author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leonard Keelen, Defendant-Appellant.
    Gen. No. 52,755.
    First District, Second Division.
    October 13, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, James R. Bronner, James Haddad, and William Martin, Northwestern University Law School, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Arthur Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of possession of narcotics and was sentenced to a term of five years to eight years in the penitentiary. He appeals.

Defendant filed a pretrial motion to suppress certain evidence seized by police officers in a search of premises occupied by him without first having obtained a search warrant. At the hearing on the motion, defendant was called as a witness and testified that on April 18, 1967, he was in his girlfriend’s apartment on the south side of Chicago from 12:00 a. m., until 5:30 a. m., in the company of his girlfriend and her two teen-aged children. At approximately 4:30 a. m., two Chicago police officers knocked down the door to the apartment with a sledgehammer, entered the apartment with guns drawn, searched the apartment, and remained there approximately two hours. Defendant testified that the officers neither announced their office beforehand, nor placed him under arrest upon entering the apartment. The officers did not show the defendant a search warrant.

Immediately upon entering the apartment, one of the officers reached into the pocket of a coat hanging near the door belonging to one of the teen-agers and recovered a ten-dollar bill. One of the officers accused the defendant of selling narcotics, which the defendant stated he denied. He further testified that just prior to the officers’ entry into the apartment a man, unknown to defendant, knocked on the apartment door and spoke to defendant, but defendant’s girlfriend said not to let him in.

Police Officer Kenneth Burt testified at the hearing on the motion to suppress and stated that shortly after 1:00 a. m., on April 18, 1967, he and his partner, Officer Lawrence, had a conversation with a police informer named Ted Hall at police headquarters; the officer testified that he had used the informer on several occasions in the past, which had led to both arrests and convictions of narcotics sellers. Hall told the officers that he had been purchasing narcotics from the defendant almost every day for the preceding week or two, and that on the night in question he was going to the apartment to make another purchase. A strip search was made of the informer, which revealed neither narcotics nor money, and the informer was given a prerecorded ten-dollar bill and five prerecorded one-dollar bills with which to effect the purchase.

The two officers and Hall then proceeded to the vicinity of the apartment building in a police car. The officers remained secreted outside the building while the informant entered the building, where he remained for a short while. As Hall exited the building, he met the defendant in the doorway, and the two walked a short way up the sidewalk. Hall immediately returned to the officers and gave them a tinfoil packet, and the three returned to the police vehicle, where Hall returned the five prerecorded one-dollar bills to the officers. The contents of the packet were “field-tested,” the results of which revealed the presence of heroin. Hall informed the officers that he noticed the defendant leaving the scene in a black automobile, but on a subsequent search of the area the officers failed to locate the automobile or the defendant. The officer testified that due to poor lighting and the positioning of defendant and Hall, neither he nor his partner observed the actual transfer of the packet.

The officers and Hall returned to police headquarters where the officers made out a report and prerecorded more funds. The additional prerecorded funds were given to Hall, and the three men returned to the apartment building in an effort to effect a second purchase from the defendant, because the defendant was not apprehended after the first purchase. On this occasion, all three men entered the building and, while the two officers stood in an out-of-the-way place in the hallway down from the apartment, Hall knocked on the apartment door. Officer Burt testified that he heard muffled voices coming from the apartment, and that Hall thereafter returned to the officers, stating that the defendant told him that he had no more narcotics to sell that night, but to see him the next day. The officers approached the apartment door, knocked, and receiving no response, knocked down the door with a sledgehammer. Officer Burt testified that he announced their office and informed the defendant of the charge. He was seated on a bed near a partition where a coat was hanging. The apartment was searched and Officer Lawrence recovered the prerecorded ten-dollar bill from the coat hanging near the door. The officer testified that the search, which took about twenty minutes, revealed nothing other than the ten-dollar bill.

The motion to suppress the ten-dollar bill as evidence was denied, and the case proceeded to trial the following day.

The testimony of Ted Hall at trial was substantially the same as that given by Officer Burt at the hearing on the motion to suppress. In addition, Hall testified that when he entered the apartment building the first time that night, he rang the bell to the apartment where defendant was supposed to have been, but received no answer. Upon exiting the building he saw the defendant at the doorway, and the two men then walked up the street where the defendant gave him a packet of narcotics in return for the prerecorded ten-dollar bill. After making the purchase and returning with the two officers to police headquarters, the two officers and Hall returned to the apartment to attempt another sale. Hall testified that on the second occasion he knocked on the apartment door, that defendant answered the knock, and that in response to a request by Hall for more narcotics, defendant answered that he had none to sell and that Hall should see him on the street the following day. Hall testified that he conversed with the officers and then left the building and went to the police car. The officers later brought defendant out to the car and asked Hall if defendant “was the same guy,” to which Hall responded in the affirmative.

After the testimony of Hall was concluded, the People requested that the defendant stipulate, for the purpose of the trial, to the evidence that had been testified to by Officer Burt at the hearing on the motion to suppress the previous day. The defendant objected, and the court overruled the objection and permitted the officer’s testimony of the previous day to stand, but allowed the defendant to cross-examine the officer on any matter which was not brought out on the cross-examination of the officer the previous day.

The People also called Officer Lawrence as a witness, whose testimony substantially corroborated that given by Officer Burt and Ted Hall.

The evidence for the defendant consisted of the testimony of the defendant himself, his girlfriend and the two teen-aged children. Defendant denied selling narcotics to Hall, and stated that he saw Hall for the first time that night when Hall knocked on his door immediately prior to the entry by the police. The balance of the evidence related to the positioning of the coat in which the ten-dollar bill was found in relation to the doorway, and the absence of the defendant from Hall’s presence for several seconds after Hall had knocked on the apartment door and sought to effect a purchase the second time.

Defendant first contends that the trial court erred in denying his motion to suppress since there had been no warrant issued for the search of defendant or the apartment, and because the police officers lacked probable cause to arrest the defendant; that, in any event, no arrest was, in fact, made before the search was effected; that, the officers did not enter the apartment for the purpose of arresting the defendant; that no exigent circumstances existed which could justify the officers’ immediate and unannounced entry into the apartment without a warrant; and that the scope of the search made of the apartment was too broad.

The indictment in this matter charged the defendant with the unlawful sale of narcotics, but the trial court found the defendant guilty of the lesser included charge of possession. The admission of the ten-dollar bill into evidence consequently worked no prejudice against defendant, since the bill related solely to the sale of the narcotics, and not to the possession of the narcotics, which latter offense was proved by the testimony of Hall, as corroborated by the testimony of the officers.

In the light of the events which transpired prior to the entry by the officers into the apartment, the officers had probable cause to arrest the defendant for the sale of narcotics to Hall. Hall had a conversation with the officers at police headquarters and told them that he was going to purchase narcotics from defendant that night. Officer Burt had successfully used Hall in the past. Hall was thoroughly strip searched and was given prerecorded funds with which to effect the purchase. The two officers and Hall then proceeded to an apartment building where defendant was to be located, and Hall entered the building, while the officers stationed themselves out of sight outside the building. Hall emerged from the building and met the defendant on the doorstep. The defendant and Hall then walked a short way up the sidewalk, whereupon Hall returned immediately to the officers, giving them a tinfoil packet and a portion of the prerecorded funds and stating to them that he had made the purchase.

After their return to the apartment, anticipating a second sale because the defendant was not apprehended after the first sale, the informer was told by the defendant that he had no more narcotics to sell that night, which is what the informer told the officers. The officers then knocked on the defendant’s door and receiving no response, knocked the door down. The officers announced their office and informed the defendant what he was charged with. The record shows that the officers had probable cause to arrest the defendant for the sale of narcotics, and to conduct a search incident to that arrest. Ill Rev Stats 1967, c 38, par 22-25; People v. Battle and Cunningham, 116 Ill App2d 375, 254 NE2d 90. The fact that Hall was not called as a witness at the hearing on the motion to suppress is of no consequence.

The case of People v. Wolfe, 73 Ill App2d 274, 219 NE2d 634, cited by defendant in support of his position that Hall should have been called as a witness at the hearing on the motion is not in point. In the Wolfe case, the informer did not testify at the hearing on the motion, although requested by the defense. The court on review stated that the police officer’s testimony at trial contradicted his testimony at the hearing on the motion, rendering his testimony incredible and thereby failing to establish facts showing probable cause to effect an arrest; the court held that the testimony of the informer was, therefore, necessary. Here, the testimony of the officer independently established probable cause to effect the arrest of the defendant, validating the subsequent search made incident to that arrest.

As to the argument that no arrest was made prior to the search, Officer Burt testified that immediately after he and Officer Lawrence entered the apartment they announced their office and informed defendant what he was charged with. Defendant also testified that the officers had their guns drawn when they entered the apartment. This was a matter of credibility for the trier of fact. The testimony of Officer Burt that the officers entered the apartment hoping to find the defendant “dirty” (in possession of narcotics) does not necessarily mean that they entered solely for that purpose, without the intention to effect an arrest; the officer also testified that they entered the apartment hoping to find the prerecorded ten-dollar bill. An arrest was effected prior to the search.

As to whether the circumstances were such as to warrant the type of entry made by the police, the evidence before the trier of fact was that immediately before the entry by the police, the informer had spoken to the defendant in the apartment, that the police then knocked on the apartment door, and that because no response was immediately forthcoming, the door was knocked down. The trier of fact could reasonably conclude from this evidence that the officers believed that the defendant, when the second knock came, became suspicious, was attempting to flee, to secrete evidence, or the like, and that they found it necessary to gain entrance immediately. Ill Rev Stats 1967, c 38, par 107-5(d). (People v. Barbee, 35 Ill2d 407, 220 NE2d 401.)

In the case of People v. Bussie, 41 Ill2d 323, 243 NE2d 196, cited by defendant, the police officers were shown, by informers, an apartment where a sale of narcotics had theretofore taken place. The officers returned to the police station and then went back to the apartment, without a search warrant. They knocked on the door, and after receiving no response from the inside, they broke the door down. Finding no one home, the apartment was searched. The search was held invalid because the purpose of the entry into the apartment was not to effect an arrest, but to conduct a search. Here, the officers entered the apartment not only in hopes of finding the defendant in possession of narcotics, but also to locate the prerecorded bill and to effect an arrest of defendant for the sale made prior thereto, which in fact was accomplished.

With regard to the question of whether the scope of the search was too broad so as to render it unconstitutional, the ten-dollar bill was found in a coat pocket near where defendant was found seated when the officers first entered the room; the coat and the bill were “within his immediate control,” in conformity to the requirements set out in Chimel v. California, 395 US 752, 763, cited by defendant. Although the officers searched the entire apartment, consisting of two small rooms, nothing else was seized, nor introduced as evidence against defendant.

Defendant lastly contends that it was error to allow Officer Burt’s testimony at the hearing on the motion to suppress to stand as his testimony in the case in chief. We disagree.

This was a bench trial. The trial judge stated that he heard the officer’s testimony on the motion to suppress just the day before, and that he did not wish the officer to restate the material. He permitted the defendant to cross-examine the officer on matters which were not covered in the defendant’s extensive cross-examination on the previous day; defense counsel spent some fifty pages in the record on the cross-examination of the officer at the hearing on the motion, and spent some eighty pages of the record on cross-examination as to Officer Burt’s testimony in the case in chief. We do not find any abuse of the trial court’s discretion in allowing the testimony to stand for consideration in deciding the case in chief.

The cases of People v. Crump, 5 Ill2d 251, 125 NE2d 615; People v. Hoffman, 379 Ill 318, 40 NE2d 515; and People v. Cox, 87 Ill App2d 243, 230 NE2d 900; cited by defendant are inapposite on their facts from the case at bar. In the Crump case, a witness was called before the court, out of the presence of the jury, to give testimony on an issue; it was held error for the prosecuting attorney to allude to that testimony in his argument to the jury. In the Hoffman case, no witnesses were sworn and all the “evidence” given against the defendant was hearsay. Likewise in the Cox case, it was held error to exclude a witness on the ground of incompetency, based solely upon the record of a prior trial.

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    Thomas Perfect, Plaintiff-Appellee, v. Charles Kaley, Defendant-Appellant.
    Gen. No. 52,758.
    First District, Third Division.
    October 1, 1970.

      Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellant.
    Philip E. Howard, of Chicago (William J. Harte, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff brought this action to recover for personal injuries sustained when his truck was struck by defendant’s automobile. A jury returned a verdict in favor of plaintiff in the amount of $37,500, and judgment was entered thereon. On appeal, defendant contends that the trial court committed reversible error in giving a certain instruction to the jury, and also that plaintiff’s closing argument was so improper and prejudicial as to require reversal.

Because of the nature of the arguments on appeal, we consider it necessary to refer only briefly to the facts of the accident. The collision occurred on July 5, 1961, at an intersection in Chicago. Defendant testified at trial that he stepped on the accelerator instead of the brake, and as a result, his automobile went through a red light and struck plaintiff’s truck. We shall discuss plaintiff’s injuries, his physical condition and the pertinent medical testimony in more detail.

Plaintiff’s back was injured in 1956, but he testified that it returned to normal in about two months. Plaintiff again injured his back at work in January 1961, some six months before the accident in question. A laminectomy was performed on him as a result of that injury. Plaintiff testified that he returned to work after the operation in May 1961, and a month later was experiencing no difficulties with his back.

After the collision in question, plaintiff testified that he was thrown from the driver’s seat and onto the floor. When he arose, his neck and head were sore and painful. A clinic doctor could find nothing wrong with him, but referred him to the doctors who had performed the laminectomy, and plaintiff was hospitalized. Plaintiff continued to suffer pain, was advised not to drive, and returned to work as a dispatcher in December 1961. He resumed driving a truck in 1964, but still had pain in his back and leg at the time of trial.

Doctor Francisco Sarmiento testified for plaintiff that he and Doctor Dekowski, a neurosurgeon, had performed the laminectomy on plaintiff in February 1961. Prior to the operation, plaintiff walked with a limp because certain reflexes in his left leg were missing. After the operation, plaintiff’s reflexes returned; he walked without a limp and had no complaints. Doctor Sarmiento next treated plaintiff on July 7, 1961, a few days after the accident in question. His examination revealed that one of plaintiff’s reflexes in the left leg again was missing. He last treated plaintiff in September, 1961.

Doctor Allan Hirschtick testified in behalf of plaintiff that he examined him in 1965 and again shortly before trial. Plaintiff had tenderness in his lower back along with a restriction in bending. His left ankle reflex was missing; he had atrophy of the left leg; and there was a fibrillary twitching in the calf muscles. Doctor Hirschtick also testified that in his opinion there was a causal connection between plaintiff’s physical condition at the time of trial and the injuries arising out of the instant accident. He further testified that plaintiff would require additional surgery.

Doctor Joseph Cascino testified as an expert witness for defendant. He had not examined plaintiff, but in his opinion there was no causal connection between plaintiff’s physical condition and the instant accident. However, he believed that it was possible that the accident aggravated the original injury.

Doctor Steven Dekowski testified in behalf of defendant that he had examined plaintiff and had performed the laminectomy on him. He believed that plaintiff’s present physical condition may have been caused by the instant accident; it may have been a recurrence of the original injury; or it may have resulted from a combination of the original injury and this accident. Doctor Dekowski also testified that when there is a complete recovery from the surgery, as in this case, a recurrence of ill-being is ordinarily caused by new trauma.

Defendant’s first contention is that the trial court committed reversible error in giving the following instruction to the jury:

“If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.”

The instruction given was the first paragraph of IPI 12.05 (Revised). The instruction is found in the section of IPI covering “Negligence-Risk-Misconduct-Proximate Cause.” The specific subsection of IPI in which the instruction is found is entitled “Specific Factors Affecting Negligence and Contributory Negligence.”

Defendant maintains that the instruction may be given only when there is a possible third party cause of an occurrence and argues that it does not apply to the existence of a prior condition of ill-being or to the prior physical condition of the plaintiff. Defendant also argues that the facts in the case did not support the giving of the instruction, and that the instruction was confusing to the jury.

We find that the trial court did not err in giving the instruction relating to some other cause of plaintiff’s injury. In view of the evidence presented and the contentions advanced by the parties at trial, this instruction was proper. Defendant denied liability, but testified that he drove through a red light and struck plaintiff’s truck. Thus, the primary issue at trial was not liability, but whether the physical condition of plaintiff subsequent to the accident of July 5, 1961, was attributable to that accident. It was plaintiff’s contention that all of his physical problems after that date were caused by the instant accident. The defense at trial was predicated entirely on the theory that plaintiff’s condition of ill-being resulted from the prior injuries and surgery. Consequently, it was proper to give an instruction to the jury which informed them that if they decided that defendant was negligent and further found the negligence to have been the proximate cause of plaintiff’s injury, then it would not be a defense that something else may also have been a cause of the injury. The instruction accurately informed the jury that where the result of an accident was to activate an injury to which an injured person was predisposed, the defendant was liable for the entire damages which ensued. Where an injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it were the sole cause. Fisher v. Chicago, R. I. & P. Ry. Co., 290 Ill 49, 124 NE 831 (1919). And in Romine v. City of Watseka, 341 Ill App 370, 91 NE2d 76 (1950), at p 378, the court stated that “the cause of an injury is that which produces it. A condition is a situation which provides an opportunity for the accident to happen in the particular manner it did.” Clearly, in the case at bar, a bona fide issue as to the causation of injury existed, and, in fact, was the primary issue at trial. The trial court did not err in giving the instruction.

Defendant also argues that there was no evidence to support the instruction. We do not agree. Plaintiff and Doctor Sarmiento testified that he had made a complete recovery from the previous injuries and surgery. Doctor Dekowski testifying for defendant also stated that plaintiff had recovered from the laminectomy. There was evidence presented by plaintiff that there was a causal connection between his physical condition and the accident, while defendant presented the testimony of Doctor Cascino that there was no connection. Obviously, there was evidence presented by both sides as to the cause of plaintiff’s injuries.

We further find that the instruction in question could not have been confusing to the jury. The jury was instructed properly on damages. The court gave the damages instruction from IPI directing the jury to compensate plaintiff only for damages proved by the evidence to have resulted from defendant’s negligence, and also gave IPI Instruction 30.03 relating to the aggravation of a preexisting condition. The jury could not have confused the instruction relating to cause of injury and the instructions dealing with damages.

Defendant next contends that plaintiff’s closing argument was so improper and prejudicial as to require reversal. In support of this contention, defendant cites four remarks made by counsel for plaintiff during closing argument.

Defendant first charges as error remarks made by plaintiff concerning the instruction discussed above. Since the giving of the instruction was proper, it was permissible for plaintiff to discuss it in closing argument.

Defendant also maintains that plaintiff argued that defendant declared open season on Purple Heart veterans, thus attempting to equate plaintiff with such status and at the same time accusing defendant of heartlessness.

During closing argument, defendant argued that plaintiff was not entitled to anything because of his prior injury. In rebuttal, plaintiff stated as follows:

“Just think of the fellows that served in the services, and came back from the wars with a disability. In effect, then, if you follow Mr. Hourigan, as the Government says, they give them a Purple Heart for having sustained the injuries, but they say that from now on everyone else has open season on them because whoever else hurts them---”

Defendant objected; the trial court overruled the objection, holding that the statement was merely an analogy. We agree with the ruling of the trial court. The remark did not accuse defendant of heartlessness nor did it attempt to place plaintiff in the position of a wounded veteran. Plaintiff was responding to defendant’s argument by contending by means of analogy that defendant had to accept plaintiff as he found him, and could not escape responsibility by showing plaintiff’s susceptibility to injury.

Defendant also maintains that it was improper for plaintiff’s counsel during rebuttal argument to state that plaintiff had to hold two jobs. The evidence had disclosed that plaintiff had worked a separate weekend job for about six weeks while employed as a truck dispatcher. In his closing argument, defendant’s counsel asked the jury if they needed two jobs and pointed out that plaintiff had two jobs at one time. We are not persuaded that plaintiff erred in replying to that argument by stating that plaintiff had to hold two jobs.

Defendant finally contends that reversible error occurred when counsél for plaintiff stated during rebuttal argument that defense counsel had accused him of lying. An examination of the record reveals that a substantial portion of defendant’s closing argument was spent in attacking the credibility of everyone connected with plaintiff’s case. Thus, defendant cannot complain when plaintiff's counsel mentioned in rebuttal that the defense had accused him of lying.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE LYONS

text:
    Swift & Company, a Corporation, Plaintiff-Appellant, v. The London & Edinburgh Insurance Company, Limited, Defendant-Appellee.
    Gen. No. 52,795.
    First District, Second Division.
    September 29, 1970.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann and Paul L. Pawlowski, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller and R. R. McMahan, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The parties to this litigation are the insured and the insurer, respectively, under a products liability insurance contract. In a declaratory judgment action brought by the insured against its insurer, the trial court entered a judgment order finding that the London & Edinburgh Insurance Company, Ltd., the insurer, had no duty to defend an action for personal injuries commenced against Swift & Company, its insured. Swift & Company appeals, urging that coverage was provided by its products liability policy with the defendant and hence, the trial court erred in holding that the insurer had no duty to defend.

This case was submitted to the trial court on the basis of the pleadings, a written stipulation of facts, and the following five exhibits: (1) the products liability policy between the parties which insured against both bodily injury and property damage; (2) the complaint for personal injuries filed against Swift & Company; (3) Swift’s operations insurance policy with another insurer; (4) Swift’s written contract with A. Cramer and Company; and (5) the defendant insurer’s letter to Swift disclaiming coverage under its products liability policy and refusing to defend the personal injury action.

The pleadings and written stipulation indicate that while its products liability policy with London & Edinburgh was in full force and effect, Swift & Company manufactured calcium stearate, a chemical compound, in bulk, at its Chicago soap plant and delivered it to A. Cramer Corporation for further processing. This product was delivered to Cramer only after it had hardened, cooled, broken into lumps, and been packaged by Swift in drums, boxes, or other containers. Although Cramer was given temporary custody of the calcium stearate, title was retained by Swift. In effect, the product was bailed to Cramer for the mutual benefit of both parties.

The services of A. Cramer Corporation were needed because Swift’s milling facilities were not equipped to grind calcium stearate to the mesh or fineness required for sale to Swift’s customers. A written contract existed between Swift and A. Cramer Corporation under the terms of which Cramer was to grind and package the calcium stearate, for a certain price per pound, and either ship the ground calcium stearate directly to Swift’s customers, as directed by Swift, or return it to Swift to be inventoried and eventually sold by Swift from its Chicago plant. During the three-year period covered by the London & Edinburgh policy, Swift sold close to -two million pounds of calcium stearate to its customers, all of which was ground by Cramer Corporation, except for two thousand pounds shipped in bulk by Swift to its United Kingdom subsidiary. Calcium stearate in its ground form is used in the manufacture of dental preparations, cement, and salt.

While a batch of calcium stearate was being ground on Cramer’s premises, an explosion and fire occurred injuring two of Cramer’s employees who were participating in the grinding process at the time. These employees filed a complaint against Swift & Company in the Circuit Court of Cook County charging Swift with many specific acts of negligence and alleging that the calcium stearate was the cause of the explosion and fire. The calcium stearate being ground at the time of the explosion and fire was to be shipped by A. Cramer Corporation directly to one of Swift’s customers.

Swift & Company tendered defense of this suit to London & Edinburgh, who disclaimed coverage and refused to defend on the ground that the accident was not a products liability risk in that, at the time of the explosion and fire, the calcium stearate was a product being manufactured by Swift and hence was not — within the meaning of the words used in the insuring clause — “products or merchandise heretofore or hereafter manufactured, sold or distributed” by Swift & Company. Swift carried operations or public liability insurance with another insurer at the time of this incident.

The insurer’s duty to defend in this case depends, of course, upon whether or not the personal injuries alleged in the complaint filed by the two employees of Cramer Corporation were caused by an accident falling within the coverage of the products liability policy. That policy’s insuring clause, which is at issue in this case, provides that London & Edinburgh is:

“To Indemnify the named Assured against loss by reason of the liability imposed by law upon the Assured:—
“(a) on account of bodily injuries, . . . caused, or alleged to have been caused, by accident to any person or persons, . . . and damages, by whomsoever sustained, consequent upon such injuries, . . . sustained during the period of this Insurance arising out of the possession, consumption, employment, use or handling, . . . elsewhere than upon the premises of the Assured but within the United States of America or the Dominion of Canada, of the products or merchandise heretofore or hereafter manufactured, sold or distributed by the Assured.”

In this appeal Swift & Company points out that the term “manufactured” is not defined in the products liability policy and contends that coverage is provided for three alternative reasons: (1) when Swift shipped the bulk calcium stearate to A. Cramer Corporation for further processing which was only to change the form of the stearate and not its basic properties, Swift had completed its manufacturing operations so that, as to Swift, this bulk calcium stearate was a “manufactured product” within the wording of the policy; (2) the use of the words “products . . . hereafter manufactured . . .” in the policy’s insuring clause is said to include those products of Swift which are in existence after the policy’s inception and which are still in the process of being manufactured so that the accident in this case, alleged to have occurred when the calcium stearate was being manufactured, is within the coverage of this particular products liability policy; and (3) since the policy’s insuring clause extends coverage to “products . . . hereafter manufactured, distributed or sold” by Swift and the policy does not define “distributed” nor requires that the product be in a completed form before it can be distributed, Swift had, in fact, distributed the calcium stearate to A. Cramer Corporation at the time of the accident and coverage was provided by the products liability policy.

The insurer contends that: (1) since products liability insurance is intended to protect a manufacturer from liability to third persons after its finished products or manufactured products have entered the channels of trade, whereas the accident in this case occurred when the product was being manufactured, which risk is normally covered by public liability or operations insurance, no coverage is provided by the products liability policy; (2) when the words “products . . . hereafter manufactured . . are considered in the context of the entire sentence in the insuring clause, they are not the equivalent of “products being manufactured” which Swift & Company urges, but rather, their obvious purpose is to provide protection to the insured for all liability arising out of its marketed products no matter when the finished product or manufactured product was made — whether before or after the inception date of the policy; and (3) within the normal and usual context of a products liability policy, the term “distributed” is meant to apply only when a product has been put into the channels of commerce, which did not occur here when Swift & Company did not sell its bulk calcium stearate to A. Cramer Corporation but only delivered it there for grinding as a continuation of Swift’s manufacturing operation.

This case is unique in that it does not involve the typical instance of an insurer under a comprehensive public liability or operations policy seeking to avoid coverage due to a “products liability — completed operations” exclusion in the policy (see the cases collected in the annotation at 54 ALR2d 518 et seq.), but rather, we are called upon to consider, not an exclusion in an insurance policy, but the insuring clause itself. Both parties agree that there are no cases in Illinois dealing with the term “manufactured” as employed in a products liability insurance policy. Our independent research has disclosed none, either in this jurisdiction or any other jurisdiction.

The insured asserts that the insuring clause does not require that a product be finished or have completed all possible stages of the manufacturing process before it is deemed “manufactured” or before there is coverage, and if the insurer intended this, it could have so provided by defining the term “manufactured product” which it did not do. It is urged that any ambiguity in this contract should be construed liberally in favor of the insured and against the insurer, citing Pierce v. Standard Accident Ins. Co., 70 Ill App2d 224, 216 NE2d 818 (1966); Sally Chain Stores, Inc. v. Ace Bonded Carriers, Inc., 307 Ill App 644, 30 NE2d 966 (1940); and Ziolkowski v. Continental Cas. Co., 365 Ill 594, 7 NE2d 451 (1937).

In support of its position that coverage was provided since the bulk calcium stearate was a “manufactured product,” as far as Swift & Company was concerned, when it was delivered to Cramer Company because the insured had completed its manufacturing operations, Swift & Company relies upon cases having to do with the definition of the noun “a manufacture” or “manufacturing” in taxation or revenue cases (Tide Water Oil Co. v. United States, 171 US 210 (1898); Dolese & Shepard Co. v. O’Connell, 257 Ill 43, 100 NE 235 (1912); Middletown Iron & Steel Co. v. Evatt, 139 Ohio St 113, 38 NE2d 585 (1941); and Commonwealth v. Peerless Paper Specialty, 344 Pa 283, 25 A2d 323 (1942)) and other revenue-producing cases holding that the term “manufactured product” requires a change in essential properties and not a change in form only (Anheuser-Busch Ass’n v. United States, 207 US 556 (1908); Commonwealth v. Weiland Packing Co., 292 Pa 447, 141 A 148 (1928); and Rieck-McJunkin Dairy Co. v. School Dist. of Pittsburgh, 362 Pa 13, 66 A2d 295 (1949)). We do not find these cited cases to be helpful by analogy. What we are concerned with in the instant case is whether or not the risk insured against by a products liability insurance policy extends to the incident which occurred here. It is undisputed that the accident arose out of the possession, use or handling of the calcium stearate and that it occurred elsewhere than on Swift’s premises.

However, we are of the opinion that the parties to a products liability insurance policy or contract do not reasonably intend to have such insurance cover the accident which occurred here where the product must still be regarded as work in process and has not yet become finished goods or entered the channels of trade or stream of commerce. In our opinion, the controlling factor is not that Swift & Company regards bulk calcium stearate as a “manufactured product” because it is done with it, but that it was not yet a finished product from the standpoint of the ultimate user nor had it yet entered the channels of trade or stream of commerce when the injury-producing incident arose. Indeed, the written stipulation of facts indicates that bulk calcium stearate was sold only to Swift’s foreign subsidiary and such sales were negligible. Swift’s market was for ground calcium stearate only. It was being ground at the time of the accident preparatory to being placed in the stream of commerce. In our opinion, it was still work in process inventory and was not yet finished goods to which a products liability risk would reasonably attach. Additionally, the accident occurred before the product had been placed in the channels of trade.

The leading cases imposing liability upon the manufacturer on negligence or strict liability theories for defective products (MacPherson v. Buick Motor Co., 217 NY 382, 111 NE 1050 (1916); Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal2d 453, 150 P2d 436 (1944); Henningsen v. Bloomfield Motors, Inc., 32 NJ 358, 161 A2d (1960); Greenman v. Yuba Power Products, Inc., 59 Cal2d 57, 377 P2d 897 (1962); and Suvada v. White Motor Co., 51 Ill App2d 318, 201 NE2d 313 (1964); affd 32 Ill2d 612, 210 NE2d 182 (1965)) all had to do with injuries occurring after the defective finished product had entered the channels of trade. After closely examining the policy in this case, we are of the opinion that it covered only those risks arising to the manufacturer after its product had become a finished product in regard to the ultimate user of the product involved in the accident or after the finished good had been placed in the stream of commerce, neither of which had occurred in the case at bar when the injury-producing accident arose.

We find nothing ambiguous in the words “products or merchandise heretofore or hereafter manufactured. . . .” The plain and unambiguous meaning of these words in the context of a products liability policy is that the parties intended by this language to protect the manufacturer against personal injury and/or property damage risks arising from a defective finished product either before or after it had entered the channels of trade. To adopt the insured’s first contention would be to ignore the underwriting distinction between a public liability or operations risk and a products liability risk both of which confront a manufacturer. In the treatise on insurance law, 7A Appleman, Insurance Law & Practice, § 4508, the author recognizes this distinction noting that the former risk has to do with an injury occurring to a nonemployee when a manufacturing activity is in progress and prior to its completion whereas the latter risk concerns itself with completed operations as liability arises from a defect in the merchandise. Insurance premiums charged for protection against each respective risk differ of course. Both Swift & Company and Cramer Company had an insurable interest in the calcium stearate when it was being ground on Cramer’s premises since each would enjoy a benefit from the continued existence of the property or would suffer a pecuniary loss from its destruction. Beddow v. Hicks, 303 Ill App 247, 258, 25 NE2d 93, 98 (1940). Swift & Company then could have procured insurance to protect its insurable interest, but in our opinion products liability insurance was not the proper insurance to protect against the type of risk encountered in this case.

Both in 44 Am Jur2d, Insurance, § 1431, and in 1 Couch on Insurance 2d, § 1.85, it is recognized that products liability insurance policies are specifically designed to protect the manufacturer of goods against loss by reason of injury to the person or property of others caused by the use of its products. (Emphasis supplied.) It would be an injustice to the insurer to interpret into a policy coverage which the insured has not bought and for which the insurer has not been paid. United States Sanitary Specialties Corp. v. Globe Indemnity Co., 204 F2d 774, 777 (CA 7th Cir 1953).

In Liberty Mut. Ins. Co. v. Hercules Powder Co., 224 F2d 293 (CA 3rd Cir 1955), the court recognized that the very basis of imposing liability upon a manufacturer to the ultimate user for any defective products was to place legal responsibility upon the person who sends goods out into the channels of trade for me by others. (Emphasis supplied.) While we recognize that in the cited case the reviewing court held that a products liability exclusion did not apply and that the accident was covered by the insurer’s comprehensive general liability policy because the injury-causing instrumentality (i. e., a squared aluminum tube) was held to be equipment owned by the insured and not a product which it had manufactured whereas in the instant case it is undisputed that the alleged injury-producing instrumentality was a product manufactured by the insured, the cited case is still helpful to us in attempting to delineate the risks which are reasonably within the coverage of a products liability insurance policy. We hold that the policy in the instant case does not cover the accident which is alleged in the personal injury complaint.

The insured’s second and third contentions are answered by the general rules of law, often applied in insurance cases, that if the parties to an insurance contract have used clear and unambiguous language, the words are to be taken in their plain, ordinary and popular sense (Imperial Fire Ins. Co. v. Coos County, 151 US 452, 463 (1894); Bergholm v. Peoria Life Ins. Co., 284 US 489, 492 (1932); Moscov v. Mutual Life Ins. Co., 387 Ill 378, 383-84, 56 NE2d 399, 402 (1944)) and that the rules of construction applied when language employed is ambiguous do not authorize a perversion of language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists or creating a new contract for the parties (Crosse v. Knights of Honor, 254 Ill 80, 86, 98 NE 261, 263 (1912); Zitnik v. Burik, 395 Ill 182, 186-87, 69 NE2d 888, 890 (1946)). In its second contention the insured asserts that the use of the words “products . . . hereafter manufactured . . .” means that the policy includes those products which are in existence after the policy’s inception and which are still in the process of being manufactured at the time of any accident whereas in its third contention, Swift & Company contends that the use of the words “products . . . hereafter . . . distributed” by Swift covers the accident involved in the instant case because the insured had distributed the product to Cramer Corporation for further processing before the explosion occurred.

In our opinion, these unambiguous words — when taken in their plain, ordinary and popular sense — respectively mean only that the policy will provide protection to the manufacturer-insured for all liability arising out of its marketed products whether the finished product was made before or after the policy’s inception date and that the insured would be covered by this policy even if it did not manufacture or sell a finished product but merely distributed it for itself or for some other manufacturer or seller at the time that an accident occurred off of its premises and which arose out of the possession, consumption, employment, use or handling of the finished product. It will be noted that the language in the insuring clause is in the disjunctive.

Furthermore, the act of sending the calcium stearate to Cramer Company for grinding was not a distribution of the product by Swift within the reasonable context of a products liability policy but rather was a continuation of Swift’s manufacturing operation. Work in process inventory, within the context of a products liability insurance policy, cannot be reasonably said to be distributed until it has achieved the status of finished goods.

The judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Michael Knowles, Defendant-Appellant.
    Gen. No. 52,880.
    First District, Third Division.
    October 1, 1970.

      Arthur H. Grant, of Chicago, for defendant-appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, M. Scott Cisney, and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for plaintiff-appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Michael Knowles was found guilty of rape in a non jury trial and sentenced to the penitentiary for a term of five to ten years. In this court he contends that the procedure leading to his identification was improper, that he was not proven guilty beyond a reasonable doubt and that his motion for a new trial or acquittal should not have been denied.

The prosecutrix testified that she was employed as a receptionist in an office in downtown Chicago. After leaving work at 5:00 p. m. on January 18, 1967, and shopping for an hour, she took a train and a State Street bus to her southside home. As she left the bus at 95th and Lafayette Streets about 7:00 p. m., she noticed two men conversing near the rear door. She surmised that one of them — whom she later identified as Knowles— followed her off the bus. She walked west on the south side of 95th Street toward her home which was approximately three blocks from the bus stop. The evening was dark and extremely cold.

As she neared a boarded-up tavern on the southwest corner of 95th and Perry, the attacker approached her from behind, put his hands over her eyes, and then slid them down over her mouth. He told her to drop her shopping bag and to turn around and follow him. She pulled one of his hands from her mouth and he threatened to kill her. She screamed and he placed his hands back over her mouth. She fought with him as he dragged her behind the tavern to the alley off Perry Avenue.

He told her to lie down on the ground. He pushed her coat and dress up and ordered her to remove her underclothing. When she refused, he ripped those garments off. She refused to unzip his trousers and he used one hand for this purpose. She jerked his other hand from her mouth and screamed again. He again placed his hands over her mouth and said, “I am going to kill you for sure now.” He started to choke her and then sexually attacked her.

The prosecutrix estimated that he lay on top of her for about twenty minutes. She described the alley as dark, but illuminated by a small light inside a converted garage that bordered the alley. She stated that she gained a clear view of her assailant’s face. She particularly noticed that he had a gold crown on one of his front teeth, that he smelled strongly of cigarette smoke, and that he wore a black poplin, three-quarter length coat and a round hat with a narrow brim and flat top. Later in the trial, she described the crown on the rapist’s center tooth as white gold.

After the attack, the assailant disappeared down the alley. She went back to 95th Street, picking up her purse on the way. She entered a nearby beauty salon, called her mother and the police. The police took her to a hospital where she was treated for abrasions on her face and legs. A vaginal smear test for the presence of sperm was positive.

On the following day she went to the police station, where she was shown approximately 700 photographs. She also viewed pictures on a movie screen. From these she picked the photograph of Michael Knowles as that of her assailant. She testified that she may have told a police officer that some of the other pictures resembled that of her assailant but that she only identified one. After she identified Knowles’ picture, the police took her to his home, which was about a mile from the scene of the attack. Upon entering the house, she recognized him as her attacker. He opened his mouth at her request and she recognized the crown on one of his teeth. When she repeated this identification in court, the assistant State’s attorney indicated that the tooth in the upper left center of the defendant’s mouth had a silvery plating covering its entire outer area.

Testifying on his own behalf, Knowles said that he left work on Wednesday, January 18, 1967, at 5:00 p. m. and met a friend, Alexander Webb, on a bus at 35th and State Streets. Knowles got off the bus at 93rd and State; he did not know where or when Webb got off. After attempting to visit another friend, Knowles returned home. He said that he had told his mother, with whom he lived, not to cook dinner that night because, since he was paid on Wednesday, he would send out for dinner. He arrived home after 6:00 p. m. and placed an order with a pizza parlor at 6:30 p. m. He and his mother then watched television. At 7:00 p. m. Webb dropped by to visit and left some fifteen or twenty minutes later. The dinners arrived around 7:30 p. m.; Knowles reported that he held a conversation with the delivery man concerning his difficulty in finding the Knowles’ address. He also testified that he did not smoke and that he had never seen the prosecutrix until she came to his house.

The defendant’s mother offered a description of the events of the evening of January 18th substantially similar to that of her son. She also said that he did not smoke.

Webb, the defendant’s friend, testified that he had been to visit a doctor at 29th and Wells Street on January 18, 1967. He left the clinic about 5:00 p. m. and boarded a State Street bus. In his testimony he did not mention meeting Knowles during the bus ride. Webb left the bus at 93rd and State to go to a friend’s house, to buy cigarettes, and to visit the Knowles’ home at 91st and Harvard. He arrived there at 7:00 p. m. and saw that Knowles and his mother were watching television. After a short visit he left at 7:15.

Norman Lee, an employee of a restaurant, testified that on January 18, 1967, at 6:50 p. m. he had an order to deliver pizza to 9161 South Harvard, the Knowles’ address. He left the restaurant at 7:00 p. m. and arrived at the Knowles’ home around 7:30 p. m. He recalled seeing the defendant on that occasion because, after Knowles paid him, they had a conversation regarding Lee’s difficulty in locating the address. Adolph Gary of the Chicago Police Department testified that his check of the records of the restaurant showed that Lee left there with the Knowles’ order about 7:00 p. m. Gary also said that when he went to the Knowles’ home with the prosecutrix the day after the rape the defendant informed him that he was home at the time of the attack and had received an order of pizza about 7:30 p. m.

The defendant contends that the method used by the police to obtain his identification as the perpetrator of the crime violated his Sixth Amendment right to counsel and that, as a result, the in-court identification was so prejudicial as to deprive him of a fair trial.

United States v. Wade, 388 US 218 (1967) and Gilbert v. California, 388 US 263 (1967), hold that a pretrial, post-indictment confrontation for identification purposes is a critical stage of a prosecution at which the accused is entitled to the presence of counsel. In a companion case, Stovall v. Denno, 388 US 293 (1967), the court ruled that the Wade-Gilbert standards, which were pronounced on June 12, 1969, were to be applied prospectively. Since the prosecutrix’ confrontation of Knowles took place in January 1967, the standard to be applied is whether, in light of all of the surrounding circumstances, the viewing of Knowles was so prejudicial as to deprive him of due process of law. People v. White, 116 Ill App2d 180, 253 NE2d 654 (1969).

An in-court identification may be admissible, even when the pretrial identification is not proper, if it is shown by clear and convincing evidence that the courtroom identification had an independent origin arising from an earlier uninfluenced observation of the defendant. People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152 (1969). Although it was dark and the alley but dimly lit, the prosecutrix was able to view Knowles at close range for twenty minutes. During this time his face was close to hers and he attempted to kiss her. She saw his features clearly, including the metal crown on his front tooth. Another factor to be considered is the lapse of time between the alleged act and the contested identification; the prosecutrix identified Knowles the next day. Moreover, before she confronted him in his home she viewed several hundred photographs and some films, and had selected his picture from all those photos. Knowles’ identification as her assailant had an origin independent of the contested identification procedure.

The defendant next contends that the complainant’s identification was insufficient to sustain the conviction and that the alibi testimony raises a reasonable doubt of his guilt.

There can be no dispute as to the rape itself. The complainant’s testimony of the occurrence was corroborated by her immediate telephone calls to her mother and the police, the report of the doctor who performed the vaginal examination, the bruises and scratches on her legs and face and by her torn underclothing which was introduced into evidence.

Her testimony that the defendant was the perpetrator of the crime was clear, convincing and unshaken. The testimony of one witness, if it is positive and the witness credible, is sufficient to sustain a conviction even though that testimony is contradicted. People v. Cox, 22 Ill2d 534, 177 NE2d 211 (1961); People v. Washington, 121 Ill App2d 174, 257 NE2d 190 (1970). The adequacy of an identification raises a question of the credibility of the witnesses which is a matter for determination by the trier of fact, who has a superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor on the stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. DeGrea, 107 Ill App2d 301, 247 NE2d 38 (1969). A reviewing court will not reverse on this ground unless the testimony is so unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Brown, 86 Ill App2d 163, 229 NE2d 922 (1967).

The trial court was not obliged to believe the alibi testimony presented by the defense over the positive identification by the prosecutrix, even though the alibi testimony was given by a greater number of witnesses. People v. Jackson, 95 Ill App2d 28, 237 NE2d 858 (1968). The trial court itself, at the conclusion of the trial, stated:

“From all the testimony offered and based on the Court’s observations of the witnesses, their demean- or and interest, I believe the complaining witness . . . told a truthful story of what happened. . . .
a
“In the opinion of the Court, the alibi testimony of the defense lacked credibility.”

Where the finding of guilt or innocence depends upon the credibility of conflicting testimony, the conclusion of the trial court will not be disturbed. People v. Baldare, 41 Ill App2d 67, 190 NE2d 179 (1963). The identification of the defendant was not so unsatisfactory as to leave a reasonable doubt of his guilt.

Finally, the defendant urges that his motion for a new trial or his motion for acquittal should have been granted. Illinois law provides that a judgment of acquittal may be entered and a defendant discharged when the evidence is insufficient to support a finding of guilty. Ill Rev Stats 1969, c 38, § 115-4(k). Since the State’s evidence established the defendant’s guilt beyond a reasonable doubt, the court was correct in not entering a judgment of acquittal. Furthermore, the defendant’s motion for a new trial did not raise any grounds which would have justified the court’s granting his motion for a new trial.

The defendant argued one or two minor points in his reply brief which were not advanced in his main brief. These will not be considered. Ill Rev Stats 1969, c 110A, par 341 (g).

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Carl D. Nunn (Impleaded), Defendant-Appellant.
    Gen. No. 52,956.
    First District, First Division.
    October 13, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Clare Hillyard and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Robert Kelty, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Carl D. Nunn, seeks reversal of his conviction for the crime of theft from the person. The defendant was found guilty in a bench trial and sentenced to not less than one nor more than three years, while a codefendant, Elton Mackey, was found not guilty by the trial court. On this appeal, the defendant has raised and argued the issue that he was denied a fair trial and effective assistance of counsel because a Chicago Transit Authority police officer advised a prosecution witness not to discuss the case with defendant’s counsel.

The facts will be summarized, since defendant does not challenge the sufficiency of the evidence. On May 17, 1965, the complaining witness, Edith Sider, was walking south on the State Street subway platform at Washington and Madison streets, at approximately 5:15 p. m. A man walking behind her slipped the complaining witness’ purse off her arm and ran past her in a southerly direction, accompanied by another individual. David Rollins was attracted by Mrs. Sider’s screams and looked to see two men running with one individual carrying a purse. Mr. Rollins’ location was a few feet from Mrs. Sider, so the men ran past his location. Two Chicago Transit Authority officers, Donald Dausinas and John Leitner, were on patrol and located to the north of Mrs. Sider when she screamed. They observed the two individuals running in a southerly direction, with one of them carrying the complaining witness’ purse and then throwing the purse upon the “L” tracks while continuing to run from the scene. The officers identified themselves and apprehended the defendant and Elton Mackey. Both C.T.A. officers and Mr. Rollins identified the defendant, Carl D. Nunn, as the person they saw running with Mrs. Sid-er’s purse. The defendant denied taking the purse.

The defendant states that during a trial recess his counsel attempted to interview David Rollins prior to that witness’ testimony. The witness refused to discuss the case because the C.T.A. officer, Dausinas, told him not to talk with defense counsel. The argument was urged that the C.T.A. police officer was an agent of the State, so that his advice to Mr. Rollins was as if the prosecuting attorney had told the witness not to talk with defense counsel. On these grounds, defendant contends a denial of a fair trial and effective assistance of counsel. We are not persuaded by defendant’s argument.

We do not agree that defendant was denied a fair trial and effective assistance of counsel when Dausinas, the C.T.A. police officer advised the State witness Rollins, not to talk to defense counsel during a pretrial interview. In People v. Mitchell, 16 Ill App2d 189, 147 NE2d 883 (1958), the court held:

“While it is not consistent with our standards of procedure for a prosecuting attorney to direct witnesses not to talk with defense counsel, it is clear that these witnesses were not required to discuss their testimony with counsel, nor would a court be required to enter an order directing that such witnesses be produced in court so that counsel could interview the witnesses (People v. Duncan, 261 Ill 339).”

The record also discloses that no attempt was made by defense counsel to interview the witness, either before trial or by requesting leave of court to accomplish that task. The record does reveal that Mr. Rollins was a potential witness from a list of witnesses filed almost a month before trial. The choice of the witness in discussing a case has always been recognized. The fact that another witness advised Mr. Rollins of that fact cannot be urged as error by the defendant. In this regard, we acknowledge the case of United States v. Bowens, 318 F2d 828 (7th Cir 1963), cert den 375 US 911, where a similar issue was decided. There, the defendant argued that a government agent’s advice to a government employed informer that the latter need not discuss the case with defense counsel was a denial of the right to counsel. The court found no prejudice resulting from such advice given to a prosecution witness.

Therefore, we have decided that defendant’s contention is without merit and we affirm the decision of the trial court.

Judgment affirmed.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis Neal Baker, Defendant-Appellant.
    Gen. No. 53,028.
    First District, First Division.
    September 21, 1970.

      Reilly, Sentman & Selby, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert A. Novelle, Anthony Montemurro, and John A. Gibaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

The defendant, Dennis Neal Baker (Impleaded), was charged with conspiracy, escape, robbery and armed robbery in four indictments, Nos. 66-24, 66-931, 66-932 and 66-933. On September 27, 1966, defendant pleaded guilty to three indictments, Nos. 66-931, 66-932 and 66-933. On indictments Nos. 66-24, 66-932 and 66-933, he was sentenced to a term of ten to fifteen years each. On indictment No. 66-931, in which defendant Baker was charged with conspiracy to escape and escape, he was sentenced to a term of from five years to five years and one day. It was ordered that all sentences were to be served concurrently.

On April 22, 1968, this court granted defendant leave to appeal on indictments Nos. 66-931, 66-932 and 66-933. A transcript of the record filed on April 16, 1969, includes a verbatim report of proceedings covering defendant’s change of plea and his sentencing. This report shows that Mr. Brian Crowe, Assistant Public Defender, appeared for defendant Baker, and the following colloquy between the court, defendant and defendant’s counsel took place:

MR. CROWE: “Let the record show that the defendants, Mark Clancy, Edward Schreiber and Dennis Baker are present in open court. At this time on behalf of the defendant Dennis Baker, the defendant will withdraw the plea of not guilty heretofore entered on indictments Nos. 66-931, 932 and 933 and enter a plea of guilty to each of those indictments.”
THE COURT: “Mr. Baker, your counsel states you wish to change your plea of not guilty to a plea of guilty, is that correct?”
THE DEFENDANT BAKER: “Yes, sir.”
THE COURT: “When you plead guilty, you automatically waive any right to a trial by jury, do you realize that ?”
THE DEFENDANT BAKER: “Correct.”

The court then proceeded to inform the defendant of the consequences of his plea of guilty to the various indictments and of the maximum penalties provided by law which might have been imposed upon the acceptance of his plea of ' guilty. After defendant stated to the court that he persisted in his plea of guilty, the record shows the following took place:

THE COURT: “Let the record show that the defendant has been advised of the consequences of his plea to these indictments and after being so advised, persists in his plea. The plea, therefore, will be accepted, and there will be a finding of guilty of robbery, conspiracy to escape, escape and armed robbery, all as set forth in indictments 66-24, 66-933, 932 and 931, and there will be a judgment on the finding.
“Will the State’s Attorney kindly advise the Court as to what the facts are in this case, and thereafter we will have a hearing in aggravation and mitigation.”
(Thereupon a hearing in aggravation and mitigation was had, preceded by a statement of facts by the State’s Attorney.)
THE COURT: “Very well, based upon the plea of guilty to indictment 66-24, 66-931, 932 and 933, and in consideration of the various facts submitted in aggravation and mitigation, the Court hereby sentences the defendant to the State Penitentiary on indictment 933 involving escape for not less than five nor more than five years and one day;
“On indictment 66-24, 66-931 and 932 the defendant is hereby sentenced to the State Penitentiary for a period of not less than ten nor more than fifteen years; that the sentences heretofore imposed shall run concurrently.”

On appeal defendant’s contentions include: 1. (A) The rights of the defendant under the United States Constitution and the Constitution of the State of Illinois to be notified of the crime he is accused of, to face his accusers, and to have a trial by jury, were violated when he was sentenced under Indictment 66-24; (B) The failure of the State to bring indictment 66-24 to trial has denied the defendant the right to a speedy trial. 2. (A) The defendant was denied his right to have a complete transcript and records furnished to him; (B) the failure of the State to provide the transcript and records that were furnished within a reasonable time was a violation of the equal protection and due process clauses of the United States Constitution. 3. The defendant was denied his constitutional right to appeal, have counsel appointed for him, and have a free record and transcript by virtue of the failure of the trial court to inform him of the availability of these rights. 4. (A) The defendant was denied a full hearing in mitigation and aggravation in that only a bare minimum of evidence was presented to the court. The sentence imposed was too hard with regard to the gravity of the offense and of the prior record of the defendant. 5. The defendant was improperly sentenced to a longer term than was a codefendant. 6. The defendant was sentenced, in indictment 66-931 for a longer period than is permitted by the statute. 7. The court erred in amending the sentence in indictment 66-933 from a term of five years to five years and one day to a term of from ten to fifteen years.

Initially considered is defendant’s contention that he was improperly found guilty and sentenced under indictment No. 66-24. Defendant’s authorities on this question are axiomatic, and a discussion of them is not warranted. The State contends that this court can only hear and determine this appeal on the record before it; that no appeal was ever filed on indictment No. 66-24, and the “Leave to Appeal order” is specifically limited to three indictments only, Nos. 66-931, 66-932 and 66-933. The State maintains, “There simply is no record in regards to Indictment 66-24. If the defendant intended to appeal from the last named indictment, he should have so specified, and accordingly, requested and obtained the record.” Authorities cited by the State on this point include 2 ILP, Appeal and Error, § 514, p 464, where it is stated:

“A reviewing court ordinarily will not consider matters not properly made a part of the record, although they otherwise appear. Thus the court will not examine the record in another case but will decide the instant case only on the record filed therein.”

We agree with the State that the Leave to Appeal order of this court did not specify Indictment 66-24, and that 66-24 appears only incidentally in this appeal. The record affirmatively shows that it was plain error for the trial court to include 66-24 in accepting defendant’s plea of guilty to the other three indictments and to find him guilty “as set forth” in indictment 66-24 and to sentence him thereon. We believe that there are sufficient factors in this record involving substantial rights of defendant of which fundamental justice and fairness requires consideration by this court under the powers given to a reviewing court in Supreme Court Rule 615 (a), which provides:

“. . . Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

Therefore, we find that the trial court erroneously included indictment 66-24 in its consideration of indictments Nos. 66-931, 66-932 and 66-933, and that defendant’s conviction and sentence on the charge in 66-24 should be reversed and the matter remanded to the trial court for such further proceedings as warranted.

Considered next are defendant’s contentions which refer only to Nos. 66-931, 932 and 933. Defendant maintains that the delay in providing him with the transcripts and record of this case denied him equal protection and due process of the law. We have examined the record and defendant’s authorities on the question of delay. These cases deal with the right of indigent defendants to a free transcript and record on appeal and not a delay in furnishing them. The State argues that the delay is not alleged to be nor was it due to the fact that defendant was indigent, and that the delay in receiving them here was not a denial of due process and the equal protection of the law. We find no merit to defendant’s contention as applied to the instant case. We think the remarks of this court in People v. Velez, 72 Ill App2d 324, 219 NE2d 675 (1966), apply here. There it is said (p 336):

“A final contention made by the defendant is that the failure of the court reporter to supply him with a transcript of his trial until more than a year after its conclusion constituted a denial of due process of law and of equal protection of the laws. Although this delay, and the circumstances occasioning it, are regrettable, we see no merit to the contention that it should be elevated to the status of a denial of due process or of equal protection, and defendant has cited no authority supporting such a conclusion.”

Considered next is defendant’s contention that his constitutional rights were violated when the trial court did not inform him of his rights to appeal, as well as to have counsel appointed for him and a free transcript and record. The authorities cited by defendant do not apply to the instant case. The State points out that defendant’s plea of guilty in Nos. 66-931, 66-932 and 66-933 and his sentencing took place on September 27, 1966. The State asserts that at that time the defendant had no right to be advised of his right on appeal since he pleaded guilty to the charges.

The State cites Supreme Court Rule 27(6), then in effect, and United States ex rel. Green v. Pate, 411 F2d 884 (1969), interpreting that rule. Rule 27(6) provided :

“In all cases in which the defendant is sentenced to the penitentiary, except cases in which the defendant has been convicted upon a plea of guilty, the trial court shall at the time of imposing sentence advise the defendant of his right to appeal and of his right, if indigent, to be furnished, without cost to him, with a transcript of the proceedings at his trial and with counsel on appeal. . . .” (Emphasis supplied.)

In United States ex rel. Green v. Pate, the court stated in considering Rule 27(6), (p 887):

“What we have said regarding the power of the Illinois Supreme Court to fix by rule the time within which an appeal must be taken is also applicable to the rule which relieves the trial court of the duty of advising the defendant, on a plea of guilty, of his right to appeal. In our view, it was logical and within the power of the court to recognize a distinction between a defendant whose judgment of conviction resulted from a trial and one whose judgment was based upon a plea of guilty. The rule was not directed at any defendant because of his indigence. The court was required to advise a defendant, rich or poor, of his right to appeal where his conviction followed a trial, but was not required to so advise a defendant, rich or poor, who was convicted on his plea of guilty.”

We conclude that due to the fact that defendant pleaded guilty while Rule 27 (6) was in effect, no constitutional right of defendant was violated by the trial judge in not advising defendant of his appeal rights.

Considered next is defendant’s contention that he was denied a full hearing in aggravation and mitigation and in light of this the sentences imposed were excessive. The record shows that there was a hearing in aggravation and mitigation, but the record does not include the details of the hearing. We agree with the State that the burden was on defendant to present to the trial court the mitigating circumstances that he thought should be considered at the hearing, and it was defendant’s further burden to preserve the matters in the record which are relied upon to reverse defendant’s conviction or to reduce his sentences. (People v. Smith, 62 Ill App2d 73, 210 NE2d 574 (1965), and People v. Bush, 95 Ill App2d 57, 238 NE2d 105 (1968).) The sentences imposed were within the statutory limits for the offenses charged. In sentencing, the court’s remarks include a statement that the court had considered “the various facts submitted in aggravation and mitigation.” As there is no affirmative indication in this record that the sentences are excessive, we conclude the sentences should not be reduced.

Defendant next contends that he was improperly sentenced to a longer term than was a codefendant. In support, defendant cites People v. Steg, 69 Ill App2d 188, 215 NE2d 854 (1966), where it is said (p 192):

“Where there is no basis either in the records of the individuals involved or in the nature of the participation of such individuals in the crime which would justify a more severe sentence as to one of equal participants in such criminal venture, a sentence which arbitrarily imposes a greater punishment or penalty upon one or more of the individuals than another should not be approved.”

The State argues that the instant record has no indication of the circumstances surrounding the conviction of the codefendants, i. e., as to whether or not he pleaded guilty or whether he had a trial, what charges he was found guilty on, what his sentences were and what his background or criminal record was. In view of the absence in this record of the foregoing factors, we find no merit in this contention of defendant that he was improperly sentenced. See People v. Rockett, 85 Ill App2d 24, 228 NE2d 219 (1967), and People v. Zimmerman, 57 Ill App2d 190, 206 NE2d 741 (1965).

Finally considered together are defendant’s contentions (6) The defendant was sentenced, in indictment 66-931 for a longer period than is permitted by statute, and (7) The court erred in amending the sentence in indictment 66-933 from a term of five years to five years and one day to a term of ten to fifteen years. These contentions are based on the fact that the trial court, when sentencing the defendant, described 66-933 as involving escape and conspiracy to escape and sentenced defendant to five years to five years and one day, and described 66-931 as involving robbery and sentenced defendant to ten to fifteen years.

Defendant’s contentions on this issue are based on the premise that defendant must be sentenced in open court, and that only clerical errors and not judicial errors may be corrected in his absence. The State maintains that the sentencing error complained of was a mere “misstatement” on the trial judge’s part, and “the confusion here stems from the fact that the Judge stated a wrong indictment number, the one for conspiracy to escape was indictment number 66-931, and not 66-933. This was remedied (out of the presence of defendant) in the official sentencing order whereby on 66-931 a sentence from five years to five years and one day was imposed. On 66-932 and 933, the sentences were from 10 to 15 years.”

The State’s authorities include People v. Barg, 384 Ill 172, 51 NE2d 168 (1943), and People v. Gregory, 77 Ill App2d 188, 222 NE2d 182 (1966). In People v. Barg, the court stated (p 179):

“Since the record of the criminal court must be accepted as it was made, the oral statement of the trial judge made in contradiction of the record does not afford a legitimate basis of impeachment of the judgment orders.”

Reviewing this record as a whole, we conclude that the mistake in indictment numbers which occurred in defendant’s sentencing was a mere misstatement, which neither side called to the court’s attention. Since the judgment order which corrected the oral mistake of the trial court was entered on the same day the misstatement was made, and defendant had not yet embarked on his sentence, we find the defendant was in no way prejudiced by the correction. We find no error here.

Finding no prejudicial error, defendant’s convictions on indictments Nos. 66-931, 932 and 933 and sentences are hereby affirmed. For the reasons heretofore given, defendant’s conviction and sentence on 66-24 is reversed and the cause is remanded to the trial court for such further proceedings as are warranted, including defendant’s charges that his substantial rights were violated, including his right to a speedy trial.

Convictions and sentences on indictments Nos. 66-931, 66-932 and 66-933 are affirmed; No. 66-24 is reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE STAMOS

text:
    Steve C. Bubrick, Jr., and Mae E. Bubrick, Plaintiffs-Appellees, v. Northern Illinois Gas Company, a Corporation, Defendant-Appellant.
    Gen. No. 53,067.
    First District, Fourth Division.
    September 23, 1970.

      Joseph J. Jares, Jr. and Brunon J. Komosa, of Chicago, for appellant.
    Nathan G. Brenner, Jr., Goldenson, Kiesler, Berman & Brenner, of Chicago (William Elman, Elman and Ehardt, of counsel), for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs brought an action for property damage to their home and personal belongings by the alleged negligence of defendant in causing a fire. Defendant appeals from a judgment in favor of plaintiffs, in the amount of $22,114.00. Defendant contends that the trial court committed prejudicial error by allowing certain instructions to be submitted to the jury, thus entitling defendant to a new trial.

Plaintiffs moved into their home in July, 1959, and remained in residence until January 24, 1961, when it was extensively damaged by fire. The fire originated in a small enclosure attached to the rear of the house. This enclosure was described as a shed, cubicle, cabinet or box and in appearance it was similar to a dog house. It was of wood construction, 4 feet high, 3% to 4 feet long and 3% feet in width with a concrete foundation.

This enclosure contained a water pipe, gas meter and regulator and an electrical switch that actuated the water pump which was located in a well 75 to 80 feet from the house.

STEVE BUBRICK, testified on his own behalf:

He had only one occasion to enter this enclosure and that occurred in October, 1960, when he placed sawdust into it covering the water line coming out of the ground into the kitchen to prevent it from freezing. He did notice that in the spring grass did not grow near this enclosure. The weather, the evening and morning of the fire, was in the subzero temperatures and plaintiffs deliberately left the water running to keep the pipes from freezing.

On the morning of the fire, plaintiff awakened at 3:00 a. m. and noticed the house was filled with smoke. He awakened his wife and they fled the house. They did not smell any gas nor did they see any flames in the house, but when plaintiff went outside, he saw a light in the enclosure. He opened the door to the enclosure and saw flames pouring from underneath a gas pipe below the meter. The flame was bluish, 7 to 8 inches high and 1 to 1% inches wide, and was coming through the sawdust which was now all ashes alongside the pipe. Plaintiff went to seek a hose, but by that time firemen had arrived at the scene. At this point in time, he heard an explosion and saw gas or fire coming out in spurts, making a trumpeting sound. The whole side of the house started to burn, and it was not until four hours later that the fire was extinguished.

Plaintiff left for work but returned in a few hours and noticed that the gas meter and approximately eight feet of defendant’s underground gas pipe had been removed.

MRS. BUBRICK, plaintiff’s wife, testified:

In 1960 she called defendant because of gas odors in her kitchen and they came and made adjustments to her range. On several occasions she believes she smelled gas inside their home.

FRED TELTZ, testified on behalf of plaintiff:

He was a member of the Lake Villa Fire Department and responded to a fire at plaintiff’s home. Upon his arrival, he observed the fire was intense at the area of the enclosure. The regulator was burning and defendant was summoned to shut off the flow of gas. A serviceman from defendant arrived within an hour and with the assistance of the firemen and their fog nozzle equipment, he was able to reach into the enclosure and shut the valve. The fire at the regulator then extinguished. The witness had no recollection of anyone removing any gas equipment and the last time he saw the regulator and gas meter was when he helped defendant’s serviceman shut the valve which was located just below the regulator.

On cross-examination the witness related that he observed the flame 18 inches above the ground at the area where the regulator was located. There was no flame coming from the ground.

EDWARD C. McLEAN, testified on behalf of plaintiff:

He is an expert in the field of Industrial Engineering and in the design and construction of systems utilizing gas or electricity. He had occasion to examine fire damage to structures and machinery in the pursuance of his expertise. In response to a hypothetical question, this witness responded that in his opinion the initial source of fuel or combustible material which caused the fire was the gas coming out of the ground. The ignition of the gas was caused by the electric switch which energized the water pump in order to elevate the water pressure after it had been diminished by the constantly running water to prevent freezing. The source of fuel in the flames could only have come from the pipe carrying high pressure gas to the enclosure, rather than from any other source. There was another gas pipe in the enclosure leading from the gas meter to service the customer’s appliances, which is the customer’s pipe.

ELMER FRANK, testified on behalf of plaintiff:

He was a neighbor of plaintiff’s and on the morning of the fire he saw a light of fire and then observed smoke coming from plaintiff’s home. There were flames coming out of the enclosure and these flames seemed to be shooting “up like” from the ground.

JOSEPH W. LYNCH, was called as an adverse witness and testified:

He is manager of Maintenance and Construction for defendant and was operating superintendent at the time of the fire. He was in charge of the construction of gas mains, services, installing meters, regulators, maintenance of pressure and underground facilities and servicing of equipment.

Gas is purchased at 700 lbs. pressure per square inch and is reduced to 150 lbs. p.s.i. and thus forced into the mains. In the cities the pressure is reduced to between 20 to 60 lbs. p.s.i., where it is distributed in mains. The gas main near plaintiff’s home was 60 lbs. p.s.i. and the line leading into their regulator was about the same. Defendant has records of the main but not the services. The company maintains records showing when the pipe was installed, but the witness did not remember when the gas service line was put in from the main to plaintiff’s home; although he had looked at the records after the fire and the day he testified, he forgot the date of installation. Records of mapping of mains and dates of installation are at the Crystal Lake office. Practically every one of defendant’s lines has anodes but this would depend on when the pipe was installed and ground conditions, because some soil is more corrosive to pipe than others. Defendant keeps a record of lines which have anodes and the record would show if the line to plaintiff’s home was equipped with anodes.

The witness had never seen these records but believed they are also at Crystal Lake. The meters are read every month, or at least every two months, but the witness did not believe the records were kept after billing the customer. A record is maintained by defendant on service calls, but this witness did not know if there was a record of a service call from July, 1959, to January, 1961, regarding plaintiff’s home. There was no service call for one year previous to the fire. A search of the records which are retained from a year to 18 months indicated there was no call at plaintiff’s home. When asked as to the whereabouts of these records, this witness responded that they have either been destroyed or would be at the Aurora office of defendant. He made no personal search but relied upon a clerk whose name he could not remember, so that the witness personally did not know if a service call had been made.

About 30,000 service calls a year are made by defendant. Defendant has a regular maintenance policy regarding its underground system and keeps a record of maintenance, but he did not know the last time the main near plaintiff’s home was inspected. The lines are checked every five years and an instrument is used on the surface to detect underground leaks. A record of this practice is maintained and may be at Crystal Lake or in general storage at Aurora, but he had never seen it.

The first fitting on the gas pipe as it comes out of the ground is a valve. Above the valve is a regulator which reduces the pressure. At a reduced pressure the gas enters the meter and is measured before it flows into the customer’s pipes and appliances. The gas was 60 lbs. p.s.i. before it reached the regulator and approximately 14 of a pound p.s.i. after leaving it and entering the meter.

He was not present when the meter and regulator were removed, but the record of when it was done would probably be kept in general files in Aurora. The presence of a quantity of gas removes oxygen and this could cause vegetation to “brown out.”

LLOYD SMITH, testified on behalf of defendant:

On the morning of the fire he was employed by defendant as an appliance serviceman and was directed to proceed to plaintiff’s home,where there was a fire in progress. There was much smoke and the fire department was in attendance fighting the fire. The firemen assisted this witness so that he could reach into the enclosure to shut off the gas. He observed that flame was coming from or around the regulator that was extinguished when he closed the valve. No fire was observed emerging from the ground in the enclosure. He had no recollection of removing the regulator and meter, nor did a “meter removal order” in evidence refresh his recollection. Although his signature appeared on the removal order, he testified some other employee could have done it.

JOSEPH LYNCH, testified on behalf of defendant:

He interviewed plaintiff at his place of business on the day of the fire and plaintiff told him he saw the fire emerging from a circular plate, but did not say he observed it shooting up from the ground. A circular plate would mean he saw the regulator. In his opinion, the leaking gas was coming from a crack or break in plaintiff’s gas pipe that led out of the meter. The meter and regulator were removed but the witness did not know which employee of defendant did it.

OPINION

The first instruction complained of by defendant is Illinois Pattern Instruction No. 5.01 which permits an unfavorable inference if a party, without reasonable excuse, fails to produce evidence under his control. Defendants contend that the records concerning installation, maintenance and inspection of its lines and equipment were not material under plaintiff’s theory and that in any event, many of the records were unobtainable having since been destroyed.

Since these records pertain to the construction and maintenance of defendant’s lines, allegedly the cause of the conflagration, we find these records to be particularly material to plaintiff’s theory of the case. We also note that defendant’s employee Lynch testified to checking some of these records after the conflagration. Therefore, even defendant attached sufficient interest in these records that warranted their examination demonstrating their, materiality and relevancy.

Defendant in an endeavor to show a reasonable excuse for the absence or lack of records, introduced into evidence Illinois Commerce Commission regulations which provide for mandatory retention of records of general inspections, tests, meter repairs, customer services' and reports of complaints for two-or three-year periods. However, these regulations do not prohibit the retention of records beyond the specified intervals. In light of the testimony of Lynch, we assume that some of these records were still available. However, defendant offers no reasonable explanation for their nonproduction. It is also difficult to discern which of the records were in existence and which had been destroyed.

Defendant cites Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379 (1965), wherein a minor plaintiff was struck down by defendant’s truck as she ran across the street. There plaintiff subpoenaed the truck maintenance records of a year previous to the accident, but they were unavailable because they had been destroyed in the regular course of business. The court permitted plaintiff to comment on the unavailability of the records, but refused to give the instruction complained of in the case at bar.

In the case at bar, plaintiff pursued and was awarded a verdict on the theory that defendant’s negligence in the maintenance and operation of its property caused the fire. In Piechalak, there was no suggestion that the condition of the truck caused or contributed to the accident and it was firmly established that the records in that case had been destroyed in the ordinary course of business.

Therefore, we find no error in submitting this instruction to the jury.

Defendant next contends that Illinois Pattern Instruction No. 22.01, pertaining to the theory of res ipsa loquitur was erroneously given, because the enclosure was not in the sole control and management of defendant and that the fire could have occurred without any negligence on the part of defendant under the evidence.

Plaintiff at bar presented evidence that showed flames emerging from the location of defendant’s pipe leading into the interior of the enclosure and thus, there was established an inference of general negligence on defendant’s part that their instrumentality was defective.

Under that evidence, the pipe and equipment directly involved in the fire were the property of defendant and under its management and control are subject to inspections and regular visits by the meter reader. The fact that defendant’s apparatus shared a common enclosure and location does not vitiate or diminish this control. In Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 450, 207 NE2d 305, the court held:

“The usual requirement that the accident-causing instrumentality must be under the exclusive control of the defendant doesn’t mean actual physical control at the time of the accident, if the instrumentality or dangerous agency is one which it is defendant’s responsibility to maintain at all times and which responsibility cannot be delegated by consent, agreement or usage.”

See also Summers v. Northern Illinois Gas Co., 117 Ill App2d 125, 253 NE2d 881.

Therefore, we find no error in submitting the res ipsa loquitur instruction to the jury.

The remaining two instructions complained of by defendant are not Illinois Pattern Instructions. The first reads as follows:

“If you find the plaintiffs were not guilty of any contributory negligence, and you find that gas was present on plaintiff’s premises because of defendant’s negligence as charged, and that this gas was the proximate cause of the damage complained of, although the immediate cause of the fire was ignition, the defendant is liable for damages resulting from the fire.”

Defendant contends that this instruction is peremptory, directs a verdict in plaintiff’s favor, and assumes the element of damages. We find this instruction advises the jury that if the gas leak was found by them to have been caused by the negligence of defendant, it was no defense on defendant’s part to avoid liability by contending that the escaping gas would not have exploded and burned except for the spark caused by plaintiff’s electric switch. If escaping gas is a proximate cause of the damage, the fact that the immediate cause of the fire is ignition is irrelevant. McClure v. Hoopeston Gas & Electric Co., 303 Ill 89, 99, 135 NE 43 (1922). There can be no reasonable denial that plaintiffs were damaged.

The other instruction advised the jury that:

“It was the duty of the defendant, before and at the time of the occurrence, to use reasonable precaution in the furnishing of gas service and in the maintenance of its pipes and equipment to prevent the escape of gas upon plaintiff’s premises.” (Emphasis supplied.)

Defendant complains that this instruction implies that a gas meter, valve or regulator was defective by the use of the word “equipment” and that this was prejudicial because there was no evidence in this regard.

This instruction recited the duty of defendant to avoid gas escaping onto plaintiff’s premises and a further specific duty of maintaining its property to prevent the foregoing.

We also note that defendant in its special interrogatory to the jury, to which the jury responded affirmatively, asked:

“Was the defendant, Northern Illinois Gas Co., guilty of any negligence in the care and maintenance of its piping and equipment that proximately caused the damage complained of?” (Emphasis supplied.)

A party may not complain of an adversary’s instruction when its own tendered instruction is subject to the same criticism. Cf. Prostko v. Willstead, 75 Ill App2d 477, 480, 220 NE2d 751; and Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 301, 208 NE2d 379. The same would be true in this case concerning defendant’s tendered special interrogatory.

We do not perceive any implication that this instruction suggests to the jury that defendant’s apparatus was defective.

We therefore affirm the judgment.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.