denied the amended petition filed by the defendants and ruled that the matters contained therein should have been presented to the arbitrator in the arbitration proceedings and that the failure of the defendants to do so was of their own choosing. The court also ordered that the judgment heretofore entered in the cause in favor of the plaintiffs “be and the same is hereby amended nunc pro tunc as of September 28, 1966, to read that the plaintiffs, Julius A. Ramonas and Ingrida Ramonas, have judgment against the defendants, Albert Kerelis and Alfonsas Kerelis, individually and doing business as Kerelis Construction Company in the sum of $5,620.00 and costs of this suit.” The trial court had deleted $1,000 of attorney fees and $500 of architectural fees from the award.

On appeal defendants contend (1) that the dispute was not subject to arbitration; (2) that since one of the defendants, Albert Kerelis, did not sign the contract of March 14, 1962, there was no basis for the arbitrator to proceed against him, or enter an award against him, and the court had no authority to enter judgment against him and (3) the judgment was contrary to law.

We consider first the question of whether the dispute was subject to arbitration. Prior to the adoption of the Uniform Arbitration Act, on August 24, 1961, Illinois followed the common-law rule that agreements to arbitrate future disputes divested courts of their jurisdiction, and had refused to enforce such contractual agreements as contrary to public policy. Interstate Bakeries Corp. v. Bakers, Cracker, Pie and Yeast Wagon Drivers Union, 31 Ill2d 317, 201 NE2d 452 (1965). Section 1 of the Uniform Arbitration Act, Ill Rev Stats 1965, c 10, § 101 provides:

“Validity of arbitration agreement. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the revocation of any contract.”

It is therefore apparent the statute has removed the public policy objections upon which the common-law rule was based. An agreement in a contract to arbitrate future disputes arising out of the contract, entered into after August 24, 1961, is valid and enforceable. School Dist. No. 46 v. Del Bianco, 68 Ill App2d 145, 215 NE2d 25 (1966). “The basic intention of our Arbitration Act is to discourage litigation and foster the voluntary resolution of disputes in a forum created, controlled and administered by the agreement to arbitrate and by the statute.” Flood v. Country Mut. Ins. Co., 89 Ill App2d 358, 232 NE2d 32 (1968). The contract between the parties was entered into after the adoption of the Uniform Arbitration Act, and the terms of Article 19 of the contract specifically provided for the arbitration of “any disagreement arising out of this contract or from the breach thereof.” The Act was deemed a part of the contract the same as though such Act was expressly incorporated therein. The dispute between plaintiffs and the defendants regarding defects in workmanship was irrevocably committed to arbitration pursuant to Article 19 of the contract.

Defendants’ argument that payment by the plaintiffs on July 28, 1962, constituted acceptance of the completed work and that the only remaining obligation of the defendants was to cure any defects arising from their work for a one-year period thereafter is without merit. Article 12 of the contract specifically states that payment is not a waiver of “faulty work appearing thereafter.” Likewise, defendants’ contention that the contract was inoperative after July 28, 1963, is deceptive. Article 9 of the contract expressly states that the defendants “. . . shall remedy any defects due to faulty materials or workmanship which appear within one year from the date of completion of the contract.” Therefore all defects appearing within one year from the completion date are the responsibility of the defendants, and their obligation to remedy those defects continues after the expiration of the one year when they fail or refuse to make repairs on legitimate complaints which occurred within the one year period. Plaintiffs presented evidence to the arbitrator during the course of the arbitration proceedings that the defects in workmanship appeared before the expiration of the one-year period after the work had been completed.

Defendants were notified of these defects before the expiration of the one-year period, yet the defendants failed to remedy them. It is our opinion that the contract did not come to an end on July 28,1963, thereby rendering the arbitration clause inoperative. Under the above circumstances, defendants cannot now assert their obligation to remedy past defects has terminated due to the passage of time, that the contract was no longer operative, that the arbitration provision was no longer in effect, nor that the arbitrator had no authority to proceed in the matter. We do not believe that defendants’ refusal to arbitrate released them from their agreement to do so pursuant to Article 19 of the contract.

It will be observed that neither of the defendants bothered to appear at the arbitration proceedings. Although defendants were given every opportunity to participate in the proceedings, they refrained from doing so, and as a consequence, the arbitrator proceeded to examine the dispute ex parte. While neither party may prevent the rendition of a binding arbitration award by his default in appearing at the proceedings, such award, if rendered in compliance with all legal requirements, is a complete, final, and binding determination of a controversy which was properly before the arbitrator. Springs Cotton Mills v. Buster Boy Suit Co., 275 App Div 196, 88 NYS2d 295 (1949). It is our opinion, and we so hold, that where an agreement to arbitrate is incident to the main agreement of the parties, and one of the said parties, without fault on the part of the other, fails and refuses to proceed with the portion of the agreement providing for arbitration, then such other party may proceed to establish his claim before the arbitrator regardless of the nonappearance of the other party. See Minton v. Mitchell, 89 Cal App 361, 265 P 271 (1928).

Considered next is defendant Albert Kerelis’ contention that since he did not sign the contract, there was no basis for the arbitrator to proceed against him or to enter an award against him, and that the court had no authority to enter judgment against him. At the outset, we note that in defendants’ written motion to dismiss plaintiffs’ application for confirmation of arbitration award in the trial court, submitted on August 31, 1966, the defendants admit they had entered into a written contract with, the plaintiffs on March 14, 1962. Pertinent provisions of the motion are as follows:

“. . . 2. That it affirmatively appears from the Application that it is based on an Arbitration Award pursuant to a contract entered into by and between the parties on the 14th day of March, 1962. . . .
“5. That the contract entered into between the parties on March 14, 1962, was completed, the work accepted, and the contract price paid by the plaintiffs to the defendants and their subcontractors.
99

In the affidavit of defendants’ counsel in support of defendants’ motion to dismiss plaintiffs’ application for confirmation of arbitration award, also dated August 31, 1966, it is stated:

“. . . 2. That on March 14, 1962, the plaintiffs and defendants entered into a contract whereby the defendants agreed to furnish labor and material in building an addition to the property of the plaintiffs in accordance with the architectural drawings prepared by Albert Kerelis.”

However, on October 20,1966, the defendants filed a petition to vacate the judgment, wherein they alleged that Albert Kerelis was not a party to the contract since the contract was executed solely by Alfonsas Kerelis. Defendants assert in their brief that since Albert Kerelis did not sign the contract and had no interest in the subject matter, the arbitration award and judgment against him was invalid. Evidently the arbitrator concluded that Albert Kerelis was in fact a party to the contract pursuant to the evidence presented by the plaintiffs at the arbitration proceedings. We agree with the trial court that defendants had their opportunity to present their contentions and arguments to the arbitrator but voluntarily chose not to do so. The matters alleged by the defendants should have been presented by them to the arbitrator in the arbitration proceedings and not to the trial court. In refusing to appear, both defendants acted at their own peril, and Albert Kerelis’ defense that he did not sign the contract nor was a party to the contract was lost due to a situation of his own creation. In International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Shapiro, 138 Conn 57, 82 A2d 345 (1951), quoting from Sturges, Commercial Arbitration & Awards, p 449, it was stated:

“(I)f a party contests the jurisdiction of the arbitrators, and withdraws; or, if he never appears for that reason; he may be caught in this situation: he may lose in his defense to the proceedings to enforce the award or in his direct proceedings to vacate the award; the jurisdiction of the arbitrators may be sustained against his objection. In such case, he will not have been heard, and will have no further opportunity to be heard, upon the merits of his case.”

We concur with the above quoted provision, and upon careful review of the record before us, we find no merit to defendant Albert Kerelis’ contention.

Defendants’ final contention is that the judgment is contrary to law because the arbitrator exceeded his powers by including in the award $1,000 attorney’s fees and $1,000 architect’s fees, the award could not be altered by the court, and that the court should have vacated the award in toto pursuant to section 12 of the Uniform Arbitration Act. Ill Rev Stats 1965, c 10, § 112.

The allowance for fees was unknown to the plaintiffs at the time of the award but became known several months later through a letter from the arbitrator to the American Arbitration Association. Upon being apprised of this error in computing damages, plaintiffs informed the court they were willing to have the award and judgment modified, whereupon the court corrected the award by reducing the amount of the architectural fees and eliminating entirely the attorney fees.

We do not believe the arbitrator exceeded his powers, nor that the award should be set aside. When the award of an arbitrator conforms with the submission, and no fraud or mistake appears on its face, the award will not be interfered with or set aside for errors of law or fact. Podolsky v. Rashin, 294 Ill 448, 128 NE 534 (1920). Where miscalculation in assessing damages has been committed by the arbitrator, and such miscalculation is of such a character as not to affect the merits of the controversy on the matters submitted, the court may reduce the award at the request of the party in whose favor that award was given. Section 13 of the Uniform Arbitration Act, Ill Rev Stats 1965, c 10, § 113, vests the court with the power to modify or correct an award under the following circumstances:

“(a) Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
“(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
“(2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
“ (3) The award is imperfect in a matter of form, not affecting the merits of the controversy. . . . ”

The trial court did not commit error by reducing the award to eliminate a miscalculation by the arbitrator in computing damages.

We therefore conclude that the judgment and orders of the trial court in the instant case are correct and that they should be and they are hereby affirmed.

Judgment affirmed.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James McGrew (Impleaded), Defendant-Appellant.
    Gen. No. 52,254.
    First District, First Division.
    November 18, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, Joseph McGrew and Alford Brown, Jr., were found guilty of the offense of armed robbery. McGrew was sentenced to two to six years in the penitentiary and, on appeal, he contends that he was not proved guilty beyond a reasonable doubt.

On August 26, 1966, at about 10:30 p. m., Clemmons Otte approached his automobile, which was parked on Ogden Avenue in Chicago, and within a half block of the laundromat he operated at 1500 Clybourn. The area was illuminated by streetlights and by cars on Ogden. As Otte was about to enter his car, two men approached and asked if he had any money. Otte replied he had $20. While defendant McGrew prevented Otte from entering the car by pressing his knee in the door and holding a knife, Brown removed Otte’s wallet containing the $20.

On the same evening, Otte gave the police a description of the two men and told them he could identify both of them, but he knew one better than the other. On September 27, 1966, police officers came to his laundromat with about six pictures, and he identified pictures of McGrew and Brown as the two who robbed him on August 26. Later on the same day, at a lineup in the Chicago Avenue station, in which there were four Negroes of similar physical appearance, he “recognized both of them as the men who held me up.” During the trial Otte identified McGrew and Brown as the men who committed the holdup.

On direct examination, Otte testified that he had seen Brown in his place of business “a hundred times or more,” and “my wife used to do the laundry for him.” He had seen McGrew in the laundromat “a couple of dozen times.”

On cross-examination, Otte testified that he was 62 years old and wore glasses. He made no outcry, and McGrew had a knife in front of him. Brown brought his laundry in for a period of a year, and “my wife done that as a favor to them because they loved to play cards.” They would leave the laundry, and after two or three hours they would return and pick it up and take it home.

Otte was cross-examined at length regarding the description he gave the police of his assailants and of what transpired when the police showed him the photographs and at the lineup. He said when the police officers showed him the pictures, he was asked, “ ‘Can you recognize any of these fellows as the men who held you up?’ And as I looked at them I recognized both of them right away, and I said ‘These are the two fellows.’ He said, ‘O. K., do you want to come to the station this evening?’ I said, ‘Yeah, after I close up, after eight o’clock.’ So I went there after eight o’clock, and that’s when I recognized both of them as the men who held me up.” He was not informed by the police that the men would be in the lineup. He was told to go to the station and look at a lineup. As to the question, “Now, in other words, you had that picture in your mind at the time when you picked these men out at your place of business, you could remember what these pictures looked like?,” Otte responded, “Listen, I could have picked those men out of a thousand pictures. ... I have had the pictures of these men in my mind — right along, from the date that I was held up until the day the officer came to my place of business. That’s what I am trying to say. I didn’t need no pictures to recognize the men, believe me.”

Both Brown and McGrew testified and denied the robbery. Brown testified he lived with his parents. He knew Otte and went every week to the laundromat. He usually dealt with Otte’s wife. “We left our clothes in the laundromat and she would take them and dry them for us.” He testified as to his activities on the evening of August 26 — he arrived home at about eight o’clock and stayed home all night.

Defendant McGrew denied the robbery or that he carried a knife. Brown and he were friends and met several times a week. He was not with Brown on August 26, and at the time of the robbery he was in a pool hall on North Avenue. As to Otte, he testified that he had seen him around the neighborhood, and “I used to go by the laundromat and see him.” He did not see Otte on August 26.

Alibi witnesses testified for each of the defendants. Robert Griffin testified that on the evening of September 26, he played pool with defendant McGrew at a pool hall on North Avenue until 11:30 and then remained with him at McGrew’s sister’s home until the next morning. James Brown testified that he was with his brother, the defendant, Alford Brown, throughout the evening at their home watching television.

Defendant McGrew’s contention that he was not proved guilty beyond a reasonable doubt is based upon the assertion that Otte’s identification was uncertain and police induced. He maintains that there was “no clear and positive identification of these men,” and if Otte’s identification of defendants “was clear and positive why was further identification by photographs and lineup necessary? ... As a matter of fact, the only reason pictures were shown to Otte was to bolster up a doubtful and uncertain identification of the defendant and Brown.”

Defendant’s citations on single identification include People v. Ikerd, 26 McGrew2d 573, 188 NE2d 12 (1963), where it is said (p 579):

“This court has reiterated the rule that a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful and uncertain. . . . However, a single identifying witness has been held sufficient to sustain a conviction.”

Defendant also quotes at length from Wall’s Eye-Witness Identification in Criminal Cases, p 26:

“. . . [I] n court identification is of little testimonial value, however necessary it may be for a conviction. The witness knows that the defendant is to be found in just one place in the courtroom, a fact sometimes emphasized by courts when assessing the value of such an identification. What is of crucial importance, however is the witness’s original identification of the defendant, for this original identification ‘may quite conceivably decide the fate of the man ....’”

Defendant also argues that the testimony of the police officers as to what Otte said when shown the photographs and at the lineup was hearsay and inadmissible. Defendant’s citations on this point include People v. Wright, 65 McGrew App2d 23, 212 NE2d 126 (1965), where it is said (p 28):

“In our opinion these statements made by the complaining witness and repeated by the police officers as to the identification of defendant are hearsay and inadmissible. The sole evidence involving defendant in the crime was the testimony of the complaining witness. The effect of such additional statements was to give the impression to the jury that the evidence against defendant was corroborated.”

Defendant also asserts that the lineup in which the complaining witness viewed the defendant was improperly composed and conducted, and the identification thus made was invalid and inadmissible. Defendant argues there were only four men in the lineup, and “in view of the faulty composition of the lineup the purported identification of the defendant McGrew and of Brown was unfair and improper and not admissible in evidence.” On this point defendant’s authorities include People v. Gooden, 403 Ill 455, 86 NE2d 198 (1949), where it is said (p 460):

“It is quite possible that the face in the picture examined by Benton at the bureau of identification would remain indelibly upon his mind, and having fixed an association of defendant’s picture in his mind in connection with the robbery, it is quite possible that upon viewing defendant in the lineup Benton might have been influenced by what he had observed in the picture.”

Defendant also cites Wall, p 41:

“As will be pointed out later, however, the number of persons in the lineup obviously has an important bearing upon its fairness, and the smaller the number of participants, the more will the lineup resemble a showup, and partake of all its weaknesses.”

We are not persuaded that defendant’s authorities apply to the facts in this case. Defendant’s theory on single identification and some of defendant’s authorities were discussed at length by this Division in People v. Dial, 95 Ill App2d 345, 238 NE2d 122 (1968). The identification testimony of the instant complaining witness was unusually positive. He knew both defendants, having seen them many times at his place of business, and both defendants testified that his testimony was correct. At the scene of the holdup, lighting conditions were good and Otte had ample opportunity to view them.

Considering the conditions under which the defendants were observed, and considering that Otte’s identification was positive, credible and unshaken on cross-examination, we think it is clear that the identification of defendant McGrew was not “vague, doubtful and uncertain.” We cannot see how Otte’s photograph and lineup identifications, if improper in any manner, or the incompetent and hearsay testimony of the police officers with regard to the identification of McGrew by Otte, were “so unduly prejudicial as fatally to taint his [defendant’s] conviction.” We conclude the identification of defendant McGrew was sufficient to establish him guilty beyond a reasonable doubt.

As to defendant McGrew’s alibi evidence, the remarks made in People v. Capon, 23 Ill2d 254, 178 NE2d 296 (1961), apply here. At p 257, it is said:

“ [T] he alibi evidence of the defendant is in conflict with the evidence of the robbery victim. However, a consideration of the whole record reveals that defendant had a fair trial and was proved guilty beyond a reasonable doubt.”

Finally, defendant contends that the court’s examination of James Brown and Officer Hill was prejudicial to him, and that such examination was wholly unnecessary and improper. Defendant’s authorities include People v. Krejewski, 332 Ill 120, 163 NE 438 (1928), where it is said (p 125):

“This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination, It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examination. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances in each particular case, but in so doing he must not forget the function of a judge and assume that of an advocate.”

Considering the nature of the questions, the circumstances of this case and the fact that this was a bench trial, we find no abuse of discretion here. A trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure. The propriety of such examination rests largely in the discretion of the trial court, and this is especially true where the cause is tried without a jury and the danger of prejudice lessened. People v. Palmer, 27 Ill2d 311, 314-15, 189 NE2d 265 (1963).

We conclude there was substantial positive identification evidence to support defendant’s conviction beyond a reasonable doubt, and the trial errors, if any, were not prejudicial.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    Ardath Seibert and William R. Seibert, Plaintiffs-Appellants v. Frank J. Grana and Caroline Grana, Defendants-Appellees.
    Gen. No. 52,462.
    First District, First Division.
    November 18, 1968.

      Theodore L. Forsberg, of Chicago, for appellants.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard and Frederick W. Temple, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an action in tort against the owner of an apartment building for personal injuries resulting from a fall by the plaintiff, Ardath Seibert, on the steps of the premises. The jury returned a verdict finding the issue for the defendants and this appeal followed.

In view of the fact that we have determined that this cause should be remanded for a new trial we briefly recite the evidence. On March 2, 1961, at 7:30 p. m., the plaintiff, Ardath Seibert, and her husband, William R. Seibert, visited Adele Gore, a tenant who lived on the second floor of the premises in question. At 11:00 p. m., the plaintiff and her husband left. They walked down a hall stairway leading to the entrance. The door at the entrance swings outward when opened. As a person leaves the premises he steps out and down onto a stoop. The door must be closed before it is possible to leave the stoop and continue to the front sidewalk. On the night in question the doorway light was not on and the plaintiff testified that it was very dark. As plaintiff’s husband held the door open, the plaintiff stepped down onto the concrete stoop and then fell and was injured.

One of the main issues in this case was whether the defendants violated any duty owed to the plaintiffs. The applicable standard of care is composed of elements based upon the owner’s operation and control of the premises and the Building Code of the City of Chicago, especially certain requirements for public safety. It is plaintiffs’ contention that the jury was improperly instructed resulting in a conflict on the applicable standard of care.

The court gave plaintiffs’ Instruction No. 15, an Illinois Pattern Instruction (IPI) approved instruction (IPI 120.06), which reads as follows: “The owner of property owed the plaintiffs the duty to exercise ordinary care to keep the property reasonably safe for use by the plaintiffs.”

The court also gave defendants’ Instruction No. 8, which was not an IPI Instruction. This instruction stated that:

Owners are not insurers of the personal safety of the plaintiffs, but they are required to exercise ordinary care to make the premises as reasonably safe as may be consistent with the practical operation and maintenance of the premises.

There was a conference on instructions. There is a disagreement between counsel as to whether the plaintiffs had objected to the giving of defendants’ Instruction No. 8, but we have carefully examined the record on this question and are satisfied that the court gave this instruction over the objection of the plaintiffs’ attorney.

Supreme Court Rule 239(a) (formerly Supreme Court Rule 25-1) requires the use of IPI Instructions on a particular point unless the court determines that the IPI Instruction does not accurately state the law. The defendants argue that there is no inconsistency between defendants’ Instruction No. 8 and plaintiffs’ Instruction No. 15 in that “they say the same thing.” In fact, the defendants argue that the instruction they offered, as modified by the court, is more favorable to plaintiffs than the IPI Instruction. We disagree.

It is only when IPI does not contain a proper instruction on a subject that the court may give another instruction on the subject (Supreme Court Rule 239). Here IPI contained a proper instruction on the question of standard of care. It is intelligible, clear, definite, concise, brief, unslanted and accurate. The court, however, also gave Instruction No. 8 on the standard of care. This instruction was partial and argumentative and violated all of the principles laid down by the committee that prepared the Illinois Pattern Instructions. Instruction No. 8 erroneously stated a different standard of care. An instruction erroneously defining the standard of care to be applied by the jury in a personal injury case constitutes reversible error. Cooper v. Cox, 31 Ill App2d 51, 57, 175 NE2d 651.

Plaintiffs also contend that the court improperly refused to give other instructions that were tendered. Upon retrial these matters should be reconsidered in the light of the evidence. Approved IPI Instructions should be used where applicable unless the court determines that the particular instructions do not accurately state the law.

For the reasons stated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ADESKO and MURPHY, JJ., concur.