author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Curtis Lewis (Impleaded), Defendant-Appellant.
    Gen. No. 52,092.
    First District, Fourth Division.
    February 28, 1969.
    Rehearing denied September 8, 1969.

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

delivered the opinion of the court.

CHARGE

Unlawful sale of a narcotic drug. Ill Rev Stats (1963), c 38, § 22-3.

DEFENSE AT TRIAL

Insanity. Ill Rev Stats (1963), c 38, § 6-2.

JUDGMENT

After a jury trial, defendant was found guilty and sentenced to a term of 10 to 20 years.

POINTS RAISED ON APPEAL

(1) A comment by the State’s Attorney and an inadequate instruction deprived defendant of a fair and unprejudiced competency hearing.

(2) Defendant was prejudiced by being denied an opportunity to interview the informer-purchaser-witness without the State’s Attorney being present.

(3) The court erred in regard to jury instructions.

THE TRIAL

In October 1964, when the trial was scheduled, the State obtained a continuance on the ground that it could not locate James Jordan, the informer-purchaser. At the commencement of the trial on December 14, 1964, the prosecution stated, however, that it was then prepared to call him as a witness. Defense counsel requested an opportunity to interview the witness before he took the stand, since he had been unable to locate the witness prior to trial. The prosecution consented, provided an Assistant State’s Attorney could be present during the interview. Over objection, the court ordered that defense counsel could conduct the interview, but only in the presence of the State’s Attorney.

The principal witnesses for the State were the informer who purchased heroin from defendant, and police officers who arrested defendant at the scene while he was still in possession of the marked currency which had been used for the purchase.

For the defense, a part of defendant’s military record was introduced into evidence, showing a history of mental illness while in service. A psychiatrist also testified that defendant had a record of three periods of hospitalization for mental illness, each at a time when defendant was being charged with a criminal offense; that in his opinion defendant could not appreciate the criminality of his actions at the time of the current offense, nor could he conform his conduct to the requirements of law. In rebuttal, a psychiatrist gave a contrary opinion on behalf of the State.

THE COMPETENCY HEARING

In the course of the trial, the court, on its own motion, called a separate jury to determine defendant’s competency to stand trial. Ill Rev Stats (1963), c 38, § 104-2 (b). At this hearing a psychiatrist testified on behalf of the State, and defendant himself was the only other witness. When the jury found defendant competent, the trial proceeded.

OPINION

(1) Defendant claims that he was denied a fair competency hearing because of a prejudicial statement made to the jury by the State’s Attorney. Defendant also claims the court erred by failing to instruct the jury that the State had the burden of proof.

The statement in question was made during the State’s Attorney’s closing argument when he said, “If he [defendant] is declared competent, he will stand trial, as he deserves to stand trial, for the sale of narcotic drugs.” We do not find unfair prejudice against defendant from this statement.

The inquiry at a competency hearing is the defendant’s capacity to understand the nature and purpose of the proceedings against him and to assist in his defense against the crime charged. Ill Rev Stats (1963), c 38, § 104-1; People v. Burson, 11 I112d 360, 143 NE2d 239. The jury here knew that the defendant was in custody and charged with some crime. The specific nature of the crime was not raised before the jury until the State’s closing comment. The testimony concerning a criminal charge was sufficient, however, to eliminate any unfair prejudice from this comment. The testimony of Dr. Haines relating to the competence of defendant to understand the charge against him. was uncontradicted and substantially supported the jury’s determination of competency. We find nothing in the State’s Attorney’s argument which deprived defendant of a fair hearing on the issue before the jury.

Defendant also claims error because the jury was not instructed that the State had the burden of proving defendant competent, the court having instructed the jury only as to the standard of competence required to stand trial. Defendant offered no burden-of-proof in struction, and at the outset of his closing argument the State’s Attorney expressly declared that the State had this burden. It would have been better if the court had instructed on burden of proof, but in the nature of the testimony heard, the burden of proof was so clearly carried by the State that here, too, we fail to see that defendant was prejudiced. It may also be noted, collaterally, that defendant’s own psychiatrist, later at the trial, gave opinion testimony which had the effect of establishing defendant’s competency to stand trial.

(2) Defendant next contends that he was obstructed in the preparation of his defense by the ruling of the court that defense counsel could interview the informer-purchaser only in the presence of the Assistant State’s Attorney. Prior to the time of trial, neither the State nor the defense had been. able to locate this witness. His name had been included in the list of witnesses which had been furnished to the defense, but he could not be found at the address shown thereon.

Generally, a prosecution witness need not grant an interview to defense counsel unless he chooses to do so. People v. Mason, 301 Ill 370, 378-379, 133 NE 767; United States v. Bowens, 318 F2d 828; People v. Mitchell, 16 111 App2d 189, 147 NE2d 883; People v. Duncan, 261 Ill 339, 103 NE 1043. As stated in People v. Touhy, 361 Ill 332, 349, 197 NE 849, “we know of no rule which would authorize the court to compel a witness to be examined in private by counsel for either side of a case, especially in the absence of the consent of the witness. . . In its discretion, a court may, as in this case, direct that a witness be made available for questioning, and in such a circumstance it would not be unreasonable to direct police protection for the witness, as was suggested by defense counsel in this case. The personal security of the witness would seem to be the key to the presence of a third person, rather than the special legal knowledge which would be the factor added by the presence of a State’s Attorney.

It is improper for a State’s Attorney to direct a witness not to answer questions of defense counsel. If the witness in this case, however, had been available for interview during the entire pretrial period, he might, on his own initiative, have declined to talk to defense counsel, and the matter would then have been terminated. Or he might have elected to answer the questions of defense counsel, with a similar result. It has not been suggested by the State that in such a situation the State would have been entitled to have a State’s Attorney present. The circumstances of the present case should not require a different rule. We conclude that the order of the court in this case did not, under Mason, supra, constitute sufficient basis for reversal. Nevertheless, since this case will be remanded for the reasons set forth in (3) below, we express our view that the better practice would limit the condition of the court’s order to protection of the witness against injury, threat, intimidation, and the like, all of which could be supplied by the sheriff or the police.

(3) Finally, defendant contends that the jury was inadequately instructed on the defense of insanity, and the burden and quantum of proof in regard thereto. As bearing on the issue of sanity, defendant also complains that “[n]o instruction named the elements of the crime.” On these points we find reversible error which requires a new trial.

In order that the jury not be left to its own speculation or improvisation, it is essential that it be correctly and fully instructed by the court concerning the elements of the crime charged, the defense of insanity, the burden of proof as to the elements of the crime and as to the sanity of defendant, and the quantum of proof required on all issues to support a verdict of guilty. If all these matters were adequately covered in this case, they must be found in the following instructions, part of which was tendered by the State and part by the defense:

(1) Throughout this case the burden of proving the guilt of the defendant beyond all reasonable doubt is on the State and the law does not require the defendant to prove his innocence.
(2) If you are convinced from all the evidence in the case beyond all reasonable doubt that the defendant is guilty as charged in the indictment, it is your duty to find such defendant guilty. If you are not convinced from the evidence beyond all reasonable doubt of the guilt of the defendant, it is your duty to find such defendant not guilty.
(3) The Jury is instructed that it is incumbent upon the prosecution to prove every material allegation of the indictment as therein charged. Nothing is to be presumed or taken by implication against the defendant. The law presumes him innocent of the crime with which he is charged until he is proven guilty by competent evidence; and if the evidence in this case leaves upon the minds of the Jury any reasonable doubt of the defendant’s guilt, the law makes it your duty to find him not guilty.
(4) The Court instructs the Jury that the defendant may, or may not, take the stand as he or his counsel see fit and deem proper. The fact that the defendant does not take the stand in this case is not in any way evidence for you to consider as to his guilt. You must decide this case solely upon the evidence that has been given from the witness stand as introduced by the State. You will understand from this instruction that every person charged with a crime is presumed to be innocent, and it is absolutely necessary that the State should convince you, and each of you, beyond all reasonable doubt of the guilt of the defendant as charged in the indictment.
(5) The court instructs the jury in the language of the Statute that it is unlawful for any person to sell any narcotic drug, except as authorized by the Illinois Statute entitled the Uniform Narcotic Drug Act.
(6) The Court instructs the jury that the plea of not guilty made by the defendant is a complete denial by the defendant of each and every fact and allegation contained in the indictment and such plea of not guilty by the defendant puts into issue and dispute by the defendant each and every material allegation contained in this indictment.
(7) The court instructs the jury that a person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
The terms “mental disease or mental defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(8) The jury is instructed that if you find from the evidence that Curtis Lewis at the time of the alleged crime lacked substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law due to a mental disease or mental defect, then he is not criminally responsible for his conduct and it is the duty of the jury to find the defendant, Curtis Lewis, not guilty.
(9) The Court instructs the jury that to warrant a conviction in this case, it is incumbent on the people to establish to the satisfaction of the jury, beyond a reasonable doubt, the existence of every element necessary to constitute the crime charged; and if, after a careful and impartial examination of all the evidence in the case bearing upon the question of sanity or insanity, the jury entertain any reasonable doubt of the guilt of the defendant, at the time of the alleged offense they should give the defendant the benefit of that doubt and acquit him.

The instructions above have been numbered for convenience of reference in this opinion, and we have supplied all the emphasis indicated.

We note, first, that in instruction (2), which was tendered by the State, and instructions (3), (4) and (6), which were tendered by defendant, the jury is referred to the indictment for the purpose of ascertaining the charge against defendant, with the obligation to apply certain rules governing the jury’s consideration of the evidence in regard thereto. If, in addition, the jury had been properly instructed as to the elements of the crime charged, the giving of these instructions would probably not have constituted serious error, even though the instructions would nevertheless have produced far more confusion than enlightenment. A conscientious juror, being directed no fewer than five times to the indictment, and not having that document before him, is left without the guidance which is his due, and the court’s duty, and the juror is then certain to fill the void with his own speculation.

We must determine, therefore, whether, in the above instructions, the jurors were adequately instructed as to the elements of the crime charged. And we find that they were not. Instruction (5) is the one which attempts to do this but fails in two particulars. First, it omits the element of the crime relating to defendant’s mental state; it does not recognize that the offense of selling, etc., is not complete unless done knowingly. See Ill Rev Stats (1963), c 38, §§4-3, 4-5, 22-3; People v. Bussie, 41 Ill2d 323, 324, 243 NE2d 196; and People v. Bolden, 103 Ill App2d 377, 243 NE2d 687, 689. The instruction is also bad because it leaves it up to the jury to decide what exceptions may be “authorized by the Illinois Statute entitled the Uniform Narcotic Drug Act.” Aside from a lack of delineation of those exceptions, the confusion of the jury resulting from this instruction is compounded by the fact that defendant did not argue that he was excused by any statutory exception, and the evidence disclosed none.

This instruction (5) was tendered by the State, was given by the court without objection by defendant, and no other instruction setting forth the elements of the crime was offered. We consider none of these facts to be relevant here, since it was a fundamental responsibility of the court to see to it that the jury not be permitted to deliberate defendant’s guilt or innocence of the crime charged without being told the essential characteristics of that crime. For further discussion of our view on this point, we refer to People v. Davis, 74 Ill App2d 450, 452-457, 221 NE2d 63.

Since we conclude that this case must be remanded for a new trial, we shall comment briefly on other points involving instructions.

The third sentence of instruction (4) is seriously erroneous when used in this case because it excludes from the jury’s consideration the psychiatric evidence introduced on behalf of defendant in support of his insanity defense.

Instruction (7) describes the affirmative defense of insanity (Ill Rev Stats (1963), c 38, § 6-2), but nowhere in the instruction is the rule adequately set forth as to the requirements of proof in this regard. See Ill Rev Stats (1963), c 38, § 3-2. There can be no question in this case that there was “some evidence” of insanity. The jury must therefore have been instructed that a guilty verdict could be supported only if the State had proved beyond a reasonable doubt that defendant was sane at the time of the crime alleged (in addition, of course, to the same quantum of proof as to each element of the crime). No instruction quite does this. Instruction (1) is too general for this purpose and would not be understood by the jury as encompassing the issue of defendant’s sanity. Instruction (2) could be positively misleading in this regard, as it might well authorize a guilty verdict on the basis of the charge in the indictment without consideration of defendant’s sanity. See People v. Munroe, 15 Ill2d 91, 100, 154 NE2d 225. Instructions (3) and (4) are limited by their own terms to the allegations of the indictment. Instruction (8) covers neither burden nor quantum of proof. Instruction (9) comes the closest to covering the issue, but really does not state clearly that the State had the burden of proving beyond a reasonable doubt that defendant was sane at the time of the alleged crime.

DECISION

The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DRUCKER, P. J. and McCORMICK, J., concur.

       Section 22-3 provides in part:
      It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act.
      Section 4-3 reads in part:
      (a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4-4 through 4-7.
      The mental states described in Sections 4-4 through 4-7 are: intent, knowledge, recklessness, and negligence.

       Section 3-2 provides:
      (a) “Affirmative defense” means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
      (b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.
      This section declares the previous case law. People v. Munroe, 15 Ill2d 91, 98, 154 NE2d 225.

       Since the trial of this case, Section 115-4 of the Code of Criminal Procedure has been amended to require special forms of verdict in cases involving the defense of insanity. Ill Rev Stats (1967), c 38, § 115-4(j). Suggested forms for such verdicts are to be found in the recently published IPI — CRIMINAL. Also to be found in that volume are pattern instructions pertinent to all the facets of this case. It is our belief, however, that the IPI instructions numbered 17.01 and 17.02 are incorrect in that they limit the element “knowingly” to cases involving possession and control. In our opinion, this mental state — knowingly—must also be included when an instruction tells the jury that a person violates the statute if he manufuactures, sells, prescribes, administers, dispenses, compounds, or uses a narcotic drug. See footnote 1, above, and People v. Bussie, 41 Ill2d 323, 324, 243 NE2d 196.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    Louis Danzico, Plaintiff-Appellant, v. Beverly Kelly and James Kelly, Defendants-Appellees.
    Gen. No. 51,861.
    First District, Second Division.
    April 22, 1969.
    Rehearing denied July 31, 1969.

      John C. Sands, Erwin Wright, and Jerome F. Dixon, of Chicago, for appellant.
    William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appel-lees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by the plaintiff, Louis Danzico, from a judgment for $2,500 entered in his favor for personal injuries and against the defendant, Beverly Kelly, pursuant to the verdict of a jury. (Prior to trial, the co-defendant, James Kelly, who is the husband of Beverly Kelly, was dismissed from the instant litigation on motion of the plaintiff.) In this appeal, the plaintiff asks that the judgment in his favor be reversed and the cause remanded for a new trial on the issue of damages only, or alternatively, that the judgment be reversed and the cause remanded for a new trial on all the issues. The amount of the jury award in this case is less than the damages incurred by the plaintiff for his paid medical expenses and lost time from work. The facts follow.

This case involves a collision which occurred on November 3, 1958, between an automobile driven by the defendant, Beverly Kelly, and a parked Chicago Transit Authority (hereinafter referred to as C.T.A.) truck. As a result of this collision it was alleged that the plaintiff was knocked off his feet and struck his spine against the street curb. At the time of the accident the plaintiff was engaged in his duties as a C.T.A. laborer and was assisting three co-workers in unloading a heavy, wooden, empty salt box from the rear of the parked truck. The collision occurred at approximately noon on Austin Boulevard at and near its intersection with Bloomingdale Avenue in Chicago. The weather was sunny, dry and clear. The evidence shows that the defendant was driving south on Austin Boulevard and struck the rear end of a parked C.T.A. truck which was in the curb lane of southbound Austin Boulevard at the time. At the time of the collision, the plaintiff was standing on Austin Boulevard and had his back turned to southbound Austin Boulevard traffic. He did not see the car of the defendant approaching. As a result of the collision between the car and the truck, the plaintiff dropped the empty salt box, which he had been partially holding with a coemployee, and was thrown against a curb where he struck his spine.

In his amended complaint, the plaintiff charged the defendant with one or more of the following wrongful acts:

(1) Failed to properly operate and control her automobile considering the traffic and the use of of the roadway.
(2) Operated and controlled her automobile without keeping a good and sufficient lookout ahead.
(3) Failed to give warning to persons properly in the roadway.

In its answer, the defendant denied these allegations and averred that the proximate cause of the plaintiff’s injury was the negligence of the plaintiff and his co-employee in the operation and unloading of the truck at the time of the collision.

At the trial five eyewitnesses to the collision testified. They were the plaintiff; the defendant; and three members of the C.T.A. crew — John Lubner, who drove the truck in question; Joe Lobue, who was standing on Austin Boulevard with the plaintiff and was aiding him in unloading the empty salt box from the truck; and Salvatore Toia, who was on the truck itself and was tipping the salt box at the time of the collision. The other member of the crew, who was on the truck with Toia, had died prior to trial.

The driver of the C.T.A. truck, John Lubner, testified that the accident occurred at the entrance to a viaduct. There was a downgrade in Austin Boulevard as one approached this viaduct traveling south. (Photographs of Austin Boulevard where admitted into evidence to aid the jury in evaluating the physical aspects of the accident scene.) Lubner parked the C.T.A. truck about six feet within the viaduct. His truck’s front door on the right side was parallel with the viaduct’s first concrete pillar. Lubner further stated that he then activated a mechanism which caused both rear lights of the truck to blink on and off. Earlier that morning, the crew had wired one red flag on each side of the truck’s rear. There were also red flags in the truck which were bottomed in separate stands.

As this witness was leaving his truck from the curb lane side, the collision occurred. He regained consciousness at the scene of the accident and was taken to a hospital. He stated that he did not hear any horn or screeching of brakes before the impact nor was any warning given. He did not observe the plaintiff taking the salt box off the back end of the truck. Before the accident occurred, the plaintiff had walked to the rear of the truck, however. The empty salt box in question weighed 250 or 300 pounds. When the crew unloaded salt boxes, they dropped the truck’s tailgate by loosening the supporting chains so that the tailgate was then even with the body of the truck. The salt boxes were then pushed from the body of the truck, onto the tailgate, and eventually to the street. Two men stood on the truck and two other men stood in the street gripping each side of the salt box as it was lowered to the street’s surface.

Joe Lobue corroborated Lubner’s testimony regarding the rear red lights of the truck blinking on and off and the red flags being wired to each side of the truck at its back end. In addition, Lobue stated that when Lubner stopped the C.T.A. truck, it was facing south and was four to six feet into the viaduct. The plaintiff then took a red flag, which was about four feet high and positioned in a stand, and placed it on Austin Boulevard about twenty-five or thirty feet behind the truck, which had been parked in the right curb lane. When the collision occurred, the plaintiff and this witness were on Austin Boulevard and were holding opposite ends of a salt box which was being tipped from the truck by two co-workers. The plaintiff was in the lane closest to the curb when a car struck the parked truck and pushed the C.T.A. vehicle forward. Lobue did not see the car approaching as he had his back to it. He did not hear anything before the collision, and after the truck was struck, he saw that the salt box was lying on top of Salvatore Toia.

Salvatore Toia testified that Lubner parked the truck one quarter of its length inside the viaduct and three quarters outside the viaduct. This witness also saw the plaintiff put a red flag, bottomed in a stand, on Austin Boulevard about twenty-five or thirty feet behind the truck. This was done after the vehicle had stopped. When the car of the defendant struck the parked truck, the salt box was near the edge of the tailgate. The impact of the collision caused the chains supporting the tailgate to break which in turn lowered the tailgate to a vertical position and the salt box fell to the street pinning this witness beneath it. He too was taken to the hospital.

The defendant, Beverly Kelly, was called by the plaintiff as an adverse witness and testified that she had traveled on Austin Boulevard before; that she was aware of the viaduct and the downgrade in the street when traveling southbound; that she was in the inside curb lane as she approached the viaduct; that the speed of her auto was approximately 25 m. p. h.; that she was looking straight ahead as she approached the viaduct but could not see into it; that she was first aware of the truck’s presence when it was approximately three car lengths or forty-two feet in front of her; that she then saw the truck but did not see any men in the street; that she immediately applied her brakes, turned her wheels slightly to the left, but the right side of her auto struck the truck which was parked in the right curb lane; and that she saw no part of the truck and therefore assumed that it was either totally under the viaduct or in its shadow.

The plaintiff testified that at the time of trial he was still employed by the C.T.A. and now had light duty at and around the elevated stations. He had worked for the C.T.A. since 1929. On direct examination, the plaintiff stated that his back was normal before the accident. He also testified that about twenty-five years earlier he had lost four or five days from work due to a cold in his back. In the five-year period preceding this accident, during which time he had been dropping off salt boxes, the plaintiff had not lost any time from work, nor had he seen a doctor within this period of time. The plaintiff also testified that the red lights were blinking on and off in the rear of the parked truck and red flags were wired to each side of the truck in the rear. Furthermore, he had placed a red flag in Austin Boulevard at a distance of approximately forty feet behind the truck.

At the time of the accident, the plaintiff further testified that he was facing south on Austin Boulevard along with Lobue. They were assisting two other co-workers in unloading an empty salt box. He tried to hold up the box after the accident had occurred, but his efforts were unsuccessful as the force of the collision had caused the tailgate to drop and the salt box dropped with it. He was forced to release the box, and he fell against the curb hitting his spine against it in the process. The plaintiff then walked to a nearby place of business and had someone there call the police. Upon returning to the scene of the accident, he saw that the truck was now completely beneath the viaduct whereas Lubner had parked it earlier halfway outside the viaduct.

The plaintiff was not taken to the hospital, but later on the day of the accident, he noticed that he had pain in his back. When he reported to work the next day, the plaintiff told his foreman that he could not unload salt boxes because his back bothered him. In the ensuing two weeks, the plaintiff had only light duty. He then stopped working. He saw a doctor ten or fourteen days after the accident. In a space of approximately three months, the plaintiff consulted five doctors, among them Dr. Richardson, a chiropractor, and finally Dr. Miller, an orthopedic surgeon. The plaintiff saw Dr. Richardson within three weeks after the accident. He consulted with Dr. Richardson on a regular basis of twice a week for three weeks, but his back and left leg continued to cause him increasing pain. The plaintiff then stopped seeing Dr. Richardson and saw two other doctors before he came to Dr. Miller, the orthopedic surgeon, in early February, 1959, approximately three months after the accident.

Dr. Miller hospitalized the plaintiff and operated on him. The hospitalization period was for eight days and the plaintiff did not return to work until May, 1959. His lost time from employment was approximately six months. He stopped seeing Dr. Miller in June, 1959, and hasn’t had any treatment by a doctor since then. His back continues to pain him.

On cross-examination, counsel for the defendant asked the plaintiff if he had any back problems before this accident. The plaintiff answered no to this question as well as to the query if he had a back problem in 1950 when he was off from work due to lumbago. The plaintiff did state that he still has pain in his back and in his left leg but not in the same degree of intensity as he had before the operation.

Counsel for the defendant asked the plaintiff in three successive questions whether the plaintiff had told Dr. Richardson, the chiropractor, that he had a back problem for twelve years. Each time the plaintiff answered no. His counsel objected to these questions unless counsel for the defendant intended to produce Dr. Richardson. The objection was overruled. Dr. Richardson never testified. Later in the trial, counsel for the plaintiff moved, in chambers, that the cross-examination of the plaintiff on this point be stricken and the jury be instructed to disregard it as Dr. Richardson had not testified. His oral motion was denied.

In final argument, counsel for the plaintiff tried to mention to the jury that counsel for the defendant owed an obligation to produce Dr. Richardson in light of defense counsel’s cross-examination of the plaintiff as well as due to the fact that in opening argument to the jury, defense counsel had stated that the plaintiff had a prior back condition for some time. The objection of defense counsel to this argument was sustained by the court. In his written post-trial motion for a new trial on the issue of damages only or, alternatively, on all the issues, counsel for the plaintiff renewed his specific objection and again was overruled.

The only medical witness who testified at the trial was Dr. Donald S. Miller. He testified for the plaintiff and stated that he was the orthopedic surgeon to whom the plaintiff had come in mid-February, 1959; that the plaintiff told him he had been involved in an accident when he was lifting a very heavy box on the back of a truck and his back and left thigh now pained him; that the plaintiff did not give this physician any history of a prior back problem; that the patient had all the signs of a nerve being pinned or irritated — typical sciatica in the the doctor’s opinion; that at this physician’s suggestion, the plaintiff submitted to a myelogram to determine the precise location in the spine of the offending irritation; that an interpretation of the myelogram showed the sciatica was caused by a rupture of a disc located in the extreme lower part of the back; that the displaced or ruptured disc had to be removed to relieve the pain and the vertebrae had to be fused also to relieve the pain and to minimize the effect of the plaintiff’s long-standing arthritis in this area of the lower back; that this witness performed such an operation, and that in his opinion, the ruptured disc was caused by the box.

In conclusion, Dr. Miller testified on direct examination that he saw the plaintiff twelve times after he left the hospital in 1959 and he also saw him approximately three months before the trial at which time he took X rays of the back area which had been earlier affected and observed that the plaintiff still had occasional pain in his back; flattening of the lumbar spine which normally occurs after a fusion; and a limitation in motion and mobility. Moreover, there was scar tissue around the operative site which is inevitable after any operation. The effect of scar tissue is the cause of some irritation in the back and somewhat down the leg. The scar tissue is an effective producer of pain in Dr. Miller’s opinion.

On cross-examination, Dr. Miller stated that his associate took a medical history of the plaintiff before Miller saw him which history indicated that the onset of the plaintiff’s physical pain occurred approximately three months before this examination and two days after the plaintiff had lifted a heavy box. It was Dr. Miller’s opinion that although a few ruptured discs develop as a result of no provocation, most of them are caused by some incident of trauma. In conclusion, Dr. Miller testified that a single incident could injure a healthy disc; that there is no medical relationship between arthritis and a ruptured disc; and that lumbago is pain in the back whereas sciatica is pain in the leg. This concluded the medical testimony.

Stanley Mailuck, an accountant for the C.T.A., testified for the plaintiff regarding the dollar amount of wages the plaintiff lost for the six-month period he was unemployed following the accident. This sum was approximately $2,356. On cross-examination, he stated that the earnings of the plaintiff rose after 1958 (the year of the accident). From 1960 to 1965, the yearly earnings of the plaintiff had shown a cumulative increase of $1,125.

The defendant presented two witnesses in her behalf: the defendant herself and Ralph Umstot, a statistician in the C.T.A. insurance department. The testimony of the defendant was quite similar to what she had said earlier in the trial as an adverse witness. She did mention that she did not see a red flag in the street as she was driving southbound on Austin Boulevard approaching the viaduct; that she did not see the truck before the accident but rather just an object in her path; that there was a difference in light on the day of the accident when contrasting the viaduct area with the approach to the viaduct; and that the impact of the collision between the right front bumper of her car and the left rear of the C.T.A. truck did not cause her six-week-old baby to be thrown from her car bed nor was the car bed disturbed in its fixed support. On cross-examination, the defendant testified that in her pretrial discovery deposition she had stated that she saw the C.T.A. truck before the accident and at that time, her auto was three car lengths from the parked truck.

Ralph Umstot, a C.T.A. insurance statistician, stated that the C.T.A. insurance records showed that the plaintiff had lost time from work in June, 1950, due to lumbago as well as four days in 1957 due to bursitis in the left shoulder. According to the records kept by his department for employee benefit purposes, these were the only absences shown for the plaintiff in the period of 1950 to 1957.

On appeal, the plaintiff maintains that prejudicial error occurred in this jury trial when counsel for the defendant laid the foundation for possible impeachment of the plaintiff and then did not produce the expected impeachment witness, Dr. Richardson. Furthermore, prejudicial error is also alleged to have occurred when the trial court refused to allow mortality tables into evidence which were tendered by the plaintiff in an effort to establish recovery for future pain and suffering. The plaintiff urges that the cause be remanded for a new trial on the issue of damages only, or alternatively, that the cause be remanded for a new trial on all the issues.

In response, the defendant contends that the jury award was adequate as there was no substantial evidence showing that the back condition of the plaintiff was caused by the accident but rather the back condition existed before the occurrence. In addition, the exclusion of the mortality tables is alleged to have been a proper ruling by the trial court in that there were no future damages to reduce to present cash value.

We hold that the amount of the jury award in this case, $2,500, is patently inadequate and the cause must be remanded for a new trial on the issue of damages only. It is probable that one of the reasons for the return of such a small verdict, in light of the injuries and pain and suffering testified to as being sustained by the plaintiff as a result of the collision, was caused by defense counsel laying the foundation for the impeachment of the plaintiff and then not producing the impeaching witness, Dr. Richardson. The trial court overruled the objection of plaintiff’s counsel to this line of questioning unless Dr. Richardson was produced; refused to strike the cross-examination of the plaintiff on this point and instruct the jury to disregard it when defense counsel admitted in chambers that he was unable to produce Dr. Richardson; and sustained the objection of defense counsel when plaintiff’s counsel, in closing argument, attempted to tell the jury that defense counsel had an obligation to produce Dr. Richardson. These actions by the trial court might have somewhat supported the innuendo created by defense counsel’s specific questions of the plaintiff on cross-examination that the plaintiff had in fact sustained a prior unrelated back problem and possibly, in the eyes of the jury, placed an obligation on the plaintiff to produce the missing Dr. Richardson as a witness rather than the defense, although defense counsel, and not plaintiff’s counsel, had originally laid the foundation for possible impeachment.

The trial court held that the three successive questions asked of the plaintiff on cross-examination as to whether the plaintiff had told Dr. Richardson that the plaintiff had a back problem for twelve years were proper at the time they were asked, and it was not going to strike that testimony of the plaintiff at a later point in the trial and instruct the jury to disregard it. The trial court was of the opinion that such action on its part could cause the jury to think that defense counsel was not acting in good faith. Defense counsel admitted, but not before the jury, that he could not produce the possible impeaching witness, Dr. Richardson, because the chiropractor was allegedly in New York and therefore immune from service of a subpoena. We are of the opinion that once defense counsel lays the foundation for impeachment, he, and not counsel for the plaintiff, is under an obligation in law to produce the impeaching witness. If he fails to meet this obligation, the trial court must strike any applicable cross-examination and instruct the jury to disregard it, or, at the insistence of the plaintiff, declare a mistrial.

At the trial, defense counsel suggested a reason for asking the plaintiff these questions regarding Dr. Richardson and the alleged disclosure by the plaintiff to the chiropractor of the patient’s prior back condition. It was defense counsel’s contention that at his pretrial discovery deposition, Dr. Richardson had brought with him his case record pertaining to the treatment of the plaintiff. This case record had on it the following entry: “Lower lumbar— . . . sciatic, dur. chronic, 12 yrs., dur. acute 5 years.” It was indicated out of the presence of the jury that Dr. Richardson, at the deposition, had explained this entry to be that the plaintiff had told him that he had this pain once before, twelve years previous, but it had cleared up within a month or so. Chronic to Dr. Richardson meant that the plaintiff had this trouble in his back once before twelve years ago. Defense counsel asserted at the trial, in chambers, that he asked the plaintiff this question regarding whether he had told Dr. Richardson that he had a back problem for twelve years in an attempt to gain an explanation of this ambiguous entry on the doctor’s case record. In our opinion, this explanation does not cure the inherent unfairness of a trial technique which lays the foundation for possible impeachment and then does not produce the impeaching witness. The plaintiff was not the proper party to be questioned regarding an alleged ambiguity in Dr. Richardson’s case record.

As was aptly stated by this court in Gordon v. Checker Taxi Co., 334 Ill App 313, 318, 79 NE2d 632, 634 (1948), in reversing and remanding a judgment for strikingly similar conduct of defense counsel:

“. . . The questions propounded on cross-examination of plaintiff, . . . were proper if asked in good faith for the purpose of impeachment in the event of denial, and had objection been made the court would be obliged to overrule the objection. Proof of the facts involved in such questions would obviously affect plaintiff’s present claim for injuries, pain and suffering. Innuendoes involved in such questions are sometimes more damaging than an effort to prove the impeaching facts. When no witness is offered to impeach plaintiff and, therefore, no opportunity for cross-examination presented, the prejudicial effect springing from such questions cannot always be overcome, and results in an unfair trial to a plaintiff. . . . (O)r suppose questions were asked concerning alleged conversations with others, which involves very damaging supposed admissions against interest, and though denied by the witness, no proof is offered to impeach, such type of cross-examination, if approved, could succeed in defeating many a meritorious cause.” (Emphasis supplied.)

See also Townsend v. Chicago Transit Authority, 1 Ill App2d 77, 81, 116 NE2d 170, 171 (1953), wherein this court stated that the trial practice of laying a foundation for impeachment by questioning and then failing to follow up with proof is to be strongly criticized.

Justice would not be served by remanding this cause for a new trial on all the issues. In the trial of this case, the jury returned a general verdict in favor of the plaintiff. No cross-appeal is now before this court urging that the verdict of the jury is against the manifest weight of the evidence. Indeed, the evidence in this record amply supports the verdict of the jury as to liability. The plaintiff sustained the allegations in his complaint. Dr. Miller testified to the causal connection between the accident and the operation on the plaintiff for a displaced disc and vertebrae fusion. He said displaced discs are usually caused by a trauma, which could be a single incident. The striking of the plaintiff’s spine against the curb which was caused by the collision between the moving car of the defendant and the parked C.T.A. truck might have been such a trauma in the judgment of the jury when it returned its general verdict for the plaintiff.

The defendant testified that the parked C.T.A. truck was either totally under the viaduct or in its shadow when she struck the vehicle, and she did not notice a red flag in the street. Witnesses for the plaintiff and the plaintiff himself testified that the C.T.A. truck was only partly inside the viaduct; its rear red lights were blinking on and off; red flags were on both sides of the truck in the back; and a stationary red flag was put in Austin Boulevard by the plaintiff at a distance of thirty to forty feet behind the parked truck. Presented with this substantial conflict in the evidence, the jury resolved them in favor of the plaintiff by the return of its general verdict in his favor. The cause will be remanded for a new trial on the issue of damages only. There is precedent for such a remedy. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 45-46, 139 NE2d 275, 285-86 (1956); Mineiko v. Rizzuto, 65 Ill App2d 35, 212 NE2d 712 (1965).

Mortality tables were tendered by the plaintiff for consideration of the jury in assessing damages for future pain and suffering. Defense counsel objected to the admission of such evidence. The trial court sustained the objection on the grounds that mortality tables are competent evidence only when there is proof of loss of future earnings. In this case, undisputed evidence showed that the earnings of the plaintiff had increased in the years following his operation. On appeal, the plaintiff maintains that the trial court committed reversible error in excluding these mortality tables as evidence was introduced showing that the plaintiff was going to incur future pain and suffering and mortality tables are admissible for the purpose of establishing recovery for future pain and suffering.

We hold that the trial court was correct in excluding these mortality tables from evidence when proffered by the plaintiff. It is the law in this jurisdiction that mortality or life expectancy tables are competent evidence in wrongful death actions (Calvert v. Springfield Light Co., 231 Ill 290, 294, 83 NE 184, 186 (1907)) and in personal injury cases but only, in personal injury cases, where the evidence shows that the injury is permanent. Avance v. Thompson, 387 Ill 77, 83-84, 55 NE 2d 57, 60 (1944); Stegall v. Carlson, 6 Ill App2d 388, 392-93, 128 NE2d 352, 353-54 (1955). See also, an annotation on this subject in 50 ALR2d 419 et seq.

If a personal injury sustained by the plaintiff is shown by the evidence to be permanent, the life expectancy of the plaintiff is a relevant and material issue for the jury’s consideration when it assesses compensatory damages to be awarded the plaintiff. It is apparent that the damages suffered by the plaintiff in such a case will not end until he dies. However, if a personal injury is not permanent, the introduction of mortality tables could lead to excessive jury awards as the plaintiff could conceivably receive compensatory damages for a period of time in excess of which he would have been damaged by the conduct of the defendant. This apparently is the underlying rationale for the judicial policy in this State that mortality tables are not competent evidence in personal injury cases unless the plaintiff has incurred a permanent personal injury.

The same rationale must be extended to cases involving future pain and suffering where the personal injury incurred is not a permanent one. Since the injury is not permanent, it and any accompanying pain and suffering might come to an end long before the plaintiff dies. To introduce mortality tables into evidence in such a case would be illogical and could quite conceivably lead to grossly excessive jury awards. Furthermore, pain and suffering is not such a fixed and certain quantity which is capable of being accurately measured and estimated by duration of time. It ebbs and flows in various degrees of intensity over the duration of time. We are of the opinion that a sound judicial policy supports the rule of law in this jurisdiction that mortality tables are admissible in personal injury cases only when the evidence shows that the injury is permanent. Proof of future pain and suffering is insufficient to gain the admission of mortality tables where the personal injury sustained is shown to be not a permanent one. Although counsel for the plaintiff in such cases will not have mortality tables in evidence, he can still argue to the jury in support of his contention that a certain sum of money should be awarded to the plaintiff to compensate him for future pain and suffering. Whatever sum is fixed by the jury as compensation for future pain and suffering is not reduced to present cash value.

In the instant case, the orthopedic surgeon, Dr. Miller, stated that he removed the displaced disc of the plaintiff and the operation was a success. The plaintiff returned to work within six months after the accident and within approximately three months after the operation. Uncontradicted evidence showed that his yearly earnings increased after the accident. The plaintiff himself testified that he has not had treatment for his back since June, 1959. Thus, the plaintiff did not sustain any permanent disability or permanent personal injury. Both Dr. Miller and the plaintiff testified to the incurrence of future pain and suffering. Future pain and suffering, without accompanying a permanent personal injury, is not sufficient in our opinion to permit the introduction of mortality tables which attempt to measure the duration of a given plaintiff’s life. The trial court properly excluded the mortality tables from evidence.

One other facet of this case remains to be briefly discussed. The plaintiff, on direct examination and not in response to any specific question addressed to him by his counsel, candidly and extemporaneously admitted that he “left the hospital before 2:00 p. m. because I had no insurance coverage.” On cross-examination, the plaintiff admitted that his hospital and doctor bills had been paid in full by his employer. Counsel for the plaintiff agreed to such cross-examination rather, than have the trial court perhaps declare a mistrial. Later in the trial and out of the presence of the jury, counsel for the plaintiff asked the court if he could mention to the jury that although the plaintiff’s employer had paid the medical expenses, his employer was now pursuing a subrogation claim against the insurer of the defendant. The trial court ruled that no further mention of insurance coverage should be made to the jury. However, in closing argument to the jury, counsel for the defendant stated that “you heard this man’s (the plaintiff’s) testimony that he left (the hospital) eight days earlier because he didn’t have insurance. He was forced to admit this because he said that he didn’t have to pay the hospital bill. And I wonder if that isn’t the treatment that should be given to the whole thing.” Counsel for the plaintiff objected to this closing argument. His objection was overruled by the court.

At the retrial of this cause on the issue of damages only, we trust that there will be no mention by either party of insurance coverage or the lack of it. Insurance, as a general rule, is not relevant to the issues of fault and damages proximately caused by such fault. Seyferlich v. Maxwell, 28 Ill App2d 469, 475, 171 NE2d 806, 809 (1961).

Within the facts of this case, the liability of the defendant was established. Since the jury properly decided the liability issue and improperly decided the question of damages, the judgment will be reversed as to damages only. The cause will be remanded for a new trial on this issue.

Reversed and remanded with directions.

BURKE and McCORMICK, JJ., concur.


author: MR. JUSTICE DEMPSEY MR. PRESIDING JUSTICE DEMPSEY

text:
    Rosemary Baur Bull, Plaintiff-Appellant, v. American National Bank and Trust Company of Chicago, Trustee Under Trust Number 22254, Arnold Meyer, Jordan H. Kaiser and Walter P. Kaiser, H. S. Kaiser Company, an Illinois Corporation, and Cook County Federal Savings and Loan Association, Defendants-Ap-pellees.
    Gen. No. 53,130.
    First District, Third Division.
    April 24, 1969.
    Rehearing denied and supplemental opinion September 11, 1969.

      John P. Murray, of Chicago, for appellant.
    Robert Marks, of Chicago (Marks, Marks and Kaplan, of Chicago), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The American National Bank, as trustee, applied for a permit to construct a 27-story apartment building with an attached rear-yard garage 27 feet, 6 inches high at 1515 North Astor Street, Chicago. The property was located in an R-7 general residence district. On March 26, 1966, the zoning administrator of the City denied the application because the height of the proposed garage exceeded the zoning ordinance limitation of 18 feet.

On April 14, 1966, the applicant (hereafter the defendants) appealed the ruling of the administrator to the Chicago Zoning Board of Appeals. Two public hearings were held — one on May 17, 1966, and the other on June 2, 1966. At them, the board “fully heard the testimony and argument of the parties.” One of the parties was the plaintiff — an owner of a single-family residence adjacent to the defendants’ property. She complained that the proposed garage violated the ordinance and would interfere with light and air reaching her premises.

On June 7, 1966, the zoning board wrote to the Corporation Counsel of the City of Chicago asking whether the board had jurisdiction of the case. In August 1966 an assistant counsel, in a letter approved by the corporation counsel, replied in the affirmative. His letter then went beyond the scope of the board’s inquiry and commented upon the defendants’ contentions, the merits of the case and the history of such cases before the zoning administrator. He informed the board that on some similar projects in the past the administrator had issued permits for garages in excess of the 18-foot limitation and he concluded from this that the administrator had interpreted another section of the ordinance as constituting an exception to the height limitation of 18 feet.

The letter was dated August 23, 1966. The defendants either knew about the letter or soon learned of it for they immediately filed another application for a permit to build the apartments and attached garage. This time the administrator ruled that the height of the proposed garage did not violate the ordinance and on August 30, 1966, issued the permit.

The defendants did not notify the Zoning Board of Appeals or the plaintiff of their second application or of the issuance of the permit and they did not withdraw their appeal. Instead, they bypassed the board and proceeded with their project. Meanwhile, the zoning board, unaware of the new developments, rendered its decision. Despite the information in the assistant corporation counsel’s letter the board, on October 4, 1966, affirmed the refusal of the zoning administrator to issue the permit. The defendants were advised of the decision but ignored it. They did not ask for a rehearing and did not file an appeal. They chose to act under the issued permit. They acquired land, paid for architectural fees and drawings and entered construction contracts. In July 1967 they began construction. The building permit was displayed at the site.

About a month later the plaintiff filed an action to permanently enjoin the construction, maintenance and use of the apartment building and garage. Both the plaintiff and the defendants filed motions for summary judgment supported by exhibits. The plaintiff, in her motion, modified her prayer for relief and asked for an injunction prohibiting the construction of an attached garage in excess of 18 feet and for the removal of any such structure that was more than 18 feet in height. The court ruled in favor of the defendants, denied the injunction and dismissed the plaintiff’s complaint. The court’s decision is the subject of this appeal.

In support of the order dismissing the complaint, the defendants argue that: in seeking an injunction the plaintiff employed the wrong remedy; she was at fault in not appealing the administrator’s second decision; she did not exhaust her administrative remedies and, hence, could not resort to the courts; her present action is a collateral attack upon a valid permit; she is estopped from enjoining the construction by her own laches and because the defendants’ position has been altered in reliance on the permit; upon the issuance of the permit, the defendants’ appeal, which was then pending before the zoning board, became moot and the subsequent decision of the board had no legal effect; the administrator’s first decision was wrong and his second decision was right because the zoning ordinance allows the type of construction contemplated by the defendants’ application; if this is not so the prior, contrary administrative interpretations of the ordinance carry great weight, and a ruling opposed to these interpretations would be lacking in uniformity.

Whether the administrator’s first or second decision was correct is not the controlling question in the present posture of the case. Nor are we overly concerned with the altered position of the defendants which was self-induced. The problem before us is the procedural snarl brought about by the defendants’ course of conduct and the plaintiff’s choice of remedies.

The defendants minimize their failure to appeal to the Circuit Court from the zoning board’s decision and magnify the plaintiff’s failure to appeal to the zoning board from the administrator’s second decision.

The plaintiff, who did not learn of the second decision until sometime after the construction began, brought an action under section 11-13-15 of the Illinois Municipal Code — a statute which has for its purpose the prevention of zoning violations. 222 East Chestnut St. Corp. v. Lakefront Realty Corp., 256 F2d 513 (1958). Her action sought to enjoin a violation of a zoning ordinance, which violation had been determined by the zoning administrator and affirmed by the Zoning Board of Appeals. The statute states:

“In case any building or structure is constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used in violation of this Division 13, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property in the same contiguous zoning district as the building or structure in question, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. . . Ill Rev Stats 1967, c 24, sec 11-13-15.

While the plaintiff, under the rules of the zoning board then in effect (see General Rules of the Chicago Zoning Board of Appeals, art II, § 4 (1965)) could have appealed to the zoning board within 30 days of the date the permit came to her notice, her not doing so, under the circumstances of this case, is not interdictive of the remedy she chose. Of course, she chose a remedy most beneficial to her just as the defendants, in proceeding on their newly acquired permit, chose the course they thought most beneficial to them. The remedy chosen by the plaintiff was appropriate to the predicament confronting her. She was attempting to prohibit a zoning violation which was declared by the administrator and affirmed by the Zoning Board of Appeals — not to review the allowance of the second application for the permit. She was an aggrieved party and her predicament was caused by the defendants’ acting upon their hurriedly secured second permit instead of pursuing their appeal from the denial of the first. The predicament was aggravated by the defendants’ failure to notify the plaintiff of the second application; to notify her that the application was granted; to notify the Zoning Board of Appeals that the permit was granted; to withdraw their appeal or to appeal the board’s decision to the Circuit Court.

In terms of delay in seeking relief, the defendants were not prejudiced by the election of the plaintiff to proceed under section 11-13-15 rather than appealing to the zoning board under the then existing rules. Under the latter she had 30 days from her first knowledge of the permit to bring an appeal. Under the former she had to file a complaint within a reasonable time after learning of the violation and this she did; she started her action 40 days after the permit was posted at the building site. The ten-day interval did not damage the defendants.

The defendants attack the plaintiff’s choice of remedy but they themselves chose the wrong course. The decision of the zoning board was reviewable under the Administrative Review Act (Ill Rev Stats 1967, c 24, § 11-13-13) but the defendants did not appeal the zoning board’s affirmance of the administrator’s first decision. The decision of the board, therefore, became final, was binding on the defendants and is not subject to collateral attack. Ill Rev Stats 1967, c 110, § 265; People ex rel. Interchemical Corp. v. City of Chicago, 29 Ill2d 446, 194 NE2d 199 (1963).

The defendants contend that the plaintiff’s action is barred by estoppel. They claim that in reliance on the issuance of the permit, they made expenditures and incurred obligations. But their own irregular procedure produced the situation of which they complain. The plaintiff was not at fault; she could not object to a permit of which she had no knowledge. (The permit may have been of public record but where one application for a permit was already filed, denied and in the process of being appealed, there was no reason for the plaintiff to examine public records.) She filed her complaint 40 days after the permit was posted. This was not an undue delay considering the time needed to discover the permit, to check it, to consult an attorney, to investigate the facts and the law and to determine a course of action. After the filing of the complaint for an injunction, the defendants continued their expenditures, but these were made at their peril. They ignored the complaint as they had the zoning board’s decision and took a calculated risk that the litigation would turn out in their favor.

Under the circumstances of this case, the plaintiff’s choice of remedy was not incorrect and her complaint should not have been dismissed. In reaching this conclusion, we do not decide which decision of the administrator was right. His first decision was affirmed by the Zoning Board of Appeals after testimony, evidence and argument and after consideration of the gratuitous information and volunteered opinion of the assistant corporation counsel. The board’s unappealed ruling remains in force. The defendants cannot evade the force of this ruling by their course of conduct, and they cannot use their subsequent expenditures as a fait accompli-shield to justify their violation of the ruling or to deprive the plaintiff of relief.

The order of the Circuit Court is reversed and the cause remanded with directions to grant the pertinent prayers of the plaintiff’s complaint.

Reversed and remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a petition for rehearing the defendants assert that despite the language in section 11-13-15, chapter 24, Ill Rev Stats 1967, an owner of property in the same contiguous zoning district as the alleged zoning violation does not have a right to obtain injunctive relief without a showing of individual damage and that the plaintiff in this case neither alleged nor proved such damage.

In interpreting the predecessor to this section (Ill Rev Stats 1955, c 24, § 73-9) this court has held that equitable principles applied and that to entitle one to injunctive relief he must establish, as against the defendant, an actual and substantial injury — not merely a technical, inconsequential wrong entitling him to nominal damages. In 222 East Chestnut St. Corp. v. LaSalle Nat. Bank, 15 Ill App2d 460, 146 NE2d 717 (1957), the property of the plaintiff was 184.5 feet from the property of the defendant, and it was there held that the location of the properties in the same contiguous zoning district was not sufficient to prove an actual and substantial injury.

However, in the case of 222 East Chestnut St. Corp. v. Board of Appeals, 10 Ill2d 132, 139 NE2d 218 (1956) which involved the same two buildings, the court implied that in some instances the location of property could justify an inference of injury. The plaintiff brought an action in the Superior Court of Cook County seeking to reverse a decision of the Chicago Zoning Board of Appeals granting the defendant’s application for a zoning variation. The plaintiff alleged that the variation would substantially injure its property with regard to light, air, traffic congestion and real estate values. The trial court affirmed the board’s ruling and the plaintiff appealed. In affirming the trial court, the Supreme Court found that there was no evidence in the record that the plaintiff was injured. The court further noted that nothing in the physical situation of the two properties justified an inference that the plaintiff’s building would be damaged by the variation.

The implication that in some situations an injury can be presumed is also found in another case where the same plaintiff complained about the granting of a building permit for a split-level parking garage 293 feet away from its property. The plaintiff claimed that the proposed structure would interfere with its light and air, congest traffic and reduce the value of its property. 222 East Chestnut St. Corp. v. Board of Appeals, 10 Ill2d 130, 139 NE2d 221 (1956). The reviewing court stated that "mere proximity without proof of actual damage is not sufficient” and held that there was neither evidence nor presumption to show that the garage would have an adverse effect on the plaintiff’s property.

In the present case the plaintiff’s complaint and motion for summary judgment alleged that her single-family residence was immediately adjacent to the defendants’ property; that the attached 3-story garage exceeded the limitation of the zoning ordinance by 9 feet, 6 inches, and that its construction would cause her irreparable injury. While it has been held that mere location in the same contiguous district is not sufficient to show actual damage, the facts of this case create a reasonable inference of injury. The addresses of the plaintiff and the defendants indicate that their properties either touch each other or that there is no extensive space between them. A garage 18 feet high attached to a tall apartment building would interfere with the light and air reaching the plaintiff’s residence although it would not violate the zoning ordinance. A 27 foot, 6 inch high attached garage would cause additional interference and, according to the Board of Zoning Appeals, would violate the ordinance. This additional interference would be actual injury and is sufficient to enable the plaintiff to maintain her action.

The petition for rehearing is denied.

Petition denied.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE SMITH

text:
    Barbara J. Abramson, Plaintiff-Appellant, v. Myra Levinson, Defendant-Appellee, and Myra Levinson, Plaintiff-Appellee, v. Barbara J. Abramson, Defendant-Appellant.
    Gen. No. 52,598.
    First District.
    April 25, 1969.
    Rehearing denied July 25, 1969.

      Robert A. Sprecher and Edward W. Barrett, of Chicago, for appellant.
    Cornelius J. Harrington, Jr., John M. O’Connor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, and Louis G. Davidson, of Chicago (Eugene I. Pavalon, of counsel), for appellee.
   MR. JUSTICE SMITH

delivered the opinion of the court.

One party here was southbound, the other north, but which one? It makes a lot of difference because the southbound car jumped the Lake Shore Drive divider and hit the other. Indeed, the trial court instructed the jury that the southbound car was guilty of negligence, the northbound car free from contributory negligence and the sole question for them to decide was which car was southbound. Each party sued the other charging negligence, the cases were consolidated for trial and a judgment entered on the jury’s verdict in favor of Myra Levinson Grusin and against Barbara Abramson Figler for $48,000. Myra was driving a Corvair, and Barbara a Valiant. Barbara’s post-trial motions for judgment n.o.v. and for a new trial were denied and she appeals, one of her points being that she was not southbound but Myra was.

In this court, she raises three issues: A. That the jury’s verdict is against the manifest weight of the evidence because the physical damage to the cars indicates an inherent improbability that the Valiant was the southbound car, B. That the trial court erred in refusing to permit an expert offered on behalf of Barbara to reconstruct the accident, and C. That the court erred in permitting a doctor to express an opinion and give a reason for the loss of memory on the part of Myra Levinson Grusin. We will discuss these points in inverse order.

Objection is made to the testimony of the doctor that the injuries sustained by Myra Levinson Grusin were sufficient to account for her loss of memory for a minute or two prior to and during the accident in question. She remembered driving North on Outer Drive but had no recollection of the occurrence events and recalled only waking up in the hospital. The doctor recited his qualifications without objection and the objection to his opinion was only general. For the first time in this court, the testimony is objected to for the reason that the doctor had not studied or specialized in the field of lack of mental recall resulting from injuries due to automobile collisions and was thus incompetent to testify as an expert on this subject. Appellant cites no authority for her present assertion and it is fundamental that there is nothing for this court to review when the trial court was not asked to pass on the objection now made. The issue cannot be raised for the first time on the appellate level. People v. Everist, 52 Ill App2d 73, 201 NE2d 655; People v. Trefonas, 9 Ill2d 92, 136 NE2d 817; O’Keefe v. Lithocolor Press, Inc., 49 Ill App2d 123, 199 NE2d 60.

Myra testified that she was proceeding north within the speed limit, but recalls nothing about the accident and is no help in that respect. Barbara testified she was proceeding north next to the divider, saw a flash of white in front of her, saw a woman driver across the passenger’s seat of the other car, had time to apply the brakes with both feet, turn the wheel to the right and was stopped at the time of impact. However, she was not able to describe the route taken by her Valiant across the Outer Drive and into the bushes to the east. Her head went through the windshield and she was badly injured. The damage to Barbara’s Valiant was on the left-front — the damage to Myra’s Corvair was on the right-front. The Corvair skidded along the divider to the north for a distance of some 300 to 400 feet and caught fire.

Ann Parker testified that she was proceeding south on Outer Drive in the 3rd lane from the west and that a gray-colored car approached her from the rear, bumped her, went over the divider and over into the bushes on the east side of Outer Drive. It was her opinion that the car in the bushes was the one she saw in her rearview mirror and was the one that struck her. She did not see the accident nor the actual contact between the two automobiles. A police officer was making an arrest, heard a thud, glanced up and saw a car going in a southeasterly direction and jump the divider. His original police report said that the car which jumped the divider hit the northbound car on the left side. He now changes his testimony in the trial of the case, but states unequivocally that it was the Valiant that jumped the divider and as a basis for such statement described the rear end of the Valiant and its lights in detail and as distinctive. He was subjected to a considerable cross-examination and asked to explain how the Valiant could have been struck on the left side and the damage to the Corvair on the right side if the Valiant had been the one crossing the divider. He explained it by saying that the southbound vehicle must have arced in the air and would have arced depending upon whether the front or the rear wheels crossed the divider last and explained the accident in this manner.

Barbara offered an expert to reconstruct the accident. An objection was made to the expert’s testimony and sustained on the grounds that since there were eyewitnesses to the direction in which the cars were going, that the expert’s evidence was inadmissible. The trial court took the position that Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733, and Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 181 NE2d 386, precluded reconstruction of an accident by an expert where there were eyewitnesses. In other areas the admissibility or inadmissibility of testimony by an expert does not depend upon whether there were or were not eyewitnesses. The test of its admissibility or inadmissibility rests on a determination as to whether or not it is necessary to rely on knowledge and the application of principles of physics, engineering or other sciences which are beyond the normal ken of the average juror. Its admissibility is further limited by whether or not there is sufficient undisputed physical evidence to provide the basic data needed for the application of principles of physics, engineering or science. Absent such basic and essential facts, the opinion of any expert is as much speculation, guesswork and conjecture as would be a jury’s verdict based on the absence of basic and necessary facts. Neither has any probative value. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826. Is a reconstruction expert in a different category?

The offer of proof states that the expert would testify that the location of the two vehicles after the accident plus the damage to the two vehicles as disclosed by the pictures makes the conclusion imperative and necessary that the Valiant was, prior to the accident, headed in a northerly direction and since no individual saw the progress of these vehicles after the original impact between the two cars, an expert’s opinion is admissible on the ground that there were no eyewitnesses as to the course taken by the cars after impact. The court instructed the jury in this case that the driver of the northbound car was free from contributory negligence and the driver of the southbound car which crossed over the divider was negligent and that such negligence was the sole, proximate cause of the collision. He then stated: “Your verdict will be for that plaintiff who you find was the driver of the southbound automobile involved in the occurrence in question.” Thus the offer of proof made by Barbara was to permit an expert to express an opinion which would ultimately and finally decide the lawsuit. In the context of this particular case, it was actually the only issue so far as liability was concerned. This, however, does not per se bar the opinion because the jury could still accept or reject that opinion as Miller v. Pillsbury suggests.

At the time the offer of proof was made, Barbara’s counsel asked the professor whether his testimony would bear out the offer of proof which he had just made. The answer was: “It would bear out the offer of proof as long as the accident occurred immediately as the vehicle crossed the median.” Barbara testified that she heard a scraping noise to her left and saw a white flash coming across. At that time she was traveling in the left-hand lane closest to the divider at about 35 mph. At the time she first saw it, it was in the southbound lane. She further testified that her first thought was to get away from it so “I turned my steering wheel to the right just ever so slightly and I applied my brakes— hard with both feet.” She further testified that she saw a girl in the other car across the passenger window and that the right side of that car struck the left side of her car. At the time of impact, she testified she believed that her car was stopped and that half of it was in the third lane and half of it in the fourth lane. Traveling at 35 mph, Barbara was traveling in excess of 50 feet per second. Her description, therefore, of the occurrence events are simply unrealistic. Reaction time plus the time required to stop means that she had to travel some distance and considerably more than 50 feet from the time she first observed the car of Myra’s and the impact. In this state of the record, we think no error was committed in refusing to permit the testimony of the expert. It is apparent that the jury did not believe Barbara’s testimony as to the occurrence events. It is equally clear that the opinion of the expert would have been entitled to no different belief based on those facts. The trial court held that the verdict was not against the manifest weight of the evidence and we concur.

His reason for rejecting the testimony of the reconstruction expert is error. It is not, however, an error warranting a retrial as the opinion of the expert on the facts here shown would have been valueless. Whether the testimony of a reconstruction expert and the expression of an opinion in the reconstruction of the accident by the expert is admissible is a question to be first determined by the trial court. The determination of the trial judge in admitting or rejecting such testimony requires him to exercise his sound discretion in a particular case. Before it is exercised in favor of admissibility, there should be demonstrated to the trial judge the following factors:

1. The expert has the necessary expertise as a result of education, training and experience in the specific area about which he expresses an opinion,
2. The area of inquiry should require the employment of principles of physics, engineering or other science or scientific data beyond the ken of the average juror,
3. The opinion of the expert cannot be naked, but must come clothed in evidentiary facts in the record, the inferences reasonably arising therefrom and must be elicited by hypothetical questions containing substantially all of the undisputed facts in evidence relating to the issue about which an opinion is sought, and
4. There must be a need apparent from the record in the case for scientific knowledge, expertise and experience which will aid the jury to a correct and a just result.

The need for a reconstruction expert should be the exception rather than the rule in automobile accident cases. Even in the absence of eyewitnesses to the occurrence events, the physical evidence generally leaves a trail readily read by the average juror and no expert is needed. Where there are eyewitnesses, the reconstruction expert is even less warranted unless the testimony of the eyewitnesses is incredible, unbelievable or contrary to accepted, natural or scientific laws. There is no place for the opinion of a reconstruction expert if the determinative facts are otherwise established by credible, physical or eyewitness evidence. A demonstrable need for expert testimony, with the limitations herein stated, is the key to the exercise of a sound discretion by the trial court. Thomas v. Cagwin, 43 Ill App2d 336, 193 NE2d 233; Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 216 NE2d 14. The opinion, if needed, must be based on facts existing at the time of the accident and absent such facts, the opinion is worthless and it’s reversible error to admit it. Jines v. Greyhound Corp., 33 Ill2d 83, 210 NE2d 562. To be admissible, the opinion must be grounded in something more than mere conjecture, speculation or personal surmise. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826; Year Investments, Inc. v. Joyce, 62 Ill App2d 173, 210 NE2d 66; Deaver v. Hickox, 81 Ill App2d 79, 224 NE2d 468. Applying these principles to the offer of proof here made and to the expert’s own limitation upon his opinion, we necessarily conclude that that opinion would be without probative value on this record. Accordingly, there was no error in excluding it.

The judgment of the trial court in the trial of these consolidated lawsuits is affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.