text:
    People of the State of Illinois, Plaintiff-Appellee, Jonathan Townsend, Defendant-Appellant.
    Gen. No. 67-91.
    Fifth District.
    July 24,1969.

      Ralph T. Stenger, Bock & Stenger, of Belleville (Ralph T. Stenger, of counsel), for appellant.

      Robert H. Rice, State’s Attorney of St. Clair County, of Belleville, and William B. Starnes, Assistant State’s Attorney, for appellee.
   MORAN, J.

Defendant, Jonathan Townsend, appeals from a conviction for the crime of armed robbery, contending that the trial court committed reversible error in the admission of certain evidence.

On March 1, 1967, at about 8:15 a. m., a liquor store, known as Bob’s Liquor Store, was held up in East St. Louis, Illinois, by two men who were armed with guns. The only other person in the store at the time was an employee by the name of Bobby Wilson.

Bobby Wilson testified that she was a barmaid and cook at Bob’s Liquor Store in East St. Louis, had worked there for a period of seven years and that about 8:15 a. m., on March 1, 1967, she was held up by two colored men who came into the store. One man was “low and dark” and weighed about 135 or 140 pounds. The number two man was tall, with brown skin, and weighed about 140 pounds. She estimated his age to be in his 30’s. She identified the number two man as the one in the courtroom at the time she was testifying. Both men took money from the cash registers in the front of the building. Townsend took her into the back room to a cabinet which he forced her to unlock and she gave him the receipts from the previous night, because she did not want to get hurt. After taking the money from the drawer, Townsend told her to stay in a coal bin for five minutes. She stayed there about five or six minutes and then came out and pulled the burglar alarm. In a few minutes the police arrived at the liquor store and she related to a Lieutenant Christian and Patrolman Cox what had happened. She gave them a description of the two men and told the police that she could identify them.

On March 6, 1967, Patrolman Cox presented her with about five photographs and she was able to identify one of the photographs as Jonathan Townsend. She further stated that his moustache is now a little shorter than it was the day of the holdup; that she knew Jonathan Townsend’s mother for quite a few years and at one time was very friendly with him or acquainted with him to the point where she would know him when he would walk down the street, because she lived in the same neighborhood with him; that when she knew him he was older than her son and her son was then about fifteen years of age. The last time she saw Jonathan Townsend was March 1, 1967, and before that she did not remember the last time she had seen him. However, she did not mention the name, Jonathan Townsend, to the police when they first interviewed her on the day of the robbery because she did not recognize Jonathan Townsend as the man who held her up on that day.

Jacob Christian, an East St. Louis Police Officer with the rank of Lieutenant, testified that he was riding with a partner by the name of Robert Cox on the first day of March, 1967, when he received a dispatch at 8:15 in the morning to go to Bob’s Liquor Store at 1135 North Second Street, East St. Louis, Illinois. When he arrived there, a person by the name of Bobby Wilson was in the store and she described the circumstances of the holdup to him. Over the objection of the defendant, Christian related what Mrs. Wilson had told him concerning the details of the holdup and also related the description that she had given of the holdup men. He said that she told him that the number one man was darkskinned, weighed about 140 pounds, was about 35 years of age, 5 feet 6 inches tall, and wore blue jeans and a cap. The number two man was brownskinned, weighed about 165 pounds, about 33 years of age, thin moustache, wearing a light jacket with a hood attached, both were carrying revolvers and she could identify both of them if they were apprehended. He also testified that he recorded her statement in the form of a written report at about ten or ten thirty in the morning, after they had returned to the police station.

Robert Cox, an East St. Louis policeman, testified that on the first day of March, 1967, he was working with Lieutenant Christian. Over the objection of the defendant, he read from the report prepared by Lieutenant Christian on that day, which included the following:

“A. It’s as it is here. She said the No. 1 man was darkskinned, 140 lbs., 35 years of age, about 5' 6", wearing blue jeans and a cap. The No. 2 man was brownskinned, 165 pounds, 33 years of age, thin moustache, wearing a light jacket with a hood on it.”

The witness then testified that on March 6, 1967, he was making a door-to-door investigation and gave to the occupants of different homes a physical description of the holdup men. The State’s Attorney then asked:

“Q. Without going into that, did you have occasion to see Bobby Wilson on that date ?
“A. On March 6?
“Q. Would it assist you in your recollection to hand you a copy of your report on that date ?
“A. Yes, it would.
“Mr. Tro tier: Same objection, Your Honor.
“Court: Ob j ection overruled.
“Q. (By Prosecutor) Did you see Bobby Wilson that day?
“A. I remember the time element now. It was 3:45. We made our door-to-door earlier. When we received this information we went out with pictures and placed them in front of this witness, Mrs. Wilson, and she picked two pictures out as being the two fellows who held her up March 1 of this year.
“Q. Does your report indicate the names of the persons she picked out as having perpetrated this robbery?
“A. It does.
“Q. Will you state the names please.
“A. Berlin Scott and Jonathan Townsend, for the hold-up of Bob’s Tavern, March 1,1967.
“Q. What did you tell her, if anything, while you showed the photographs ?
“A. I asked her if she would be able to identify the two fellows who held her up. She said, T told you I would.’ She said, T definitely remember them.’
“Witness: I placed the pictures out in front of her and she at once made a selection. She picked out the two pictures. She said, ‘That’s the two right here.’ ”

James Wilson, the husband of Bobby Wilson, testified that he was the manager of a shoeshine parlor at 8 South Fifteenth Street in East St. Louis, Illinois and was present at the shoeshine parlor on the 13th day of March, 1967, when the defendant, Jonathan Townsend, came in to see him and asked that his wife not identify him. James Wilson testified that he then asked Townsend what he was talking about and Townsend said, “You know they picked me up about that stickup and she made a mistake in identifying me.” He further testified that Townsend “told me he come into a large sum of money. He was going to pay me and my wife well if she say she made a mistake in identifying him.”

Defendant contends that it was error not to exclude James Wilson’s testimony of the attempted bribery because this was evidence of another crime and that Wilson’s testimony served only one purpose — that of bolstering his wife’s testimony. This contention is without merit. People v. Gambony, 402 Ill 74, 83 NE2d 321; People v. Bloom, 370 Ill 144,18 NE2d 197.

Defendant also contends the trial court committed prejudicial constitutional error when it permitted the in-court identification based on an out-of-court identification from a photograph in the absence of a showing of the “totality of circumstances” surrounding the extrajudicial identification indicating that the same was not unnecessarily suggestive and conducive to irreparable mistaken identification.

The United States Supreme Court has declared that it is unwilling to prohibit the employment of the method of initial identification by photograph, either in the exercise of its supervisory power or as a matter of constitutional requirement; instead, each case must be considered on its own facts, and convictions based on eyewitness identification at trial following pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 US 377, 19 L Ed2d 1247, 88 S Ct 967, on remand 395 F2d 769.

We find nothing in the photographic procedure used in this case so suggestive as to give rise to a very substantial likelihood of irreparable misidentification of the defendant.

Defendant next contends that the delayed extrajudicial identification of defendant by selection from photographs where there were no safeguards such as defendant’s counsel or an independent third-party observer is reversible constitutional error. United States v. Wade, 388 US 218, 18 L Ed2d 1149, 87 S Ct 1926, Gilbert v. California, 388 US 263, 18 L Ed2d 1178, 87 S Ct 1951, and Simmons v. United States, supra. Defendant’s identification was made before indictment. In People v. Palmer, 41 Ill2d 57, 244 NE2d 173, our Supreme Court held that presence of counsel is required by federal decisions only when identification is made after indictment.

The defendant also contends that testimony given by Officers Cox and Christian as to what Bobby Wilson told them when they arrived at the scene of the crime constituted hearsay evidence and should have been excluded, and that by failing to do so the trial court committed reversible error. People v. Wright, 65 Ill App2d 23, 212 NE2d 126, People v. Lukoszus, 242 Ill 101, 89 NE 749. In Wright, the trial court permitted a police officer to testify as to a conversation with the victim fourteen days after the occurrence. In Lukoszus, the Supreme Court held it was reversible error to permit a police officer to testify that he got a description of the defendant from a purported witness to the crime. However, it was not indicated in that case how long after the purported crime the description was given.

The State contends that what Bobby Wilson told Officers Cox and Christian constituted a spontaneous declaration and was therefore admissible as an exception to the hearsay rule. We believe that what Bobby Wilson told Officers Cox and Christian when they arrived at the scene of the crime within a few minutes was admissible as a spontaneous declaration under the rationale of People v. Damen, 28 Ill2d 464, 193 NE2d 25, where the husband was charged with the rape of his wife by forcing her to submit to other men. Statements by the wife made to police officers after the police arrived were held to be admissible as “spontaneous declarations” made soon after the acts complained of occurred. The court pointed out that:

“. . . ‘Three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.’ If a statement is a true spontaneous declaration or exclamation, it is admissible, for testimonial purposes, to prove the truth of what was said, in all types of action and not just in rape or related cases. (6 Wigmore on Evidence, 3rd ed 1940, sec 1750; People v. Poland, 22 I112d 175.) Nor does the rule necessarily require the utterance in question to have been made by a participant in the event. It applies with equal force to the exclamations or declarations by excited observers.
“In our opinion, the statement made by complainant immediately following the occurrence qualified, under the requirements of Poland, as a spontaneous declaration admissible in full. The fact that the officer asked complainant 'what happened’ is, we believe, insufficient to destroy its spontaneity. People v. Harrison, 25 Ill2d 407.” Id. at 471-72.

Defendant also contends that the trial court committed reversible error in allowing Officer Cox to testify from the police report prepared by Lieutenant Christian on March 1, 1967, and from the police report prepared by Officer Cox on March 6, 1967. Permitting Cox to testify from the police reports was clearly error. (Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 57 NE2d 216; Allen v. Yancy, 57 Ill App2d 50, 206 NE2d 452.) His testimony that Bobby Wilson had identified the defendant from a group of photographs shown to her on May 6, 1967 was also error. (People v. Krejewski, 332 Ill 120, 163 NE 438; People v. Lukoszus, supra; People v. Cappalla, 324 Ill 11, 154 NE 451; People v. Wright, supra; People v. Harris, 83 Ill App2d 422, 228 NE2d 179.)

The prosecution argues that assuming that Officer Cox’s testimony was inadmissible, it was harmless error because every relevant fact contained in his testimony was testified to by other witnesses. We cannot agree with this statement. Bobby Wilson testified that she was able to identify just one of the men from the photographs presented to her by Officer Cox, while Cox testified from his report that she identified both Townsend and Scott from the photographs as the men who held her up on the day in question.

The truth of the charge against defendant rested almost wholly upon his identification by Bobby Wilson, and therefore it was important that the rulings on the evidence be correct. The improper testimony of Cox may have tended to bolster Bobby Wilson’s identification and given it the effect of corroboration. Under these conditions we are not prepared to say that the error of Cox’s testimony was harmless. (People v. Wright, supra; People v. Lukoszus, supra.)

For the foregoing reasons the judgment of the Circuit Court of St. Clair County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Freddie Baker, Defendant-Appellant.
    Gen. No. 67-123.
    Fifth District.
    July 24,1969.

      Sylvester L. Carter, of Madison (Clayton R. Williams, of Edwardsville, of counsel), for appellant.
    No brief filed for appellee.
   PER CURIAM:

This proceeding is brought under the Juvenile Court Act (c 37, § 701-1 et seq., Ill Rev Stats 1967) and was instituted by the filing of a petition in the Circuit Court of Madison County, in which an Assistant State’s Attorney alleged that Freddie Baker, hereafter called defendant, was a minor under the age of 17 years, was in need of protection and assistance, and was presently in the custody of the Sheriff of Madison County, having allegedly committed the offenses of Assault and Auto Theft. It prayed that a Detention Hearing be held in accordance with section 3-6 (c 37, § 703-6) of the Act.

The Detention Hearing was held, and pending an Adjudicatory Hearing, defendant was released to the custody of his parents.

On August 29, 1967, another petition was filed, assigned a number different than that of the first petition, stating that defendant was charged with the offenses of Theft and Assault which allegedly were committed 15 days subsequent to the date of the Detention Hearing. The petition prayed that defendant, his parents, and the Chairman of the Board of Supervisors of Madison County be made defendants, the issuance of summons returnable on the date of an Adjudicatory Hearing, that defendant be adjudged a ward of the Court, and at a Dispositional Hearing such order be entered for the care, custody and control of defendant as is in his best interest.

The record reflects that another Detention Hearing was held on August 21, 1967, and defendant was ordered detained by the Sheriff until the Adjudicatory Hearing. An Adjudicatory Hearing was held and a finding made that defendant was a delinquent. The court entered a Dispositional Order committing defendant to the Elinois Youth Commission. This appeal followed.

In In re Urbasek, 38 Ill2d 535, 232 NE2d 716, the Supreme Court held that to support a finding of delinquency based upon the commission of an offense, which, if committed by an adult would be a crime, the offense must be proved beyond a reasonable doubt.

We have carefully examined the testimony, and the record does not support a finding that defendant was guilty of either Theft or Assault. Insofar as the evidence purports to show a theft, his conduct if persisted in, might give rise to an action in replevin, but no criminal offense was proved. With respect to the Assault, proof of the necessary elements of the offense is lacking. The judgment of the Circuit Court of Madison County is reversed.

Judgment reversed.


author: EBERSPACHER, J. MORAN, J.,

text:
    Nellie Logue, Administrator of the Estate of Edward Logue, Deceased, and Nellie Logue, Plaintiffs-Appellants, v. Lela Williams, Defendant-Appellee.
    Gen. No. 67-130.
    Fifth District.
    July 29,1969.
    Rehearing denied August 26,1969.

      MORAN, J., dissenting.
    Murray & Stephens, of Centralia (William C. Stephens and George C. Lackey, of counsel), for appellants.
    James B. Wham, Wham & Wham, of Centralia, for appellee.
   EBERSPACHER, J.

This is a wrongful death action brought in the Circuit Court of Marion County, Illinois. The plaintiff alleged in her complaint that her decedent’s death was caused by the negligence of the defendant in driving her automobile. The jury returned a verdict for the defendant upon which the Court entered judgment. This appeal is taken from such judgment.

The plaintiff alleges multiple errors by the Court: That the Court erred in denying the plaintiff’s motion to sever Count I and Count II for trial, that the Court erred in denying the plaintiff’s motion to dismiss Count II of the Complaint without prejudice, that the jury was improperly instructed, that the Court improperly admitted and excluded certain evidence, and that the conduct of the defendant’s attorney was prejudicial. The allegations of error will be considered in the same sequence as they are presented by the plaintiff.

The first allegation of error by the plaintiff is that the Court erred in denying the plaintiff’s motion to sever Count I and Count II for trial. It appears that the Complaint filed by the plaintiff contained two counts. Count I was brought by Nellie Logue as Administrator of the estate of Edward Logue and sought damages for wrongful death. Count II was brought by Nellie Logue individually and sought medical and funeral expenses under the Family Expense Statute, § 15, c 68, HI Rev Stats. On the day of the trial the plaintiff made an oral motion to sever Count I and Count II for trial. The Court denied the motion.

The plaintiff bases her argument on section 51 of the Civil Practice Act which provides, “An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right.” The plaintiff argues that in Count II that the plaintiff was not the representative of a deceased person and that accordingly, the defendant would have been competent to testify as to this count under section 2 of the Evidence Act, c 51, Ill Rev Stats. The plaintiff’s argument continues that such a trial of both counts together would have seriously prejudiced the plaintiff since it would have been impossible for a jury to consider the defendant’s testimony as to Count II and to disregard it as to Count I, regardless of how carefully it might have been instructed.

We note that the plaintiff filed her Complaint on December 29, 1966, and no motion was made to sever until the date of the trial on June 21, 1967. The plaintiff’s decision to sue both individually and in her administrative capacity, of course, was of her own doing and a motion to sever issues for trial is addressed to the sound discretion of the trial judge. Blachek v. City Ice and Fuel Co., 311 Ill App 1, 72 NE2d 220 (1947); Mount v. Busing, 414 Ill 361, 111 NE2d 502 (1953). We do not feel that the Court abused its discretion, particularly in light of the late date of the plaintiff’s motion to sever.

Upon the Court’s denial of the plaintiff’s motion to sever, the plaintiff moved to dismiss Count II of the Complaint. The motion was granted by the Court and the jury was selected. After the selection of the jury but before opening statements, apparently a discrepancy arose as to whether Count II had been dismissed with or without prejudice, and upon the Court’s own motion the motion was recalled and the Court ruled that it would not dismiss Count II without prejudice. Thereupon an Order was entered dismissing Count II with prejudice.

The plaintiff alleges that the Court erred in this regard and cites for our consideration section 52 of the Civil Practice Act; section 52, subsection 1 provides in part, “the plaintiff may at any time before trial or hearing begins upon notice to each party who has appeared or his attorney, and upon payment of costs dismiss his action or any part thereof as to any defendant without prejudice, by order filed in the cause.”

If a plaintiff is desirous of dismissing a count of a multiple-count complaint at the moment of trial, it is incumbent upon him to correctly and adequately inform the Court and the opposing parties whether his motion is to dismiss with or without prejudice, particularly if it is an oral motion without the notice required by the Civil Practice Act and under such circumstances as are presented in this case; the Court properly denied the Motion To Dismiss without prejudice after selection of the jury since the trial had actually begun. Wilhite v. Agbayani, 2 Ill App2d 29,118 NE2d 440 (1954).

With regard to the plaintiff’s allegation that the jury was improperly instructed, the plaintiff alleges that four instructions tendered by the defendant and given by the Court were erroneous. The first instruction objected to by the plaintiff is defendant’s instruction No. 17, which is an IPI instruction as to section 175, c 95%, Ill Rev Stats, which requires a pedestrian to walk on the left side of the roadway.

The evidence as to the actual collision is sketchy inasmuch as the defendant was precluded from testifying as an incompetent by virtue of the Evidence Act. However, it is clear that the defendant was proceeding south on a rural road and the plaintiff’s decedent was a pedestrian. Just prior to the collision the plaintiff’s decedent was observed standing in the middle of the road. The basis of the plaintiff’s argument is that the plaintiff’s decedent was struck on the east side of the road by the defendant who was proceeding south. The evidence revealed that the defendant’s automobile came to rest on the east side of the road and that the plaintiff’s decedent was pinned beneath the automobile. The plaintiff’s argument continues that the plaintiff’s decedent was actually in less danger from the defendant on the right side than on the left side of the road because the defendant was required to drive on her right and that if the defendant had kept to the right side of the road, the plaintiff’s decedent would have suffered no harm.

The plaintiff’s argument overlooks the fact that there was no direct evidence that Mr. Logue was on the right side of the road, but in fact, all of the inferences are that the plaintiff’s decedent was standing in the middle of the road when struck. We believe that there was sufficient evidence from which the jury could draw the inference that the plaintiff’s decedent violated the Statute by not walking on the left side and in doing so was guilty of negligence which proximately contributed to his injuries and death.

The next allegedly erroneous instruction was IPI Instruction No. 3.01 and was given by the trial judge. The instruction provides:

“The credibility of a witness may be attacked by introducing evidence that on some former occasion he made statements inconsistent with his testimony in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness.”

The plaintiff’s objection to this particular instruction is that only one witness was sought to be impeached by prior inconsistent statements. The plaintiff argues that the defendant at best did no more than lay a foundation for the introduction of such prior statements and that the witness was equivocal in his answer as to whether he made the previous statements and that it was, therefore, incumbent upon the defendant to introduce evidence of the prior statements if she desired to impeach the witness’s testimony. From our examination of the record we find that the witness was sought to be impeached by prior inconsistent statements that he made during a discovery deposition. We further note that the witness, when asked if he had made the prior inconsistent statement, answered quite unequivocably, “I made the statement.” It was therefore not necessary to introduce evidence of that prior statement and accordingly, the instruction was proper and correctly given under the circumstances.

The plaintiff next alleges that a “sudden emergency” instruction given by the Court, Defendant’s No. 4, was erroneous. Although IPI § 12.02 (1961) recommended that the instruction not be given, the identical instruction was given in Culp v. Olive, 45 Ill App2d 396, 195 NE2d 729 (1964) and there held to be harmless error, the Court saying:

“We are fully aware of thé thinking of the committee which prepared IPI. The principle giving rise to their recommendation that such an instruction not be given is, ‘It states a simple and obvious fact about human behavior’ . . . ‘when no juror would need to be reminded of the proposition.’ If this reasoning is adopted, and if this matter is the proper subject of comment on final argument as suggested by the committee, then we fail to see how plaintiff was prejudiced by the giving of the instruction. We do not disagree with the recommendation of the committee but are of the opinion that under the factual situation here presented the error was harmless. Modern tendency favors a liberal application of the harmless error doctrine to instructions when it appears the rights of the complaining party have in no way been prejudiced.”

The instruction has been held erroneous in numerous pedestrian cases: Reese v. Buhl, 16 Ill App2d 13, 147 NE 2d 431; Randal v. Deka, 10 Ill App2d 10, 134 NE2d 36; Moore v. Daydif, 7 Ill App2d 534, 130 NE2d 119, and in some situations the giving of this instruction of itself may be reversible error. The 1965 revision of IPI took into consideration the holding in Culp v. Olive, supra, “where the event was a split-second collision,” and repeated the recommendation that no instruction be given “either on the duty of one in imminent peril or the responsibility of the person causing the perilous situation.” In the face of such admonition, the instruction should not have been given.

The last instruction objected to by the plaintiff is Defendant’s No. 3, which is not in IPI and which was;

“The Court instructs the jury that you should not consider the questions of damages in this case until you have first determined whether or not the defendant is liable for the loss and damage claimed by the plaintiff, and if you find from the evidence and under the instructions of the court that the defendant is not liable to the plaintiff, then you have no occasion at all to consider the question of damages. The fact that the court has given you instructions on the subject of plaintiff’s damages, if any, or that defendant’s counsel has discussed such subject is not to be taken by you as any intimation on the part of the court or any admission on the part of the defendant that the defendant is liable for the loss or damage complained of by the plaintiff.”

This identical instruction was discussed by the Court in Hoffman v. Wilson, 60 Ill App2d 396, 308 NE2d 607 (1965). The Court there found no error in the giving of the instruction. Although it may be logical for a jury to determine the question of liability first, there is no requirement that they do so. The instruction tells them twice that the question of damages cannot be considered until the question of liability is determined; it creates the impression that the court has reservations about defendant’s liability and singles out and unduly emphasizes that issue. It is subject to the criticism of being negative in nature — telling the jury not to do something. It is not in IPI and is neither simple, brief, impartial nor free from argument; much of the substance of it is included in IPI, Revision of 1965, 1.01 and 21.07. As a result, the giving of Defendant’s No. 3 did not comply with Supreme Court Rule 239, and it should not have been given.

While we hold the giving of both Defendant’s No. 4 and 3 was error, our review, of all the instructions given, and the supporting evidence, leads us to the conclusion that plaintiff was not prejudiced by the instructions given.

The plaintiff next alleges error in the Court’s receiving evidence of careful habits in favor of the defendant. This Court has previously ruled that such evidence is admissible. McElroy v. Force, 75 Ill App2d 441, 220 NE2d 761 (1966). We see no valid distinction between this case and the facts presented in McElroy. Furthermore, only a general objection was made to the testimony of the first of three careful habit witnesses of defendant. See Shepard v. City of Aurora, 5 Ill App2d 12, 26, 124 NE2d 584, 590.

The remaining allegations of error by the plaintiff concern the admission or exclusion of evidence by the Court. The first concerns testimony adduced which related to a conversation between the defendant and a witness. As stated above, by virtue of Section 2 of the Evidence Act, the defendant was incompetent to testify on her own motion as to anything that occurred before the plaintiff’s decedent’s death. During the plaintiff’s case, the plaintiff called a witness who testified that the defendant stated to him just after the incident, “I have just hit a man, a boy or something, down the road and they are pinned under my car because I can hear them hollering.” Later the defendant testified in rebuttal as to her recollection as to her conversation with the particular witness. The plaintiff found the exculpatory portions of the conversation as related by the defendant to be objectionable and objected to the admission of the defendant’s recollection of the conversation.

The plaintiff acknowledges the applicability of paragraph 4 of section 2 of c 51, Ill Rev Stats, which provides:

“Where, in any such action, suit or proceeding, any witness, not a party to the record, or not a party in interest, or not an agent of such deceased person, shall, in behalf of any party to such action, suit or proceeding, testify to any conversation or admission by any adverse party or party in interest, occurring before the death and in the absence of such deceased person, such adverse party or party in interest may also testify as to the same admission or conversation

but urges that the defendant exceeded the bounds of such exception. There is no doubt that the plaintiff was attempting to obtain all of the advantage of the inculpatory statements made by the defendant to the exclusion of the exculpatory statements contained in the same conversation. In our opinion this is the precise reason that this particular section of the Statutes is broad enough to allow the incompetent witness to testify as to the entire conversation and the circumstances surrounding it, including the proper context in which portions of the conversation are taken. Crow v. Blasser, 335 Ill App 281, 81 NE2d 742 (1948). In our opinion the Court not only correctly permitted the defendant to testify as to the full conversation but would have committed reversible error if such evidence had been excluded.

The plaintiff’s second contention as to erroneous testimony relates to the alleged prejudicial error of the defendant’s attorney repeatedly asking improper questions to which objections have been sustained. The plaintiff’s allegations of repeated improper questioning is not borne out by the record. From our examination of the record as directed to us by the plaintiff, we find three questions that were asked upon which objections were sustained by the Court. We further note that the content of each of the questions was different. If indeed the questions were improper, such conduct was not repeated, nor prejudicial, nor error.

The third complaint of testimony, the admission of which the plaintiff finds objectionable, concerns the testimony of a witness who was permitted to testify that some four hours after the incident he smelled alcohol in the vomit of the plaintiff’s decedent. The plaintiff argues that there was improper foundation for such testimony. We believe that the testimony that the witness had been in contact with persons who had been drinking and could distinguish the smell of liquor was sufficient foundation. The further objection to such testimony by the plaintiff on the grounds that no attempt was made to connect up such testimony to show that the plaintiff’s decedent was intoxicated at the time of the incident is also without merit. There was sufficient independent evidence other than this particular witness to indicate that the plaintiff’s decedent had been consuming alcoholic beverages on the night of the incident. Such evidence was proper and a valid circumstance to be considered by the jury in determining the liability of the parties.

The fourth objection of the plaintiff relates to the exclusion of statements of the decedent made in the ambulance on the way to the hospital following the collision, outside the presence of defendant. Plaintiff argues that the statements were so connected with the incident and of such spontaneity that their exclusion by the Court was erroneous. We note that the Court sustained the objection of the defendant to the evidence and that no offer of proof was made by the plaintiff and that the Court was therefore offered no opportunity to know what the witness’s answer would have been if he had been permitted to testify. Accordingly, there is nothing before this Court to show the competence or materiality of the answer which would have been made to the question. Paden v. Rockford Palace Furniture Co., 220 Ill App 534.

The last allegation of objectionable testimony admitted by the Court to which the plaintiff assigns error relates to the cross-examination of certain plaintiff’s witness and the direct examination of certain defendant witnesses as to specific instances of drunkenness of the plaintiff’s decedent on various occasions prior to collision which caused the death of the decedent.

Upon examination of portions of the record to which our attention has been directed by both the plaintiff and the defendant, we find a multitude of testimony as to the plaintiff’s decedent’s habit of intemperance and specific instances of insobriety. Much of the testimony was received at the instance of the plaintiff; the remaining, of course, at the instance of the defendant, either through cross-examination or by direct evidence. As to that portion received at the instance of the defendant, some was received over objection and some without objection. Looking alone at the evidence that was received at the instance of the plaintiff and that to which there was no objection, we feel that it was pretty well established that the decedent was a man of intemperate habit. Plaintiff put into issue decedent’s habits of sobriety, thrift and industry, and by plaintiff’s given instruction No. 9, IPI 31.01.04 revised, instructed that such habits were factors for consideration in determining the pecuniary loss to the widow and children. Under such circumstances the evidence adduced by defendant, including specific instances of intemperance, and to which plaintiff now objects, was cumulative. Therefore, without ruling as to each particular portion of such testimony we do not conclude that plaintiff was particularly prejudiced by its admission. See Wigmore on Evidence, 3rd ed, §202.

In Both v. Nelson, 31 Ill2d 511, 514, 202 NE2d 494, the Supreme Court said: “It is not every error, of course, that will require a reversal. Where it appears that an error did not affect the outcome below, or where the Court can see from the entire record that no injury has been done, the judgment or decree will not be disturbed.” (Citing cases.)

For the foregoing reasons, the judgment of the Circuit Court of Marion County shall be affirmed.

Judgment affirmed.

GOLDENHERSH, J., concurs.

MORAN, J.,

dissenting:

In Littlefield v. Alton & So. Railroad, 96 Ill App2d 470,239 NE2d 147, this court said at 482:

“. . . Under the circumstances, we cannot say that ‘the record affirmatively shows that the error was not prejudicial’ as required by Duffy v. Cortesi (supra) or as stated in Both v. Nelson, supra, that the error did not tip the scales in defendant’s favor. We conclude, therefore, that the error requires reversal of the judgment and remandment for a new trial.”

In the present case I fail to see how this court can say that the record affirmatively shows that the error committed by the trial court was not prejudicial.


author: CRAVEN, P. J.,

text:
    Cyril Edward Zoerner, III, a Minor, by Laura J. Zoerner, His Mother and Next Friend, Plaintiff-Appellant, v. Eisner Grocery Company, a Corporation, and Folding Carrier Corporation, a Corporation, DefendantsAppellees.
    Gen. No. 11,050.
    Fourth District.
    July 30,1969.
    Rehearing denied September 4,1969.
    Mort A. Segall, of Champaign, for appellant.
    Franklin, Flynn & Palmer, and Hayes & Moore, of Champaign (Charles L. Palmer, of counsel), for appellees.
   CRAVEN, P. J.,

delivered the opinion of the court.

In May of 1964, Mrs. Zoerner took her son (the plaintiff here), then aged two years, with her to a grocery store in Mahomet, Illinois, to do some grocery shopping. The store was owned and operated by Gerald Trinkle. Some products in the store were labeled “Eisner Grocery Company” and advertisements by the store bore the emblem of “Eisner Agency.” The store owner had purchased some grocery basket carts from the Eisner Grocery Company. The carts were assembled and ready to be used. Some were equipped with seats for children and others were not.

A metal tag affixed to the cart on one side bore the inscription “Eisner’s” and a like tag on the other side was inscribed “Folding Carrier Corp.” with a patent number and address. Mrs. Zoerner placed her two-year-old son in a cart equipped with a seat and pushed the cart in front of her as she went through the store. She went to the meat counter and as she was conversing with the butcher she heard a noise and turned to her right just as her son fell from the cart. This action by the mother as next friend is to recover for the child’s injuries allegedly sustained in the fall.

A cart described as identical to the one involved was introduced and received into evidence without objection. The evidence is further that at no time did the cart involved tip or turn over nor was it otherwise interfered with, and Mrs. Zoerner testified that she did not lose control or contact with the cart.

This action against Eisner Grocery Company and Folding Carrier Corporation, the alleged manufacturer of the cart, asserts liability by reason of (1) strict tort liability, (2) negligence, (3) breach of implied warranty, and (4) breach of express warranty. At the conclusion of the evidence summarized above counsel stipulated that the trial court could hear arguments on motions by the defendants for directed verdicts on the question of liability with the plaintiff reserving the right to present medical evidence at a later time. This procedure was followed and the trial court allowed the motions without passing upon the issue of proximate cause or damages. This appeal is from the judgments for the defendants thus entered.’ We affirm those judgments.

We find no evidence in this record that establishes any basis of liability of either defendant. The only evidence relating Folding Carrier Corporation to this cart or plaintiff’s injury is the fact of its name being on the side of the cart. Even if we assume, as plaintiff asserts we must, that this proves this defendant designed, manufactured and sold the cart there still exists no evidence of its negligence nor breach of any duty, express or implied, to the plaintiff.

Plaintiff describes this as a products-liability case and states the defendants owed a duty to the plaintiff to provide a cart that would be “safe for him to ride in while his mother was shopping and that the omission of a seat belt or restraining device created an unreasonable danger and defective condition.” The many Illinois cases cited and discussed in the briefs were, for the most part, reviewed and discussed by the Illinois Supreme Court in a recent exhaustive opinion involving the same issues with which we are concerned. In Williams v. Brown Mfg. Co., — Ill2d —, (— NE2d — (1969)) (Docket No. 41425, opinion filed May 28, 1969 — time for rehearing not expired) , the Supreme Court stated:

“Strict liability in tort was originally imposed upon those in the manufacturing and distribution chain to protect ordinary users and consumers from physical harm caused by a defective condition in a product making it unreasonably dangerous to the consumer. It is not, contrary to what it is sometimes called, a doctrine of absolute liability entitling any person harmed in using a product to recover from any member of the production and distribution group. It does not make a manufacturer, distributor or retailer an insurer of the consumer’s safety. It is liability without negligence, but it is not liability without fault. There must be a defect in the product, it must be established as existing at the time of leaving defendant’s control, and it must be such as renders the product unreasonably dangerous to the consumer. (Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965); Wright, The Defective Product and Strict Liability, ABA Law Notes, April, 1969.) That the defect is not the result of the defendant’s negligence is no defense, and it is in this respect, and in the elimination of the privity requirement, that the theory of strict liability represents a major departure from traditional tort and contract law principles . . . .”

Further the court stated (— Ill2d — (— NE2d —)):

“It is universally agreed that a necessary element of plaintiff’s case is a showing that the defective condition renders the product unreasonably dangerous . . . .”

Plaintiff also cites Brady v. Great Atlantic & Pacific Tea Co., 336 Mass 386, 145 NE2d 828 (1957) as representative of at least one jurisdiction which has recognized a “duty” on the part of the defendants in a case such as this. There a defective cloth strap restraining device installed on a grocery cart broke and a child fell and was injured. We cannot equate injuries received as a result of a defective strap or restraining device with a duty, as a matter of law, to provide a restraining strap.

The fact of an injury, even to an infant plaintiff, does not give rise to a presumption or inference that the defendants breached some duty to the plaintiff and that they were negligent nor does it give rise to a presumption or inference that the product involved was defective in either design or manufacture, nor that it was unreasonably dangerous. The absence of any evidence on these necessary issues mandated the directed verdict as no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). The judgments of the Circuit Court of Champaign County are affirmed.

Judgments affirmed.

SMITH and MILLS, JJ., concur.


author: STOUDER, P. J. ALLOY, J.,

text:
    Robert N. McCormick, Petitioner-Appellee, v. McDougal-Hartmann Co., Respondent-Appellant.
    Gen. No. 68-58.
    Third District.
    August 1, 1969.
    Rehearing denied September 9,1969.
    ALLOY, J., dissenting.
    Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Moehle, Moehle, Reardon and Sincock, of Washington, for appellee.
   STOUDER, P. J.

Plaintiff-Appellee, Robert McCormick, commenced this action in the Circuit Court of Tazewell County seeking to enforce an award of the Illinois Industrial Commission entered against his former employer, McDougal-Hartmann Company, Defendant-Appellant. The court entered judgment against defendant and this appeal follows. This is not an appeal from an award of the Illinois Industrial Commission but is an appeal from a judgment entered in proceedings instituted to implement an award of the Commission.

The facts are substantially undisputed. In 1959, plaintiff, hereinafter referred to as employee, while employed by defendant, hereinafter referred to as employer, sustained an injury while working on a road project, which resulted in his total and permanent disability. Employer admitted that such injuries were compensable under the Workmen’s Compensation Act and paid the benefits therein provided until 1965. Sometime prior to 1965, employee filed a claim with the Court of Claims on the basis that his injuries were the result of the negligence of the State of Illinois. Employer was aware that such a claim had been filed and according to its statement of facts, sent a letter both to the employee and to the State of Illinois indicating its interest. The effect of such letter is not an issue in this case. In due course the Court of Claims made an award in favor of employee in the amount of $25,000, and the amount was thereafter paid to employee. The employee declined to pay such amount or any part thereof to employer and thereupon the employer ceased to make any further payments to employee under the Workmen’s Compensation Act. Employee thereafter filed his claim with the Illinois Industrial Commission and an award was entered by the Arbitrator, thereafter affirmed by the Industrial Commission, in favor of employee. No payments being made on such award, employee instituted suit in the circuit court, seeking to recover alleged payments due as of the date of the filing of the action. Employer argued that no amount was due employee under the Commission’s award because it was entitled to take as a credit against such award the $25,000 received by employee from the State of Illinois and not paid to employer. The trial court rejected employer’s argument and entered judgment in favor of employee on the award without giving credit to employer for the amount claimed and it is this action of the trial court which employer assigns as error.

The only issue on this appeal is whether an amount received by an employee from a third-party tort-feasor but not paid to his employer may be taken by the employer as a credit against the latter’s obligation to pay benefits under the Workmen’s Compensation Act, c 48, § 138-1 et seq., Ill Rev Stats 1967.

The basis of this controversy is c 48, § 138-5 (b), Ill Rev Stats 1967, which provides, “Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of this Act. ... If the injured employee or his personal representative shall agree to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the said employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party. . . . The employer may, at any time thereafter join in said action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. . . .”

Arguing the trial court erred in denying the credit claimed, employer contends the conclusion of the trial court is contrary to the Industrial Commission’s award. As indicated earlier, employee’s action in the trial court sought enforcement of an award in his favor by the Industrial Commission. It may be supposed that employer asserted its claim for credit before the arbitrator and before the Industrial Commission since this was the only reason it had for cessation of compensation payments in 1965. An examination of the award order of the Commission discloses that the Board did not make any finding regarding the allowance or disallowance of employer’s claimed credit. In fact, there is no mention of the claimed credit anywhere in the award and if it were not for the argument of the parties to the contrary we would have no reason to believe that the issue of the claimed credit was considered by the Commission. The provision of the award which employer asserts supports its conclusion that the credit was allowed provides, the employer shall “. . . have credit for all sums of money, if any, heretofore paid petitioner on account of accidental injuries sustained on August 10, 1959.” Both parties concede that this is the usual and customary phraseology of a Commission award and is a consequence of the practice of the Commission not to be concerned with the mechanical calculations respecting payments either prior to the hearing or prior to the entry of the award. The conditional or contingent nature of the provision quoted does not, in our opinion, support the conclusion that any particular payment or credit was thereby approved.

This reduces the argument to the conflicting contentions as to whether the absence of any finding with respect thereto is an allowance or a disallowance of the credit claimed. Employer, having presented an affirmative claim or defense, we are inclined to believe that the failure to allow the credit was in legal effect a disallowance thereof. However the Commission’s silence may also be interpreted as an indication of belief that it had no authority to determine the dispute or that the dispute was more appropriately resolved in an action to enforce the award. Board of Education of High School Hist. No. 502 v. Industrial Commission, 308 Ill 445,140 NE 39, and c 48, § 138-19 (g), Ill Rev Stats 1967. Since neither party relies solely on the provisions of the award, but, on the contrary, have presented arguments on the merits of the question, we deem it appropriate to consider the case on its merits.

There appear to be few decided cases dealing with the application of c 48, § 138-5 (b), Ill Rev Stats 1967, and such cases as there are appear to be of little assistance in resolving the issue before us. In the three cases cited by employer, enforcement of employer’s right of reimbursement was sought by lien (Employer Mut. Cas. Co. v. Trimon Elevator Co., 71 Ill App2d 124, 217 NE2d 391) or by intervention (Sjoberg v. Joseph T. Ryerson & Sons, 8 Ill App2d 414, 132 NE2d 56, and Arnold Lies Co. v. Legler, 26 Ill App2d 365, 167 NE2d 813). Such cases affirm the right of employer to reimbursement as provided by Statute and also approve the statutory remedies designed to protect or enforce the reimbursement right. In the instant case no question arises concerning employer’s right to a lien or to intervene and, in fact, employee concedes that any failure of employer to avail itself of such remedies does not bar employer’s right of reimbursement.

As we understand employee’s position, he admits the existence of the reimbursement obligation but denies that employer is entitled to seek enforcement of such obligation by the remedy invoked by the employer. Employer’s position is that it was entitled to claim the credit as it did because otherwise employee would receive a double recovery. Initially it should be observed neither party makes any claim based on the nature or source of the third-party recovery.

The right of an injured employee to receive and enjoy the benefits of Workmen’s Compensation payments is specially protected by the Act. Chapter 48, § 138-21, Ill Rev Stats 1967, provides, “No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment, or be held liable in any way for any lien, debt, penalty or damages. The compensation allowed by any award or decision of the Commission shall be entitled to a preference over the unsecured debts of the employer, wages excepted, contracted after the date of the injury to an employee. A decision or award of the Commission against an employer for compensation under this Act, or a written agreement by an employer to pay such compensation shall, upon the filing of a certified copy of the decision or said agreement, as the case may be, with the recorder of deeds of the county, constitute a lien upon all property of the employer within said county, paramount to all other claims or liens, except mortgages, trust deeds, or for wages or taxes. Such liens may be enforced in the manner provided for the foreclosure of mortgages under the laws of this State.” See East Moline Works Credit Union v. Linn, 51 Ill App2d 97, 200 NE2d 910, illustrating the application of this section. The breadth of the exemption declared by the legislature forms a firm foundation supporting the right of an employee to receive the benefits provided as against the claims of others.

The intention of the legislature to protect the employee’s benefits under the Act is further demonstrated by c 48, § 138-8(j)2. Such section provides, “Nothing contained in this Act shall be construed to give the employer or the insurance carrier the right to credit for any benefits or payments received by the employee other than compensation payments provided by this Act, and where the employee receives payments other than compensation payments, whether as full or partial salary, group insurance benefits, bonuses, annuities or any other payments, the employer or insurance carrier shall receive credit for each such payment only to the extent of the compensation that would have been payable during the period covered by such payment.” In the instant case employer insists that the foregoing section is inapplicable because the recovery from a third party is not “. . . partial salary, group insurance benefits, bonuses. . . .” We agree that the provision relating to such items as salary or bonuses may not include a recovery from a third-party tort-feasor but the provision is an independent provision and does not limit the initial proscription that employer is not entitled to credit for payments other than compensation payments.

In City of Evanston v. Industrial Commission, 367 Ill 155, 10 NE2d 644, decided before the enactment of the foregoing section, the court held that payment received from collateral sources (relief payments) could not be charged against or deducted from the obligation of the City to pay Workmen’s Compensation benefits. In Kennedy-Van Saun Mfg. & Engineering Corp. v. Industrial Commission, 355 Ill 519, 189 NE 916, the court held that payment under an accidental injury insurance policy secured by the employer and accepted by employee in lieu of Workmen’s Compensation benefits, was likewise neither chargeable against or deductible from the compensation obligation of the employer. The employee’s recovery from a third-party tort-feasor is not the receipt of compensation payments and unless deduction of the payment is authorized by some other statutory provision we see no reason why the prohibition of this section (c 48, § 138-8 (j)2) is not applicable. See Crane v. Loome, 25 Ill App2d 61,165 NE2d 728.

There remains the question of whether chapter 48, section 138-5 (b) authorizes the deduction and in our opinion it does not. Section 5(b) creates the right of reimbursement, the obligation of the employee with respect thereto and provides for two special methods, i. e., lien or intervention, for assisting employer in the protection of his right of reimbursement. Such special methods of assistance are operative primarily against the third-party tort-feasor and if these methods are not exercised, the statute provides no additional special remedies for employer. The statute recognizes that right of reimbursement may exist or arise when compensation payments are due but unpaid or will come due in the future but, notwithstanding such fact, employer is granted no particular interest in such unpaid compensation. In addition, there is no indication in the statute that employee, by receipt of proceeds of a third-party recovery thereby waives his right to the compensation benefits. The employer is in no better or poorer position than any other creditor of employee and accordingly its claim may not be charged against or deducted from its obligation to pay compensation. Crane Co. v. Loome, 25 Ill App2d 61,165 NE2d 728.

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

Judgment affirmed.

SCHEINEMAN, J., concurs.

ALLOY, J., dissents with opinion.

ALLOY, J.,

dissenting.

I must respectfully dissent from the majority opinion in this case.

As noted in the majority opinion, section 5(b) of the Workmen’s Compensation Act (1967 Ill Rev Stats, c 48, § 138-5 (b)) provides that where a third-party tort-feasor causes damage and injury to an employee, then from the judgment or settlement made with such tort-feasor, either with or without suit “from the amount received by such employee . . . there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee . . . including amounts paid or to be paid. . . .” It is also noted that the award of the Commission in the case before us, while it did not make a finding specifically with respect to the $25,000 which was paid to the employee by the State of Illinois, contained the customary language that the employer shall “. . . have credit for all sums of money, if any, heretofore paid petitioner on account of accidental injury sustained on August 10,1959.”

I agree with the majority opinion that a basic policy of the Workmen’s Compensation Act is to free awards under such Act from claims of creditors as against the employee. This is a desirable objective and the cases determining this issue have supported that principle. Another basic objective, however, is stated in section 5(b) referred to herein in which a policy is expressed that an employer should be protected to the extent of payments made by a third-party tort-feasor as a result of the negligence of such third-party tort-feasor which causes injury to an employee. The objective is clearly to afford an employer reimbursement out of any settlement or payment pursuant to judgment as against such third-party wrongdoer. There is thus a consistent application of the Workmen’s Compensation Act policy, in that the employee receives his compensation, and, to the extent of payment by a third-party wrongdoer, the employer is reimbursed in the amount of such payment. The net effect is that the employee receives all of his compensation payments and the policies of the Workmen’s Compensation Act are in fact carried into effect. The opinion as drafted, however, in effect states that if the employer has not perfected either a lien or acted through intervention in the employee’s action, he is placed in the status of a general creditor.

As observed in the opinion, there seems to be no direct precedent applicable to the particular issue before us. We are apparently all in agreement that section 5 (b) does not limit the employer to only certain methods of reimbursement. In the case of Employers Mut. Cas. Co. v. Trimon Mut. Elevator Co., 71 Ill App2d 124, 217 NE2d 391, and in Sjoberg v. Joseph T. Ryerson & Sons, 8 Ill App2d 414, 132 NE2d 56, and Arnold Lies Co. v. Legler, 26 Ill App2d 365, 167 NE2d 813, as noted in the majority opinion, the right of the employer to reimbursement from a third-party tort-feasor is clearly established. As noted in the Trimon Elevator case, supra (at page 136), the court states in discussing section 5 (b) that the employer “may join in the action; however, this does not provide an exclusive remedy. To hold this as an exclusive remedy on the part of the employer would to a great extent cut down to the very minimum a protection which the act intended to give him.” Again, the court states (at page 130) in the Trimon Elevator case:

“In an interpretation of the statute the court must supply that which is missing from the statute in a manner consistent with the overall purpose of the act and consistent with other cases.”

As noted, the overall purpose of the Act is first to assure the employee of receiving the workmen’s compensation payments as specified by the Act. Another purpose expressed in section 5(b) is to afford the employer all possible protection to obtain reimbursement from the proceeds received from the third-party tort-feasor whether by settlement or otherwise. The language of section 5 (b) itself simply specifies that an employer “may have or claim a lien upon any award, judgment or fund” and also provides that the employer “may at any time thereafter join” in the third-party action. There is nothing mandatory in such language but the Act simply provides for an optional procedural method of protection of the employer.

The language of the Industrial Commission in the present case even though general in nature should not be ignored. That language was not limited to payments made by the employer but refers specifically to “all sums . . . paid petitioner.” A reasonable construction would be that the $25,000 paid by the State of Illinois as a tort-feasor was included in the language of such award, and that the employer should receive credit for such payment.

It is clear that the case of Crane v. Loome, 25 Ill App2d 61, 165 NE2d 728, referred to in the opinion, does not require the conclusion which was reached in the opinion. In the Crane case, the court held that the employer could not properly deduct amounts which it had paid the employee under a pension plan from amounts which it owed the employee under the Workmen’s Compensation Act. This was a 1960 case and § 138-8 (j) 2 (1967 Ill Rev Stats, c 48) now covers that situation. The Crane Co. case did not involve a third-party tort-feasor. An employee is clearly protected in his award from offsetting claims under § 138-21 (1967 Ill Rev Stats, c 48) but this provision does not apply to reimbursement under section 5 (b). On the basis outlined, a consistent application of the statutory provision, in the light of the order of the Industrial Commission, should give effect to the order of the Commission and its provision for allowance of credit. Unless this construction is adopted, in many cases, through settlement or payments otherwise made directly to the employee, the employer’s right of reimbursement under section 5(b) would become meaningless.

For the reasons stated, the amount received by the employee from the third-party tort-feasor, the State of Illinois, but not paid to the employer, should be permitted to be taken as a credit as against the employer’s obligation to pay benefits under the Workmen’s Compensation Act. This cause should, therefore, be reversed and remanded with directions to the trial court to allow such credit subject to requiring that employer pay his share of the attorney fees.


author: EBERSPACHER, J.

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Petitioner-Appellee, v. Virgil King, Rosa King, Defendants-Appellants, R. S. Eastwood, et al., Defendants-Appellees.
    Gen. No. 68-46.
    Fifth District.
    August 6,1969.

      C. Robert Hall, of Carbondale, for appellants.
    William J. Scott, Attorney General of State of Illinois, of Springfield, and Robert L. Lansden, Special Assistant Attorney General, of Cairo, for appellees.
   EBERSPACHER, J.

This is an eminent domain proceeding by the Department of Public Works and Buildings of the State of Illinois for the acquisition of right-of-way for Interstate Route 57. Several tracts, all in Pulaski County, were included in the petition for condemnation but all were treated separately. The defendants, Virgil King and Rosa King, husband and wife, have appealed from a judgment on the verdict wherein the jury awarded the defendants $3,978 for the land taken and $1,500 for damages to the remainder.

The defendants have raised two issues in their appeal: First, did the trial court commit error in permitting the petitioner to amend its petition and in denying the defendants a general continuance in order to meet the amendment and a second, did the trial court commit error in permitting certain opinion evidence offered on behalf of the petitioner ?

It appears from the record that the Petitioner, hereinafter referred to as the State, filed its petition for condemnation on June 25, 1965. The petition sought to condemn a strip of property of the defendants containing 15.3 acres and was referred to in the petition as Tract No. 27. The original petition described an 85-acre area owned by the defendants of which Tract No. 27 was a part.

At the same time the petition was filed, a motion was filed for immediate vesting of title, in accordance with the provisions of the Eminent Domain Act. The motion was allowed, and on July 20, 1965, after due appraisal, preliminary just compensation was allowed in the sums of $4,500 for the land taken, and $1,500 for damages to the remainder of the 85 acres. These amounts were withdrawn by the defendants on August 31,1965.

On December 12, 1967, the case was called for trial. The defendants had filed no answer or cross-petition. A jury was selected and taken to view the premises on that date.

On December 13, 1967, the trial reconvened and the State introduced its evidence. The State presented three witnesses. All three of the witnesses’ testimony concerning the King farm referred to one contiguous piece of property operated as one economic unit consisting of 272 acres. The 272 acres consisted of the 85 acres generally described in the petition, of which Tract No. 27 was a part and 187 acres which had a common corner with the 85 acres. Multiple exhibits were introduced without objections, including maps, sketches, and aerial photographs, each depicting the King farm as consisting of 272 acres. Of the three witnesses testifying for the State, two testified as to the value of the property taken, i. e., Tract No. 27. The value of Tract No. 27 as opinioned by the witnesses was based upon their opinion of the value of the whole farm which they continuously referred to as consisting of 272 acres. Both during direct examination and cross-examination by the defendants all evaluations of the King farm were of the entire 272 acres.

After the State had rested its case the defendants then proceeded with their evidence. The first witness in the defendants’ case was the defendant, Virgil King. During the cross-examination of the defendant by the State, the defendant was asked to make a comparison of the 85-acre tract to the 187-acre tract. The defendants objected on the ground that the parties were governed by the pleadings and the general description as contained in the State’s petition described only the 85-acre tract. Thereupon, the State moved and was granted, over the objection of the defendants, leave to amend the general description of the petition to include the 187 acres. The defendants then moved for a general continuance purportedly to meet the amendment. The Court denied the motion for a general continuance but granted the defendants fifteen minutes to confer with their witnesses.

There is ample authority for permitting an amendment to a petition for condemnation during the course of the trial. Union Elec. Power Co. v. Sauget, 1 Ill2d 125, 132, 115 NE2d 246, c 45, par 5, Ill Rev Stats 1967. In the present case the State proceeded on the theory that the King farm, or the total economic unit of which Tract 27 was a part, consisted of 272 acres. The maps, drawings and aerial photographs which were introduced by the plaintiff, with no objection by the defendants, depicted the defendants’ farm as 272 acres. All three of the witnesses testifying in behalf of the State consistently referred to and based their evaluation on the total 272-acre King Farm. The Defendants’ cross-examination also consistently referred to the entire King Farm. Accordingly, the defendants’ allegation that the amendment took them by surprise and materially changed the proceedings is without any basis in the record.

We can hardly see how the defendants were prejudiced, particularly in light of the fact that they had filed no Answer or Cross-Petition. If anything, the amendment allowed the defendants an opportunity to prove damages to a greater portion of the property not taken. Before the amendment the defendants were limited to proof of damages to the property not taken in the 85-acre tract, whereas after the amendment the defendants had the opportunity of proving damages to the entire 272 acres which had been occasioned by the condemnation of Tract No. 27. The defendants were certainly not surprised inasmuch as all of the testimony, exhibits, and evaluations were as to the entire 272 acres. Under these circumstances we do not feel that the Court abused its discretion in denying the defendants a general continuance.

The defendants next contend that the trial court erred in permitting one of the State’s witnesses to testify as to land values. The gist of the defendants’ argument is that there was no showing of the particular witness complained of being familiar with the property being condemned or having any peculiar means of forming an intelligent and correct judgment as to the value. It appears from the record that the particular witness was a staff appraiser for the Division of Highways for the State of Illinois; that he was familiar with and had been on the King farm and had examined the farm and its improvements; that he had personally studied records of conveyances in Pulaski County, and had visited various farms and other types of property in Pulaski County to arrive at values; that he had visited every parcel of land involved in the Interstate 57 construction program in Pulaski County and was personally familiar in general with the land in Pulaski County through which Interstate 57 travels, having been employed in its right-of-way acquisition for the past 15 years.

The defendants’ argument may be answered very succinctly by the following excerpts from Trustees of Schools of Tp. No. 42, Board of Education of School Dist. No. 57, Cook County v. Schroeder, 23 Ill2d 74, at page 78, 177 NE2d 178, wherein the Court stated:

“It has often been held that the question of the market value of land is not a question of art or science, but that it is a question of fact to be proved like any other fact, and that any person who is acquainted with the land and has knowledge of real estate values in the vicinity is competent to testify as to its value (Trunkline Gas Co. v. O’Bryan, 21 Ill 2d 95; Hlinois Power and Light Corp. v. Talbott, 321 Ill 538). We have held, too, that the question of the qualification of witnesses as to the value of property rests largely with the discretion of the trial court, (City of Geneseo v. Schultz, 257 Ill 273), and that the extent or amount of the witness’s experience goes only to the weight that is to be given his testimony. (Trustees of Schools v. Krance, 5 Ill 64.)”

All the facts and circumstances compel the conclusion that the defendants received a fair and complete trial upon the question of value of property taken and the damages to the remainder. The judgment of the Circuit Court of Pulaski County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: GOLDENHERSH, P. J. MORAN, J.,

text:
    Richard B. Mensen, Plaintiff-Appellee, v. Baltimore & Ohio Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 68-103.
    Fifth District.
    August, 7,1969.

      MORAN, J., dissenting.
    Roberts, Gundlach & Lee, of East St. Louis (Richard E. Boyle, of counsel), for appellant.
    Bernard Heiligenstein, of Carlyle, and C. E. Heiligenstein, of Belleville, for appellee.
   GOLDENHERSH, P. J.

Defendant, Baltimore & Ohio Railroad Company, appeals from the judgment of the Circuit Court of St. Clair County entered upon a jury verdict in the amount of $104,250.

Plaintiff’s complaint, as amended, purporting to state a cause of action based upon the Federal Employers’ Liability Act (45 USCA 51, et seq.) alleges that plaintiff was employed as a signal maintenance man and while he was changing a tire on a truck used in connection with his work, the truck fell upon him. It charges that defendant was negligent in that it provided, equipped and maintained its truck with faulty or defective tires or tubes, and failed to remove or replace said faulty or defective tires when defendant knew or should have known “that the same would subject the plaintiff to additional risk and hazard.”

Plaintiff’s duties required him to test flasher lights and signals in an assigned area and do whatever was necessary to maintain them in working order. He regularly used a truck provided by defendant, was in charge of its maintenance, and could use a credit card to buy gasoline, oil and filters. If tires were needed he was required to contact his supervisor who would issue a requisition for their purchase.

As the result of what plaintiff described as “separations” around the seams of the tubes, tires on the truck became flat on April 5, 1963; in 1964 on February 14, 17, 24, May 26, July 30, September 10, December 4, 5, 16; and in 1965 on January 30 and February 3.

Over a period of time plaintiff made 3 written, and 4 oral requests for new tubes. These requests were directed to R. V. Smith, Signal Supervisor in defendant’s shop in Washington, Indiana. Smith, for various reasons declined to authorize the purchase except that on December 10, 1964, he permitted plaintiff to buy two new tubes which he was instructed to put on the front of the truck. On December 16, 1964, plaintiff requested permission to buy two snow tires.

On the morning of February 3, 1965, he had a flat tire. This involved the right rear tire which had previously gone flat, and had been repaired on January 30. He stopped, jacked up the truck and while he was removing the tire, the tire hit the fender of the truck, the truck slipped off the jack, and plaintiff was pushed backwards. There was nothing wrong with the jack, and plaintiff had previously used it four or five times. The tube was repaired that night and continued in use until defendant obtained tubeless snow tires for the truck several days later.

He reported the occurrence to Mr. Smith who said “I was scared something like that might happen.” Mr. Smith died a year before the trial.

Defendant contends the circuit court erred in denying its motions for directed verdict and judgment n. o. v., and argues there is no evidence that any negligence on its part played any part, even the slightest, in producing plaintiff’s injury.

The most recent comprehensive expressions of the Supreme Court with respect to the determination of negligence and causation in cases based on the Federal Employers’ Liability Act are stated in Gallick v. Baltimore and O. R Co., 372 US 108, 83 S Ct 659; and Rogers v. Missouri Pac. R. Co., 352 US 500, 77 S Ct 443. The Act does not, howevex, make the employer an insurer against injuries suffered by its employees, Wilkerson v. McCarthy, 336 US 53, 69 S Ct 413; Inman v. Baltimore & O. R. Co., 361 US 138, 80 S Ct 242; and to hold the employer liable it is necessary that there be evidence that his negligence played a part in causing the employee’s injury. New York, N. H. & H. R. Co. v. Henagan, 364 US 441, 81 S Ct 198.

We have examined the many cases cited by counsel and those collected in notes found at 98 ALR2d 653, 30 ALR2d 1192, and in the annotations to 45 USCA 51. Any attempt at analysis, comparison, or reconciliation would serve only to further confuse an already chaotic situation.

In this case, assuming defendant was negligent in permitting a defective inner tube to remain on the truck, the evidence, in our opinion, fails to prove that its negligence caused plaintiff’s injury. Nicholson v. Erie R. Co., 253 F2d 939 (CA 2nd); Dessi v. Pennsylvania R. Co., 251 F2d 149 (CA 3rd); Simpson v. Texas & New Orleans R. Co., 297 F2d 660 (CA 5th).

The performance of his duties required plaintiff to maintain the truck, including the changing of tires. It is not contended that defendant failed to furnish him with the tools necessary to change the tire, and the most the evidence shows is that he may have been required to perform the particular task more often than if the tires were perfect, or that “but for” defendant’s negligence plaintiff would not have been injured.

In a philosophic sense the existence of the flat tire may have played a part in producing plaintiff’s injury in that had it not occurred, there might have been no occasion for changing the tire. What occurred here, however, could as well have happened while plaintiff was mounting a new tire furnished in compliance with his request, or in a routine rotation or replacement of tires.

We have examined the record and hold that the evidence was insufficient to take to the jury the question of whether defendant’s negligence played a part in causing plaintiff’s injury.

Because of the conclusion reached, it is not necessary to consider defendant’s remaining claims of error.

For the reasons stated the judgment of the Circuit Court of St. Clair County is reversed.

Judgment reversed.

EBERSPACHER, J., concurs.

MORAN, J.,

dissenting.

In my opinion the judgment of the Circuit Court of St. Clair County in this case should be affirmed under the rationale of Gallick v. Baltimore & O. R. Co., 372 US 108, 83 S Ct 659.


text:
    Charles Keeshin, Plaintiff-Appellant, v. Roger L. McDougal, Kenneth Sandahl, and Lee Roy Sandahl, Individually, and d/b/a Sandahl Farm Service, Defendants-Appellees. Roger McDougal, Plaintiff-Appellee, v. Charles Keeshin, Defendant-Appellant.
    Gen. No. 68-182. (Abstract of Decision.)
    Second District.
    August 8,1969.
    Thomas, Kostantacos and Traum, of Rockford, for appellant; French, Davitt & Greene, of Rockford, for appellees.
   Opinion by PRESIDING JUSTICE MORAN. Not to be published in full.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois ex rel. Peter J. Knaus, et al., Plaintiffs-Appellees, v. Village of Hinsdale, an Illinois Municipal Corporation, Defendant-Appellant.
    Gen. No. 69-11.
    Second District.
    August 12,1969.

      Klein, Thorpe, Kasson & Jenkins, of Chicago, for appellant.
    Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The trial court entered judgment in Quo Warranto ousting the Village from certain territory alleged to have been annexed in 1923, and setting aside a 1967 annexation which would thereby lack contiguity to the Village.

The Village, appealing from the judgment, urges that there is no omission between the west boundary of the 1923 annexation and the east boundary of the 1967 annexation; but that, in any event, plaintiffs are estopped because of acquiescence in the exercise of jursidiction by Hinsdale in the disputed area for some 40 years.

Plaintiffs argue that no ambiguity exists with reference to the boundary description in the 1923 ordinance, and that the description in that ordinance clearly creates an omitted area between the territory described in the two ordinances; and that the Village did not sustain its burden of establishing de facto jurisdiction over the allegedly omitted area by a preponderance of the evidence.

Petitioners are the majority of property owners of record and the majority of electors in the disputed territory. Their request to the Attorney General and to the State’s Attorney to institute the proceedings having been denied, they obtained leave of court to file the suit pursuant to Ill Rev Stats 1967, c 112, § 10. After a hearing before the court a judgment order of ouster was entered as to the disputed territory under the 1923 ordinance and the court also refused to vacate a previous order denying the annexation under the 1967 ordinance because of lack of contiguity.

The evidence consisting of the map accompanying the 1923 ordinance, together with expert testimony of petitioners’ surveyor, would support a finding of fact that the description in the 1923 ordinance resulted in a substantial undescribed area between the 1923 and the 1967 annexations sufficient to support a judgment of ouster. We distinguish People ex rel. Chicago Title & Trust Co. v. City of Des Plaines, 76 Ill App2d 243, 222 NE2d 1 (1966). The gap between the areas annexed by the two ordinances in this case was a substantial area which could not be considered de minimis within the rule of the Des Plaines case.

We reverse the judgment below, however, because we believe it to be against the manifest weight of the evidence as we believe the Village has justified its authority by the exercise of de facto jurisdiction in the disputed area over a period of some 40 years with acquiescence of the public.

The answer of the Village, in addition to denying a gap in contiguity in the description of the territory sought to be annexed, alleged as an affirmative defense that the Village has “exercised jurisdiction over the area . . . for over 40 years ... in the following manner:

“A. The property has been zoned by the Village of Hinsdale, a copy of the zoning map of the Village of Hinsdale being attached hereto as Exhibit ‘A.’ There is no zoning classification for the subject property other than that established by the Village of Hinsdale Zoning Ordinance.
“B. Street addresses have been established in the area pursuant to a 1932 Ordinance of the Village of Hinsdale.
“C. A storm sewer has been established in this area pursuant to a 1958 General Obligation Bond issue of the Village of Hinsdale. In addition, there have been five other General Obligation Bond issues of the Village of Hinsdale during the 40-year period where it has been represented to purchasers that the subject property is included within the Village boundaries. Taxes for said General Obligation Bond issue have been and are being extended on the subject property.
“D. Water Revenue Bonds have been issued by the Village of Hinsdale during the 40-year period and it has been represented to purchasers that water users in the subject area are included within the corporate limits of the Village of Hinsdale.
“E. Special assessments have been levied by the Village of Hinsdale on property in the subject area.
“F. The Village of Hinsdale has provided water service to a portion of the subject area for over 10 years. This is the only water service available to owners of property in the subject area.
“G. Real estate taxes have been assessed by the Village of Hinsdale and extended by the County of DuPage on the subject property for about 40 years.
“H. Building permits have been issued by the Village of Hinsdale for residences constructed in the subject area.
“I. The Village of Hinsdale has provided police and fire protection for the subject area for about 40 years.
“J. Washington Street, as included in the subject area, has been maintained by the Village of Hinsdale for 40 years.”

No reply to the affirmative defense was presented until the date of the trial, some months after the filing of the pleading. On the trial date plaintiffs asked leave to file the reply, which admitted “that the Village has performed some minimal municipal services for a period of time, but they have no knowledge sufficient to form a belief as to the representations made in behalf of the Village and ask for strict proof thereof.”

Counsel for the defendant objected to the filing of the reply or in the alternative asked for a continuance to bring in proof of the allegations which it had considered admitted for the purpose of trial. In a colloquy before the court, plaintiffs’ counsel stated “even minimal services should suffice to enable him to make out a case.” The court thereupon permitted the filing of the reply and required the parties to proceed. Respective counsel then discussed a stipulation of fact before the court. The discussion was framed with reference to the allegations of the affirmative defense which we have quoted above:

Zoning: Plaintiffs’ counsel stipulated, “If you say it is zoned, I presume it has been zoned.”

Street Addresses: Plaintiffs’ counsel agreed, “But if you say it is true, I will admit it.”

Storm Sewers: Mr. Knaus, one of the plaintiffs, admitted that a storm sewer passed through the property in dispute, but stated “It is for Hinsdale.” He also admitted that no drainage was needed in the area, stating “We are up on top of a hill.” Counsel for plaintiffs thereupon stipulated, “We will admit it, subject to that understanding.”

(Plaintiffs refused to stipulate to the issuance of water revenue bonds, and the confirming of special assessments in the disputed area. However, counsel for plaintiffs had, in an introductory statement, agreed that a water main was established in the area.)

Assessment and extension of real estate taxes by the Village: Was stipulated, “subject to the qualification that two of the property owners are objecting to it.”

Issuance of building permits: That the Village had issued building permits for the three residences built in the subject area was stipulated in the language of plaintiffs’ counsel, “I assume it would.”

Police and Fire Protection: Was admitted to the extent that police cars of the Village passed through the area. However, the witness Knaus stated that there had been no fires and no police work in the area.

Maintenance of Washington Street (The disputed boundary line of the 1923 annexation): Was admitted in the language of plaintiffs’ counsel that he was prepared to stipulate that “The road is improved.” Knaus in his testimony conceded that the Village had “thrown blacktop on the chuck holes” on occasion.

At one point in the recital of the stipulations, counsel for plaintiffs stated “It seems to me that if we have agreed to everything up to that point, certainly you have enough municipal services.”

Quo Warranto is a high prerogative writ and courts in administering the remedy should proceed with due deliberation and caution and with the exercise of sound discretion, considering whether the public interest will be served or damaged by the writ and the necessity for and the policy of allowing the remedy. People ex rel. Adamowski v. Wilson, 20 Ill2d 568, 578-9, 170 NE2d 605 (1960). In a quo warranto action to test the validity of an annexation by a municipality acting under its legislative powers, the latter must either disclaim or justify its right to the territory in dispute; and in justifying, the Village must assume the burden of proving either its title or facts showing such acquiescence by the public in the exercise of jurisdiction by the municipality as should bar the prosecution of the suit. People v. City of Peoria, 166 Ill 517, 526, 46 NE 1075 (1897); People v. City of LeRoy, 293 Ill 278, 281,127 NE 695 (1920); People ex rel. Town of Richwoods v. Peoria, 80 Ill App2d 359, 363-4, 225 NE2d 48 (1967).

In People v. Pike, 197 Ill 449, 454, 64 NE 393 (1902), the court stated:

Municipal corporations being required by public necessity, the law itself, for the purpose of strengthening the infirmity of evidence and upholding the public peace and the security of private property, will indulge, after long continued use of corporate powers and the public acquiescence, in presumptions in favor of their legal existence. The policy of the law is to sustain rather than to defeat them. (Jame-son v. People, 16 Ill 257; Chicago City Railway Co. v. People, 73 id. 541.)

The defendant relies principally on People v. LeRoy, supra. In that case, the quo warranto petition had charged the city with unlawfully exercising corporate powers for 13 years over a tract of land which had not been properly annexed. The Supreme Court found the annexation void, but affirmed the lower court’s denial of the writ because it found that by long acquiescence a condition had arisen that great injury or injustice would result in the allowance of the writ, so that the remedy was properly refused. The manner of the exercise of authority admitted by the pleadings included the levy and collection of taxes, the making of public improvements by special assessments, including judgments of confirmation; the issuance of bonds by the city upon the votes of the inhabitants of the disputed territory as well as the other inhabitants of the city; the construction of pavements, watermains and sewers improving the property in the disputed area, all without objection for more than 10 years.

The court concluded (on page 284):

No benefit can result from cutting off from the city the territory in question after the many years of peaceful and satisfactory union, universally acquiesced in.

Plaintiffs seek to distinguish the facts admitted by the pleadings in the LeRoy case from the facts admitted by stipulation in this case, arguing that there was a wealth of definite factual details in the LeRoy case opposed to the recital of a “vague” stipulation of acts of jurisdiction in this record. They argue that a “stipulation, like a presumption, operates prospectively and not retroactively, and, while the petitioner stipulated that certain minimal acts had been done by the Village, it did not stipulate regarding the length of time any given act of jurisdiction had been performed, nor did it stipulate regarding the degree or quality of the service being performed.”

For example, it is suggested that the record does not show when the property was zoned, and plaintiffs suggest that it could have been zoned after the passage of the 1967 ordinance. We are not persuaded by the argument in view of the manner in which the stipulation was recited in terms of the allegations in the affirmative defense, stating acts of jurisdiction over a 40-year period.

Similarly, it is suggested that, although the plaintiff admitted that a storm sewer passed through the property, “there was no reference to a 1958 general obligation bond issue, nor was it admitted in evidence.” The stipulation made it unnecessary to offer further proof of that issue. Plaintiff further suggests that the storm sewer might have been installed and assessments made under the provisions of Ill Rev Stats 1967, c 24, § 11-126-7 providing for local improvements on property beyond corporate limits. The 1958 bonds referred to in the affirmative defense, however, could not have been issued under the statute referred to inasmuch as it was not enacted until 1963.

In addition, the court mentioned five other bonds over the 40-year period. While plaintiffs now suggest that the date of issue was not specified and that it is not clear whether they covered only the area admittedly in Hinsdale or the intervening area as well, there was no such limitation referred to in the discussion of the stipulation in the trial court.

Plaintiffs also suggest that the stipulation as to the providing of water service in the area by the Village is vague because this also might have been done under the provisions of chapter 24, section 11-126-7, supra. Again, the stipulation was not limited in the trial court and, reasonably considered, the stipulation dispensed with proof of the exercise of jurisdiction in the nature of the providing of water service in the disputed area over the 10 years alleged in the affirmative defense.

Likewise, the attempt to limit the stipulation of the levying of real estate taxes in the disputed area by arguing that the residences are partially within the village and partially in the intervening area and “it is impossible to tell from the stipulations whether the village levied taxes on the whole of each residence or only that portion admittedly within the village,” is not persuasive. The allegation referred to the levying of real estate taxes in the subject area over a 40-year period and this was proved by the stipulation.

It is our opinion that in the context of the record, plaintiffs for the first time on appeal are attempting to limit the reasonable intendment of stipulations entered into at a time when defendant was taken by surprise at the trial and was asking for a postponement to offer proof of the allegations of the affirmative defense. It is apparent from the record that the stipulations were assumed to allow the trial to go on without the necessity of further proof as to those allegations to which plaintiffs stipulated.

While it is true that the Village may not have maintained roads in a substantially undeveloped area consistent with the standard in the adjoining area, we believe that the record shows that the Village has exercised municipal jurisdiction in the disputed area for over 40 years, and that the trial court’s finding to the contrary is against the manifest weight of the evidence. In the context of the City of LeRoy case, supra, we can perceive no benefit that would result from cutting off from the city the territory in question after the many years of peaceful union without objection.

The judgment below will be reversed.

Reversed.

MORAN, P. J. and DAVIS, J., concur.