author: SMITH, P. J.

text:
    Mark T. Bond, as Administrator of the Estate of Michael T. Bond, Deceased, Plaintiff-Appellant, v. City of Champaign, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 11,186.
    Fourth District.
    August 31, 1970.
    Rehearing denied September 22, 1970.

      Summers, Watson and Kimpel, of Champaign, for appellant.
    Phillips, Phebus & Tummelson, of Urbana, Albert Tux-horn and James W. Evans, of Champaign (Hurshal C. Tummelson and George G. Bryan, of counsel), for appellee.
   SMITH, P. J.

Plaintiff appeals from a judgment entered in favor of the defendant on a jury’s verdict finding the defendant not guilty in the operation of its street lighting system. Plaintiff’s intestate, a university student, came to his death by electrocution when he stepped on a metal manhole cover while wading at a street intersection which had been flooded during a storm. The suit was based on one count charging res ipsa loquitur and a second count charging specific acts of negligence as follows: (1) Failed to have inspected said manhole or handhole and the wiring within the same and (2) failed to have said manhole or handhole and the wiring within the same in a safe condition.

Following a severe storm, the intersection at Fourth and Green Streets in Champaign was flooded. Decedent, along with some fraternity brothers, went down to the intersection, helped push some stalled cars and played around in the water. A photographer was taking pictures. To get into the act,, the decedent picked up one of his fraternity brothers on his shoulders and walked toward one corner of the intersection. In doing so, he stepped on a water-covered manhole cover which was electrified and received the electric shock that brought about his death. The manhole was referred to as a “pullbox.”

The manhole cover was about 18 inches square, weighed about 50 pounds, and was constructed of cast iron. It was flush with the street surface and covered a concrete box about 28 inches in depth and 18 inches in width. A plastic conduit for electric wires entered this box from either side below the ground surface and there were loose insulated wires looped within the box. The loops of wire ordinarily did not touch the top of the box. After the incident in question, one loop in this particular box was bare of insulation and touched the metal cover upon which the decedent stepped. When there was trouble with the street lighting system, the manhole cover was removed — it could not be removed except with an instrument or hook used for that purpose — and one could take hold of the wires and pull them through the plastic conduit either for replacement or repair. The system had been installed by the city about two years before. The boxes had not been inspected, and the system used was a system customarily used throughout the United States. Immediately prior to the occurrence, there had been a heavy rainstorm in the city accompanied by severe thunder and lightning. The evidence further shows that this particular intersection over a period of twenty years had been frequently flooded.

The plaintiff first complains that the court withdrew from the jury plaintiff’s charges of negligence that (a) defendant maintained a certain manhole equipped with electric wiring which was bare causing the lid to become electrified, (b) failed to warn the decedent of the system and its condition, and (c) permitted the decedent to be and remain in a position of danger without warning. There is no error in refusing to submit these three issues to the jury. There is no evidence that the city knew of the condition of this pullbox or that the pullbox cover was electrified prior to the storm. There is no evidence that the city was aware of any danger not readily visible to the decedent, that is, that the intersection was flooded. So far as actual knowledge was concerned, the defendant city and the decedent had equal actual knowledge of whatever danger was present. By this we do not imply contributory negligence on plaintiff’s part. In addition, by submitting to the jury an issue of failure to inspect and a failure to maintain the pullbox in a safe condition, the only issues supported by the evidence were clearly and precisely presented.

The plaintiff likewise asserts that the court erred in permitting defendant’s counsel to argue an Act of God to the jury without any evidentiary basis to show that it was the exclusive cause of the death. We are in no position to pass on this assertion. The record indicates that some five instructions dealing with lightning and the storm as Acts of God were refused by the trial court, that it admitted evidence of these conditions and indicated that it would permit counsel to argue them. None of the arguments is reported or preserved in this record, and whether or not the defendant did or did not argue, it is thus not before us. The plaintiff argues that naturally the defendant must have argued the evidence because it was about the only evidence offered by the defendant, and no one would be naive enough to believe that he didn’t. This does not solve our problem even if he did. We don’t know whether they were argued as attendant circumstances or as Acts of God. We don’t know what was said or whether it was proper or improper under the evidence in the record.

The pullbox was installed by the City of Champaign about two years before the occurrence. After the occurrence, a bare wire with the insulation burned off was touching the lid of the pullbox. The city employee testified that it would not have been safe to have installed the wire in this fashion, that normally it would extend to the bottom of the pullbox rather than against the top and that the wire would generally loop downward. Asked whether or not he had been in or inspected this particular box before, he said “he just didn’t know, but they had been in a lot of them.”

That the manhole cover was electrified at the time the decedent stepped on it was established. When it became electrified raises an issue of fact. Was the wire installed with one loop against the manhole cover and thus negligently installed by the city? Was the system struck by lightning days or months before, the insulation on the wires burned off and the lid then became electrified without knowledge on the part of the city ? If it had become so electrified months before, would a look into the box by the city have disclosed the defect? If the lightning struck the system causing this wire to jump — and there was testimony that it might or could do so — did the electrification of the manhole cover occur in a matter of minutes immediately before the accident? There was evidence that lightning struck a tree in the next block. There was evidence that a concrete box of this type is self-grounding and a ground wire is not required, while had it been of metal, a ground wire would have been required. The record further shows that neither during nor immediately following the occurrence was there any diminution or weakening of the lighting system and that the amount of electricity which would be lethal to an individual standing on a metal plate in dirty water would be much less than was required to activate the lighting system. There is no evidence that this wire was installed against the top of the box, although there was testimony that had it been so installed it would have worn off or fried off and the circumstances could be accounted for in this fashion. On the other hand, the testimony of the defendant’s expert was that the lightning would “burst out” and would itself move the wire in the pullbox.

On the question of inspection, defendant’s expert explained the function of the manhole or pullbox and that it was the usual and ordinary practice all over the country to employ handholes or pullboxes of the kind used by the City of Champaign. He further testified that these installations were not inspected and that they were not inspected because there was no purpose in such a periodic inspection, as there would be nothing to see, with the exception of a very small segment of the entire system. The charge that these pullboxes violated the National Electric Code as testified to by the plaintiff’s witness, Roberts, is valueless because the Code requires a hand-hole or pullbox to be grounded when it is of metal. The pullbox in this case was under ground, was made of concrete and was self-grounded.

Two witnesses for the defendant on examination of the defective wires after the accident testified that that type of damage to the wires would be caused by a stroke of lightning striking the system. It is thus apparent that a directed verdict on this record would be inappropriate and that the answer to the questions on the specific charges of negligence is patently in the area of jury dominion. We cannot say that the jury’s verdict on these specific charges is manifestly against the weight of the evidence for the very simple reason that on some of the questions there is no evidence and on the others the evidence is conflicting.

The plaintiff relies upon the doctrine of res ipsa loquitur and strongly upon the case of Moore v. Achison, T. & S. F. Ry. Co., 28 Ill App2d 340, 171 NE2d 393, which involved two trains trying to run on the same track and resulted in a collision. By way of explanation, the defendant established that the train had gone through a rainstorm some 15 to 18 miles from the scene of the accident and that perhaps lightning had hit the engine disabling all of the employees. A crewman, however, testified that no lightning had struck the train. As a consequence, in that case the court felt that reasonable minds could scarcely conclude that the collision was a result of lightning, as there was no evidence that lightning had struck the train or that it had disabled the engineer or fireman, if it did. That case is considerably different from the case at bar. In this case, there was expert testimony that the damage to the wire was a result of lightning. Two witnesses so testified. There was evidence of a severe lightning storm in the area during the day of the occurrence and that a tree a block away was struck by lightning. The course this case took during the trial is a typical res ipsa loquitur case. The accident that here occurred is an unusual event and one where it might reasonably be said that it would not occur except for the negligence of someone or caused by an intervening agency. From the evidence in this case it is clear that the water alone was not the cause of death. The water alone, plus walking on top of this manhole had it not been electrified, would not have caused death. It is the combination of these two circumstances, plus electrification, which was the cause of the injury and death in this case.

When a set of circumstances is presented which suggests that the injury or damage normally would not occur without the negligence of someone, then it becomes the duty of the defendant to refute such circumstantial evidence and such conclusion by evidence. In the instant case, the defendant offered evidence that there was no negligence in the installation of this instrumentality, that there was no negligence in failure to inspect this instrumentality, that there was no negligence in failure to ground this instrumentality, and that the instrumentality itself and the city’s maintenance of it followed established practice throughout the United States. Established practice is not per se controlling. Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 331, 211 NE2d 253, 257. The defendant then offered evidence indicating the probability that lightning had struck the system and had caused the damage to the wires in the particular manhole and it, in turn, electrified the cover. Having done so, it then becomes the province of the jury to determine whether or not the probabilities appearing from the evidence support negligence or nonnegligence. Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42; Traylor v. The Fair, 101 Ill App2d 268, 243 NE2d 300. We think this case falls squarely within the doctrine announced in Traylor, that is, that the facts occurring in the record warranted submitting the case to a jury on a res ipsa loquitur theory and that there was no error in so instructing the jury nor was there any error in permitting the defendant to introduce evidence of other possible causes such as lightning and arguing that evidence to the jury. As stated in Prosser:

. . This means that the inference of negligence to be drawn from the circumstances is left to the jury. They are permitted, but not compelled to find it. The plaintiff escapes a nonsuit, or a dismissal of his case, since there is sufficient evidence to go to the jury; but the burden of proof is not shifted to his shoulders, nor is any ‘burden’ of introducing evidence cast upon him, except in the very limited sense that if he fails to do so, he runs the risk that the jury may, and very likely will, find against him.” Prosser, Law of Torts, § 40, p 233, 3d Ed.

In the case at bar, when this evidence is finally distilled reasonable minds might well disagree as to whether the cause of death here is traceable to the negligence of the defendant or to the condition caused and created by the lightning. Under such circumstances, it is for the jury to draw the inference and to provide the strength it will attach to it. This it has done. We have carefully considered other errors raised in the case and find that they are either without merit or are of insufficient weight to warrant a new trial. The judgment of the trial court is accordingly affirmed.

Affirmed.

TRAPP and RICHARDS, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    Bertha L. Pope, Plaintiff-Appellant, v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis, a Corporation, Defendant-Appellee.
    Gen. No. 11,191.
    Fourth District.
    August 31, 1970.
    Rehearing denied October 5, 1970.
    Thomas F. Londrigan, of Springfield, for appellant.
    R. G. Heckenkamp and W. J. Simhauser, of Springfield, for appellee.
   SMITH, J.

This is an appeal by the plaintiff from a judgment entered on a jury’s verdict finding the defendant-hospital not guilty in the maintenance of its terrazzo entrance. The plaintiff seeks a new trial on two grounds: (1) The court erred in excluding weather reports showing weather conditions when offered in rebuttal and (2) it erred in failing to give an instruction relating to the defendant’s failure to call or to give adequate explanation for the failure to call certain witnesses within the control of the defendant.

The plaintiff slipped and fell on a wet terrazzo surface in the entranceway to the defendant-hospital and sustained a broken ankle. She charged the defendant with three separate acts of negligence, that is, (1) failed to keep said inside entrance and stairway free of water, (2) maintained a dangerous entrance and stairway which became slippery when water was deposited thereon and (3) failed to give warning or notice of aforesaid dangerous condition. There is no controversy in this record but that it was raining and that the entranceway was wet. A documentary report of the defendant’s housekeeper stated that plaintiff “slipped on wet steps (raining)The plaintiff testified that she slipped before she got to the handrail along the steps. Plaintiff’s daughter-in-law testified that the terrazzo was wet with dirty water covering the floor. She was in front of her mother-in-law and did not see her slip. A third witness testified that there was a lady (plaintiff) ahead of him and as she started down the steps, she slipped and landed on the landing. He helped pick her up. He also testified that it was raining at the time and that the steps and landing were wet. The housekeeper testified that “there was a little moisture on the stairs and that she did not know whether the entrance way was wet or dry.”

Admitted into evidence was a document entitled “Job Description” which, among other things, imposed upon the janitor the responsibility for “5. Safety of others, (a) Must see that the general public, patients and fellow employees are cautioned either verbally or by printed signs, as to areas of possible danger of slipping and falling on wet surfaces, . . . .” The supervisor of the maintenance department likewise testified that “my housekeeping instructions were always watch additionally during inclement weather and niop them as required/’ The weather report which was denied admission into evidence was not offered on direct examination, but in rebuttal. It was apparently offered in rebuttal to impeach the testimony of one witness that he did not assign anyone to the stairway because he didn’t remember whether it was raining in the daytime. The plaintiff argues that the failure to admit the weather report was highly prejudicial to her case on the theory that the weather report would establish that the weather was inclement, and being inclement, it became the duty of the defendant’s employees to assign someone to keep the stairway clean of water accumulation. We have already recited the testimony concerning the water that was present on the landing. Not a single witness testified that it was not raining or had not been raining. The issue, as the trial judge put it, was not how much water was outside, but how much water was on the landing inside. There is no evidence that it was not raining or that it had not been raining. There was nothing to explain, repel, contradict or disprove. People v. Bell, 328 Ill 446, 159 NE 807. Such is the purpose of rebuttal testimony. The record here is far removed from that in Chicago & N. W. Ry. Co. v. Trayes, 17 Ill App 136. In that case, the court ruled that a weather record showing clear weather on the date of the accident offered by the defendant to contradict the testimony of the plaintiff that it was a cold, dark stormy night was competent and material. The plaintiff argues that since the defense counsel objected to the admissibility of this weather report on the ground that it was “prejudicial” to the defendant, then it follows as a matter of course that its exclusion had to be prejudicial to the plaintiff. Such argument is not persuasive as a basis for the admissibility of the document. To permit characterizations of evidence by counsel to carry over from one side to the other is to institute new, strange, vague and uncertain tests for the admissibility of evidence. We agree with the trial court that the weather report under the facts shown in this record offered nothing on any issue that was in dispute. The record establishes that the weather was inclement, and it is not denied.

Plaintiff likewise complains that the defendant did not call the witness, Russell Chism, whose name had been supplied to the plaintiff and who gave a statement to the plaintiff. The plaintiff argues that Chism was a very valuable and favorable witness to the defendant in that he could have established (1) that the steps were not wet, (2) that the housekeeping department had mopped the entranceway and stairs several times in accordance with custom and regulations and (3) that either verbal or written warnings were given the public in accordance with the custom and regulations. It is quite apparent from this record that this witness could not have done these things without committing perjury and without contradicting flatly his statement taken by the plaintiff. In his statement, he said that he was in the lobby, heard a commotion and came out and saw a man putting a lady into a wheelchair. He did not see the lady fall. He further stated “the steps were wet. I don’t know whether it was from rain or snow ... I don’t know whether or not the floor had been mopped that night ... No one specifically assigned to mopping floors that I know of ... I didn’t see anyone mop the steps after the lady fell . . . The water on the steps was just that which had been tracked in ... I don’t believe a person was any more apt to fall when the steps were wet than when they were dry. I saw some people fall when the steps were bone dry. I think I was delegated the duty of polishing the brasswork on the doors and rails.” These are the pertinent portions of the witness’ statement given to the plaintiff in writing and signed by the witness. Based on this situation as to Chism, the plaintiff contends that the trial court erred in refusing to give IPI Instruction 5.01, which in substance, states that the court may tell the jury that “if a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believed each of the following elements: (1) The witness was under the control of the party and could have been produced by the exercise of reasonable diligence; (2) The witness was not equally available to an adverse party; (3) A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him, and (4) No reasonable excuse for the failure has been shown.” Plaintiff cites Leming v. Oltman, 87 Ill App2d 97, 231 NE2d 621, in which this court held that it was proper to give this instruction where the record indicated a longtime friendship with the defendant, which suggested a likelihood that he would be biased against the plaintiff and the only reason assigned by defendant’s counsel was the mere statement that “he isn’t here” and that counsel did not intend to call him. That case was an automobile accident case in which the witness referred to was a passenger in the car and thus, a key witness. This is far afield from the situation before us here. The facts given in Chism’s statement to the plaintiff — and there is nothing that suggests that he would not have so testified on the trial — were facts and circumstances already established in the evidence and were merely cumulative. If his testimony would have aided the plaintiff, there seems to be little reason for her failure to call him. The record indicates that the plaintiff served notice on the defendant requesting that certain employees be present to testify pursuant to Supreme Court Rule 237, There is nothing that would indicate that Chism would not likewise have been available. There is nothing to indicate prejudice or bias in his statement. As stated in 135 ALR 1377, “It is the privilege of a suitor to call every person as a witness who may give material evidence in his favor, and if he omits to do so, he does it at his peril; but there is no duty, and an omission to call all that are within reach does not necessarily imply. a fraud or a design to suppress the truth or to impose a falsehood upon the jury.” To have given the requested instruction in this case and to permit counsel to argue to the jury the inference that the testimony of Chism would have been contrary to the defendant’s position is for the court to fly squarely into the face of Chism’s statement and permit an inference about his testimony which is simply not a fact. The giving of the instruction would have supplied an inference against the defendant which the statement of the witness does not warrant. The refusal of the instruction under the facts here shown was not error. Accordingly, for the errors assigned, a new trial is not warranted and the judgment of the trial court is affirmed.

Affirmed.

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


author: TRAPP, J.

text:
    Virgil Cutright, Plaintiff-Appellant, v. Civil Service Commission of Springfield, Illinois, and Harold C. Hawkins, Chairman, and James McGrath and A. F. Beudel, Members of the Springfield Civil Service Commission, and Joseph P. Knox, Commissioner of the Department of Public Health and Safety of Springfield, Illinois, Defendants-Appellees.
    Gen. No. 11,193.
    Fourth District.
    August 31, 1970.

      Horsley and Lott, of Springfield, for appellant.
    W. J. Simhauser, of Springfield, for appellees.
   TRAPP, J.

This case has been once reviewed as Cutright v. Civil Service Commission, 90 Ill App2d 289, 232 NE2d 312. We reversed the decision, affirming the discharge of the employee and remanded the cause to the Circuit Court with directions to reverse the decision of the Civil Service Commission, and to remand the cause for rehearing and consideration of any evidence on the issue of prejudice to the municipal service by reason of the employee’s conduct.

We then noted that the charges as filed did not appear in the record, but that the finding of the Commission was:

“11.03 . . . that the employee has committed an act or acts to the prejudice of the City Service,
99
((
“11.09 (i) — That the employee has failed to pay or make reasonable provision for the payment of his just debts.
“11.09 (j) — That the employee has committed a criminal offense or a misdemeanor involving moral turpitude; or has been intoxicated in public.”

We suggested that an anomaly was presented by reason of the fact that the Circuit Court found that there was not sufficient evidence to support the alleged violation of the specific rules 11.09(i) and 11.09(j), and in view of this, we were unable to determine what the Civil Service Commission found was the act prejudicial to the city service.

The cause was heard again by the Civil Service Commission, the previous testimony introduced and additional evidence was introduced to the effect that the City would lose revenue from not having the automobile assessed in Capitol Township, and that many city employees had automobiles. We had also noted that it was not then charged that the employee attempted to avoid a tax in Sangamon County but rather to avoid a tax in any county. The Civil Service Commission then entered written “Findings and Decision Adhering on Remandment.”

The new findings do recite that the charges are: That for the years 1962, 1963 and 1964, the employee applied for license plates giving his address as Greenview, Illinois; that prior, during and subsequent to those years he gave his voting address as Springfield, Illinois; that no personal tax was paid since 1960 in Menard County (Greenview); that the employee was not assessed for an automobile in Sangamon County (Springfield) for the years 1959 through 1965; that the employee’s actions in giving the different addresses in official places was done for the purpose of evading payment of personal tax on the motor vehicle, and that the acts are prejudicial to the city service.

The Commission made the following specific findings:

“13. That the evidence establishes that respondent filed applications for automobile licenses with the Auto Registration Division of the Office of the Secretary of State of Illinois for the years 1963, 1964 and 1965 on which he stated that his address was Greenview, Illinois; that on applications for ballots for elections held in the City of Springfield during the year 1964 he stated his address was 720 Fayette Avenue, Springfield, Illinois; that for said years his automobiles were not assessed for personal property tax in Menard County, Illinois, and he paid no personal property tax for an automobile either in Sangamon County or Menard County, Illinois.
“14. That the respondent designed such plans for the purpose of evading the payment of personal property tax on automobiles which he owned.
“15. That had the respondent listed and had his automobiles assessed in the taxing district in which he was residing in Springfield, Illinois, as required by the provisions of Section 538, Chapter 120, Illinois Revised Statutes, the City of Springfield, Illinois, his employer would have received a tax on said automobile for the year 1964 in the amount of $14.07 or $11.81 depending upon whether the 1963 Pontiac automobile was a Bonneville or Catalina model, and for the year 1965 the City of Springfield, Illinois would have received a tax of $12.20 or $10.36 depending upon the model of Pontiac automobile which the respondent owned; that this loss of actual tax revenue to the City of Springfield was established by the testimony of Virginia Rankin, Deputy Tax Assessor for Capitol Township, Sangamon County, Illinois.
“16. That the City of Springfield is dependent upon tax revenues from personal property taxes and other tax sources for its operation as a municipal government; that the City of Springfield had between 600 and 700 employees during the years 1963 through 1965, and that a majority of said employees owned automobiles.
“17. That the conduct and actions on the part of the respondent are prejudicial to the city service in that the City of Springfield was deprived of tax revenue which it otherwise would have obtained from personal property taxes had respondent listed and had his automobile assessed at his place of residence in Springfield, Illinois as required by law, and which tax revenues were needed by the City of Springfield in order that it might operate as a municipal government, and that such conduct and actions on the part of the respondent are prejudicial to the city service and constitute sufficient cause for Ms discharge and removal from the Civil Service Rolls of the City of Springfield, Illinois, under Section 11.03 of the Rules and Regulations of the Civil Service Commission of the City of Springfield, Illinois.”

The Circuit Court, on complaint for administrative review of the last mentioned findings and order, found that the specific findings, 13, 14 and 15 above quoted, were supported by the evidence. The Circuit Court also found that the Commission’s finding that the conduct was prejudicial to the city service was supported by the evidence.

Appellant contends that since the evidence with reference to the conduct of the employee has not been supplemented and the only new evidence is that the conduct deprives the City of a small amount of revenue and that the City has numerous employees from whom it expects to derive revenue, the record still falls short of showing that this conduct was detrimental to the public service.

While it is our duty, as we noted in our former opinion to be zealous in attempting to prevent discharge of Civil Service employees for trivial or frivolous reasons, and while the shortcoming must mean some substantial shortcoming which renders the continuance of an employee in office in some way detrimental to the discipline and efficiency of the service, it does not follow that this court can weigh the evidence or substitute its judgment for that of the Civil Service Commission when there is some evidence to support its findings and decision. Fenyes v. State Retirement System, 17 Ill2d 106, 111, 160 NE2d 810; Logan v. Civil Service Commission, 3 Ill2d 81, 87, 119 NE2d 754.

It is now clear that the Commission found that the combination of circumstances shown in making contrary statements as to his address in official applications for car registration and ballots, in failing to list the automobile at either address, whereas at all times it should have been listed as Springfield for tax purposes, taken together with the employee’s explanation, which the Commission chose not to consider a plausible explanation, showed a deliberate attempt to evade a tax due his employer. It is further clear that the City was deprived of some revenue, and that in view of the number of employees who might be potentially similar sources of revenue, the Civil Service Commission determined that the conduct was a serious shortcoming detrimental to the discipline and efficiency of the service.

Even though we might view the loss of revenue alone too trivial to merit dismissal of an employee with a good record of service, we cannot, where the Commission on reconsideration of the evidence supplemented as it is here, found the evasion of the City tax deliberate and detrimental to the service, say that the finding is contrary to the manifest weight of the evidence and substitute our judgment for that of the Commission.

In our previous review of the evidence, we pointed out the considerations we found favoring the employee’s view that the nonpayment of the tax was an oversight, and, in view of the Circuit Court’s finding that two of the charges were not supported by the evidence, the generality of the remaining charge and the failure of the Commission to make specific finding of the nature of the detriment to the Service, we felt that it was our duty to reverse the decision and remand the cause for rehearing and reconsideration of the detriment to the service. We cannot say that the detriment must be in all cases directly connected with the performance of the job, as for example reporting to work on time or failing to follow directions of a superior. The Commission has a right to consider other factors such as nonpayment of debts in reference to the example set by the employee’s conduct, even if the act or omission complained of is not directly connected with the daily performance of assigned duties.

The judgment of the Circuit Court is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: CRAVEN, P. J.,

text:
    Opal Weaver, Administrator of the Estate of Loren L. Weaver, Deceased, Plaintiff-Appellee, v. Bert Lovell, d/b/a Towne Tavern, Defendant-Appellant, and John E. Bowles, d/b/a Ken’s Tavern, Defendant.
    Gen. No. 11,200.
    Fourth District.
    August 31, 1970.

      Costigan & Wollrab, of Bloomington (William F. Costigan, of counsel), for appellant.
    Thomson, Thomson & Mirza, of Bloomington, and Carlon and Carlon, of Normal (Jerome Mirza, of counsel), for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This is a dramshop action brought by Opal Weaver as administrator of the estate of Loren L. Weaver, deceased, for loss of means of support of herself as widow and of the minor children of decedent. Defendants were Bert Lovell, operator of a tavern in Danvers, Illinois, and John E. Bowles, operator of a tavern in Blooming-ton, Illinois.

A jury trial resulted in a verdict of $40,000 in favor of plaintiff against Bert Lovell and a verdict against plaintiff on her suit as to John E. Bowles. A judgment of $20,000 was entered in favor of plaintiff against Bert Lovell and against plaintiff as to John E. Bowles. Lovell here appeals the judgment entered against him.

Weaver died in an automobile accident which occurred on July 15, 1967, in McLean County, between an automobile driven by Wayne Coyle and one driven by Loren L. Weaver. Plaintiff’s action is based upon the theory that Coyle was intoxicated at the time of the collision, that his intoxication was a cause of the collision, and that defendants each sold or gave him intoxicating liquor which caused, in whole or in part, his intoxication.

The automobile accident occurred on Route 22, two miles east of Stanford, Illinois, between the 1960 Chevrolet driven by Coyle and the 1955 Plymouth driven by Weaver. State Police Officer Wayne Hicks testified at the trial that he arrived at the scene of the accident approximately forty-five minutes after the accident occurred and that he observed the then position of the vehicles and the skid marks. He identified certain photographs of the accident scene and located on them an area which he judged to be the point of impact. The photographs, admitted into evidence, showed the damage to the vehicles, where they came to rest following the collision, and some 133 feet of skid marks left by Coyle’s car as it crossed the center line of the highway and struck Weaver’s car. The trooper expressed his opinion that “In my judgment the 1960 Chevrolet crossed the center line and struck the ’55 Plymouth in the westbound lane, I guess.”

The evidence shows that at approximately 10:00 a.m. on the day of the accident, Wayne Coyle visited Ken’s Tavern in Bloomington, operated by defendant John E. Bowles, where Coyle drank two 12-oz. bottles of beer and remained approximately forty-five minutes. He then drove thirty miles to Congerville, where he visited his brother-in-law, Carol Meyer, from 11:45 or 12:00 noon to 12:20 p.m., and there drank a 12-oz. can of beer. He left his brother-in-law and apparently drove to the Towne Tavern in Danvers which was operated by defendant, Bert Lovell, arriving there between noon and 1:00 p. m. He was in the Towne Tavern approximately one-half hour, where he had one drink consisting of an ounce of Paul Jones 80-proof whisky in a 7-oz. glass, mixed with ice and Coca-Cola. From the Towne Tavern he went to the home of an old friend, Charley Erps, where he remained for approximately a half hour. He then went to a restaurant in Danvers where he had coffee and something to eat. He returned to the Towne Tavern a little after 2:00 p. m., stayed there twenty minutes, and while there drank one highball containing an ounce of Paul Jones 80-proof whiskey, ice and Coca-Cola in a 7-oz. glass. He left the Towne Tavern at 2:30 p. m., which was the last that anyone observed him prior to the automobile accident at about 3:00 p. m.

Coyle was removed from the accident scene to St. Joseph’s Hospital prior to 4:00 p. m. Four hours later, a laboratory technician, at the request of a doctor, took a sample of his blood to make a blood-alcohol test. The blood-alcohol test was performed shortly after 9:00 p. m. Over objection, the medical technologist who performed the test testified that the percentage of blood-alcohol shown by this test was .04 percent weight per volume. The hospital records showed that a drug, Arrainine, was ordered for Coyle at 4:20 p. m.; that he was given phenobarbital at 4:20 p. m., an intravenous saline solution at 4:35 p. m., and a blood transfusion at 5:45 p. m. The technician who took the blood sample did not recall whether Coyle was conscious or unconscious at the time the sample was taken.

At the trial several lay witnesses who saw and observed Coyle on the day of the accident testified from their observations that he was sober.

Carol Meyer, his brother-in-law, testified that at the time of Coyle’s visit at his home from approximately 11:45 a. m. until 12:20 p. m., they conversed with each other and that, based upon his observation, Coyle was perfectly sober. Walter Siebert and Beda Siebert testified that they saw Coyle on his first visit, between noon and 1:00 p. m., at the Towne Tavern, saw him come in and leave and heard him talk to Dorothy DeHart. They observed him for approximately fifteen minutes. They expressed an opinion that he was sober. However, Beda Siebert said she didn’t talk to Coyle and she didn’t overhear any of his conversation. Dorothy DeHart was ill at the time of trial and did not testify. Charley Erps testified that while Coyle was at his home, he saw Coyle walk and talk, observed his motions, didn’t smell liquor or beer on him, and was of the opinion that he was sober. Beverly Neal, a waitress in the restaurant at Danvers where Coyle drank coffee and ate a ham sandwich at about 2:00 p. m., testified she talked with him there and that his appearance, speech and actions were normal at that time. Marilyn Lovell, the wife of Bert Lovell, was on duty in the Towne Tavern on the occasion of both visits of Coyle there. She testified that, in her opinon, Coyle was sober on both occasions.

Dr. John Maloney, a licensed physician and surgeon and the resident pathologist at St. Joseph’s Hospital, called by plaintiff, testified that he reviewed the results of the test for blood-alcohol which were .04 percent. Over objection that his testimony was highly speculative, he was permitted to testify that based upon the facts before him of the .04 percent blood-alcohol at 9:00 p. m. and then receiving 500 cc.’s of blood at 5:45 and a saline solution and phenobarbital, he would conclude that the blood-alcohol level in Coyle’s bloodstream at 3:00 p. m., six hours prior to taking of the sample, should be .16 percent if maximum absorption had occurred. He stated that he based this conclusion upon the constant that the straight-line rate of .02 percent per hour decrease by oxidation in blood-alcohol would be expected physiologically. He stated that he would tend to ignore the saline and blood transfusions.

Dr. Seymour Goldberg, a physician specializing in internal medicine, practicing in Bloomington, Illinois, called by plaintiff as an expert witness, testified over objection, in answer to a hypothetical question, that a male, 36 years of age, assumed to have consumed two 12-oz. bottles of beer between 10:00 and 11:00 in the morning, an additional or third 12-oz. bottle or can of beer between 11:45 a. m. and 12:15 p. m., a beverage consisting of one ounce of 80-proof whiskey mixed in a 7-oz. glass with ice between 12:00 noon and 1:00 in the afternoon, and another beverage consisting of a shot of 80-proof whiskey mixed in a 7-oz. glass with ice an hour and a half to two hours later, and who was involved in an automobile collision at 3:00 p. m. on that day, would have an impairment of his mental and physical faculties so as to diminish his ability to think and act with ordinary care at 3:00 p. m. that day.

Dr. Goldberg further testified that the degradation rate of alcohol is .02 percent per hour and that assuming a blood-alcohol test of an individual’s blood-alcohol level or percentage of alcohol in his bloodstream at 9:00 p. m. was .04 percent, it would have been at least .16 percent at 3:00 p. m., six hours earlier. He then testified that, in his opinion, based upon a reasonable degree of medical certainty, an individual with a percentage of .16 alcohol in his bloodstream would be drunk.

Defendant contends that it was reversible error to permit Dr. Goldberg to testify as an expert witness as to his opinion on the question of Coyle’s intoxication. He urges that this is a subject matter which is within the realm of common knowledge and requires no particular scientific knowledge, and that expert testimony elicited on a hypothetical basis is not admissible upon issues which are within the realm of common knowledge. Further, he contends that such testimony invades the function of the jury as it was the ultimate issue which was for the jury to determine.

It is a well-established rule of evidence that, generally, the opinions of witnesses are inadmissible as evidence as witnesses are to testify as to the facts and the jury is to draw the inferences and form the opinions which are to govern the case. However, this rule is relaxed in certain situations where the facts are patent to the observation of all, in which cases opinion testimony of lay witnesses qualified by observation is admitted. Drunkenness or sobriety are within this area, so that witnesses qualified by personal observations may state their opinions on intoxication. Such testimony of lay witnesses was presented by defendant in this case.

The general rule further has been relaxed to permit opinion evidence on questions of science, skill or trade by expert witnesses where there is need for such knowledge to aid the jury in determining the question in issue and in understanding technical and scientific aspects of the case.

In Dimick v. Downs, 82 Ill 570 (1876), the Supreme Court held that lay witnesses qualified by observations of a person, might express opinions, based upon such observations, as to whether a person was drunk or sober. There is language in that case which infers that such facts required no peculiar scientific knowledge. However, it was not a case in which an expert’s opinion was offered.

In Abramson v. Levinson, 112 Ill App2d 42, 250 NE2d 796 (1st Dist 1969), in considering opinion evidence of a reconstruction expert in an automobile accident case, this court observed that the need of such expert should be the exception rather than the rule, but we also there noted that expert testimony might be admitted where there is “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.” (At 50, 250 NE2d at 801.) We further observed in that case that such expert testimony was admissible under safeguards.

This matter was in issue in Nystrom v. Bub, 36 Ill App2d 333,184 NE2d 273 (2nd Dist 1962), and in Schneider v. Kirk, 83 Ill App2d 170, 226 NE2d 655 (2nd Dist 1967), both of which were dramshop cases. In Nystrom, where testimony was offered of a chemist employed by the Illinois State Bureau of Criminal Identification and Investigation that a hypothetical man, aged 39 years, weighing 130 pounds, with very little to eat during the day, who had three 12-oz. bottles or cans of beer between 10:00 and 11:00 p. m., would not have been intoxicated by midnight, the court held that it was not reversible error to refuse to admit such testimony by this particular witness. While the court there stated that where the court and jury can make their own deductions they should not be made by those testifying, it held that the question of qualification of an expert rests largely in the discretion of the trial court and that there was no abuse of discretion in refusing the testimony of the chemist in that case.

In Schneider, the same court that rendered the Nystrom decision reaffirmed the rule of the Nystrom case as to when expert testimony is admissible, but expressly overruled the application of the rule by the earlier case. Schneider held that it was reversible error to refuse to admit testimony of a pathologist on the question of whether the rate of oxidation and elimination of alcohol from the bloodstream was such that two beers drunk between 5:00 and 6:00 p. m. at the defendant’s tavern could not have contributed in whole or in part to intoxication of the alleged intoxicated person who drank nothing more until 9:30 p. m. at another place, after which the accident occurred.

We are of the opinion that no general rule can logically or reasonably be formulated to the effect that expert opinion testimony upon a matter or issue is never admissible where lay testimony may be had upon it. Each case must be considered in its factual background with the subject matter involved, the nature of the specific testimony offered, and in light of the particular question which is asked.

Defendant’s contention that it was error to permit Dr. Goldberg, as an expert, to give an opinion as to Coyle’s intoxication because it invaded the function of the jury, is not sound. While there were ultimate issues required to be determined there other than the issue of intoxication, the opinion on that subject, based upon assumed facts, did not usurp the function of the jury. The testimony was merely the opinion of the witness given upon a state of facts assumed to be true and the final determination remained for the jury. In Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 242-243, 166 NE2d 582 (1960), the court approved the discussion of this problem in Chicago Union Traction Co. v. Roberts, 229 Ill 481, 484, 82 NE 401 (1907), where it was said:

“. . . It is not the province of an expert to act as judge or jury. He cannot be called upon to decide a question of fact. The object of a hypothetical question is to obtain the opinion, upon a subject not within the knowledge of men of ordinary experience, of one who by a previous course of habit or study has acquired a knowledge of that subject. The hypothetical statement of facts must be taken to be true. The opinion is permitted to be given to enable the jurors to draw the inferences from the evidence which their want of knowledge would otherwise prevent. In this case the question was whether the appellee’s condition was due to traumatism or other causes. It was a question for the jury to determine, but it was impossible for them to answer without hearing the opinions of physicians. These opinions did not invade the province of the jury. (Citing cases.) . . . .”

The Clifford-Jacobs case further held the form of the question in terms of “what did” or “what might” have caused the injury was immaterial. (At 243, 166 NE2d at 587.) To the same effect is Carlson v. New York Life Ins. Co., 76 Ill App2d 187, 222 NE2d 363 (2nd Dist 1966).

While an expression of opinion by a lay person as to intoxication based upon observation of an individual is permissible, the subject is one in the medical field where the assistance of expert testimony will aid the jury in reaching a conclusion. It was not reversible error, therefore, to permit the expert to give his opinion based upon the hypothetical question even though lay opinion testimony had been presented on the same subject matter.

No contention is made on this appeal of error in admitting the testimony of Dr. Maloney or of Dr. Goldberg as to rate of oxidation and absorption of alcohol in the bloodstream, or the opinion given by Dr. Goldberg that an individual with .16 percent alcohol in his bloodstream would be drunk. These were proper subjects for expert testimony as they concerned matters outside the knowledge of the average person and were relevant and significant evidence on a material issue in the case. Schneider v. Kirk, supra; Miller v. Pillsbury Co., 33 Ill2d 514, 211 NE2d 733 (1965).

Defendant contends, however, that the results of the chemical analysis of Coyle’s blood were improperly admitted and resulted in reversible error since the standards for admission of such tests and the acquisition of blood samples for the purpose are governed by section 144, chapter 95%, Ill Rev Stats 1969. He further contends there was failure to comply with these guideline standards in that the evidence shows Coyle did not consent to the taking of blood from his body and no law-enforcement officer requested the test be made.

The statute referred to is a portion of the Illinois Motor Vehicles Act which is concerned primarily with the offense of driving while intoxicated and the revocation of a chauffeur’s or operator’s license for that reason. Subsection (c) of this section provides:

“Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time . . . alleged as shown by a chemical analysis of his . . . blood, ... is admissible, as provided hereinafter in this paragraph (c) and the result of any such analysis shall give rise to the following presumptions: . . . .”

The section further provides that evidence based upon a chemical analysis shall not be admitted “unless such substance was procured and such analysis made with the consent of the person as provided for in section 47.1 of this Act, . . . whose bodily substance was so analyzed.” (Section 144, subsection (c), par 3.) (Footnote omitted.) Subsection (d) requires the analysis to be made according to certain standards. Subsection (e) provides that when an unconscious person is given a blood test at the request of a law-enforcement officer under section 47.1 of the act, only a physician authorized .to practice medicine in all its branches, a registered nurse, or other qualified person may withdraw blood.

While the language of subsection (c) of section 144 is broad as to the type of proceeding to which the provisions apply, it is not exclusive as to the admission of testimony as to the results of blood-alcohol sample tests in proper cases. The statute merely provides that the results of a blood-alcohol analysis test, when taken under the standards therein provided, shall give rise to certain presumptions as therein set forth. It specifically provides that its provisions shall not limit the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. The provisions of this section that the results of the test shall not be admitted unless the substance was procured and the analysis made with the consent of the person “as provided for in Section 47.1 of this Act, . . .” and as to a test taken on an unconscious person at the request of a law-enforcement officer “under Section 47.1 of this Act, . . .” are meaningless since there is no section 47.1 to the act. In any event, these limitations did not apply in the instant case. The testimony here was not limited to the raising of the statutory presumption but was used as the basis for expert testimony. The testimony as to the results of the blood-sample tests was not rendered inadmissible in this proceeding by the statute. The jury was entitled to consider this testimony along with all other properly admitted testimony on the subject of intoxication.

Defendant further contends as error certain statements made by plaintiff’s counsel in his argument to the jury which he says, by inference, informed the jury that defendants were insured against the liabilities imposed by the Dram Shop Act. These consisted of a statement that the sale of liquor caused certain dangers and harms but that such sale had been permitted under the regulations of dramshop legislation; that an industry producing such harms and ills bears a responsibility for what it produces; and that “The liquor business is aware of this responsibility and they can make plans and be aware of the contingency that results.” This argument did not expressly mention the term “insurance,” and a reasonable interpretation of it results in other reasonable and logical meanings than that defendants here were insured. While we do not condone this type of argument, we do not deem it a ground for reversible error.

As a final ground for error, defendant contends that the instant case being a “by” theory dramshop case, plaintiff must prove that the death of Weaver was caused by the tortious act of an intoxicated person and that the evidence here fails to prove a wrongful or tortious act on the part of Coyle. The testimony of the State Police and the admissions of defendant’s counsel on closing argument affirmatively show that Coyle’s car struck Weaver’s car in Weaver’s lane of traffic. No contradictory testimony appears. Such proof was sufficient to sustain plaintiff’s burden of proof that the death was caused by tortious or fault conduct. Schneider v. Kirk, supra.

We find that no grounds for reversible error exist and that the trial court judgment should be affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.


author: EOVALDI, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Jenkins, Defendant-Appellant.
    Gen. No. 11,207.
    Fourth District.
    August 31, 1970.

      Duane L. Traynor, Traynor & Hendricks, of Springfield, for appellant.

      Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield (Charles Anthony Packard, Assistant State’s Attorney, of counsel), for appellee.
   EOVALDI, J.,

delivered the opinion of the court.

Defendant appeals from his conviction on a charge of driving an automobile while under the influence of intoxicating liquor. His conviction of this misdemeanor resulted in a fine of $100.

The record discloses that at 1:40 a. m. on July 10, 1969, the defendant was arrested by a State trooper and taken to the Sangamon County jail, having been charged with driving while under the influence of intoxicating liquor. At 10:00 a. m. on the same date, he was arraigned before a magistrate in the circuit court. The magistrate informed the defendant of the nature of the charge against him, advised him of his right to remain silent, and advised him that he was entitled to a trial by jury and that he was entitled to counsel of his own choosing. The magistrate also advised the defendant of the possible penalty that could be imposed by the court for the charged offense.

Following this admonition, the defendant informed the magistrate that he was not represented by counsel and had no desire to obtain a lawyer.

The defendant then pleaded guilty to the charge of driving an automobile while under the influence of intoxicating liquor. Following his plea but prior to the imposition of sentence, the defendant stated to the magistrate :

“I also wish to state for the record that while I was in the Sangamon County jail I was refused to the right to make a phone call, and I was refused to the right of counsel.”

The court again inquired of the defendant as to whether or not he desired to retain counsel. The defendant replied in the negative and advised the court that this was his first offense.

Following this colloquy, the defendant signed a waiver of a jury trial and entered a written plea of guilty. The magistrate assessed a fine in the amount of $100, the minimum fine, which fine the defendant paid.

Four days later, the defendant filed a verified petition to vacate the judgment of conviction and sought leave to withdraw his plea of guilty. This petition was heard on July 23, 1969, and denied. This appeal follows.

It is the defendant’s contention in this appeal that his civil rights were so violated as to require this court to discharge him, or he contends that we should hold that the trial court abused its discretion in refusing to grant the defendant’s petition to vacate the judgment of conviction. It is further asserted that the trial court erred in accepting a plea of guilty from the unrepresented defendant where the trial court failed to advise him of all of the consequences of the plea.

Our review of this record persuades us that the defendant was fully admonished as to all of the judicial consequences that could flow from his plea of guilty. The plea of guilty was voluntarily made.

We are not persuaded that the plea of guilty was in any way induced by the refusal to allow the defendant access to a telephone, and the record clearly demonstrates that the defendant had ample opportunity to obtain a lawyer. There is no suggestion whatsoever in this record that any of the proceedings in the trial court were other than proper. See People v. Scott, 43 Ill2d 135, 251 NE2d 190 (1969).

The defendant also contends that the court did not sufficiently advise him of the consequences of his plea of guilty because he was not told that a plea of guilty would result in the revocation of his driver’s license. A revocation of a driver’s license for one year by the Secretary of State is part of the regulatory measures under the police power of the State governing traffic upon the highways, but it is no part of the punishment administered by the court and does not constitute loss of any property or civil right. People v. Kobylak, 383 Ill 432, 50 NE2d 465 (1943).

The provision of the statute requiring the court to advise a defendant of the consequences of his plea means those consequences which constitute punishment to be imposed by the court. People v. Thomas, 41 Ill2d 122, 242 NE2d 177 (1968). It is not necessary that a court advise a defendant of the innumerable side effects which are not part of a sentence to be judicially imposed.

In his reply brief, defendant requests that his motion to withdraw his guilty plea be treated as a motion under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 72). An inspection of the record discloses that no facts are presented either in the motion to withdraw his plea or in the defendant’s affidavit attached thereto which are sufficient to bring this case within section 72 of the statute.

Upon a careful review of the proceedings, we find that the trial court properly admonished the defendant of the consequences of his plea of guilty to the misdemeanor charged; that defendant’s plea was voluntarily made; that the admonition of the trial judge was sufficient; and that the trial judge was correct in denying defendant’s petition to vacate the judgment of conviction.

Judgment affirmed.

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


author: PRESIDING JUSTICE CRAVEN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joe Meny, Defendant-Appellant.
    Gen. No. 11,210.
    Fourth District.
    August 31, 1970.
    Albert E. Hurt, Public Defender, of Decatur, for appellant; Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Thomas J. Yoekey, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE CRAVEN.

Not to be published in full.


author: JUSTICE THOMAS J. MORAN

text:
    Sally D. Dear, Plaintiff-Appellant, v. Philip F. Locke, Robert M. Haenisch, Stanley A. Lynch, Stanley A. Lange, and Ralph C. Dear, Defendants-Appellees.
    Gen. No. 69-176.
    Second District.
    September 1, 1970.

      Sally D. Dear, pro se, of Wheaton, appellant.
    Corrigan, Mackay, Quetsch and O’Reilly, of Wheaton, and Hinshaw, Culbertson, Moehnann, Hoban and Fuller, of Wheaton, for appellees.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal is brought by the plaintiff, pro se, from an order denying her leave to plead as a poor person and orders dismissing all defendants joined herein.

The plaintiff, on November 27,1968, filed a three-count complaint for false imprisonment, malicious prosecution and “intimidation.” In count one, she alleged that the defendant, Philip Locke, a circuit judge, on November 22, 1966, verbally ordered her to appear before him with her children on November 25, 1966, to participate in a hearing to determine visitation rights of defendant, Ralph Dear, father of their children; that the judge had no jurisdiction to so order because she had perfected an appeal in the matter; that she did not appear; that the judge’s secretary called the plaintiff on the morning of November 25, 1966, and that she, afterward, in company with the children, left the county; that the judge, on his own motion, entered an order commanding the clerk, defendant Robert M. Haenisch, to issue a writ of attachment and the same was issued; that a deputy sheriff was unable to locate the plaintiff that morning; that on November 28, 1966, the plaintiff filed a short record in this Court pursuant to her appeal aforementioned; that on this same day the defendant Stanley Lange, a deputy sheriff under defendant Stanley A. Lynch, sheriff, took her into custody under the writ of attachment; that at about 4:05 p. m. she was “booked . . . fingerprinted, deprived of her possessions and put into a cell against her will”; that about 5:00 p. m. she was brought before the judge; that a hearing on visitation rights was had (to which she objected on the grounds that the court was without jurisdiction), and concluded at 6:00 p. m. when she was released without being cited for contempt; that the acts of the defendants were malicious and constituted unlawful restraint to her damage, both actual and exemplary.

The second count reiterated the above and alleged that she had been injured in her credit and reputation; that such acts constituted malicious prosecution by defendants Locke and Dear, and that she had suffered both actual and exemplary damages. The third count, directed against the latter two named defendants, realleged the same acts set forth in count one and was based upon intimidation under section 12-6 of the Criminal Code (111 Rev Stats 1965, c 38, § 12-6), (for which a penalty is invoked) , and that she was entitled to damages.

On March 27,1969, the plaintiff filed a motion for leave to prosecute her action as a poor person and for the appointment of counsel. (Ill Rev Stats 1967, c 33, § 5.) The motion was supported by affidavit which set forth the financial status of the plaintiff. This was denied, after hearing, by the court.

Defendant Dear filed a motion to dismiss the complaint on the basis that it failed to state a cause of action against him. Defendants Haenisch, Lynch and Lange filed motions for summary judgment and dismissal relying upon sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill Rev Stats 1967, c 85, §§ 8-102, 8-103). Defendant, Locke, filed a motion for judgment on the pleadings grounded upon the fact that the complaint failed to state a cause of action for damages against him while in the performance of his judicial duties. The trial court allowed the motions of all defendants and this appeal followed.

The plaintiff claims that (1) the denial of her motion for leave to prosecute as a poor person and the appointment of counsel was an abuse of discretion; (2) denial of counsel deprived her of due process and equal protection under the law; (3) that the complaint was sufficient to state a cause of action against defendant Dear; (4) that the doctrine of judicial immunity did not bar her action against defendant Locke and (5) that the tort immunity act did not bar her action against defendants Haenisch, Lynch and Lange.

Plaintiff, in support of her motion to plead as a poor person and to have a lawyer appointed, filed an affidavit pursuant to Supreme Court Rule 298 (Ill Rev Stats 1967, c 110A, § 298), which in its relevant averments stated that the plaintiff’s occupation is that of a mother and homemaker; that support payments from defendant Dear constituted her only means of subsistence for herself and her two sons; that the support payments amounted to $5,350 in 1968; that her income for 1969 was uncertain due to litigation, but may be as little as $4,160, but would not exceed $5,720; that the ownership of the house in which she lived was not clear due to litigation and that there would probably be no equity in it if she did sell it; that she applied to plead as a poor person involving litigation with defendant Dear in 1968, and the court allowed her previous applications pursuant to chapter 40, section 16; that she is a poor person unable to prosecute this suit or pay the costs and expense thereof; and that she believes she has a good cause of action and a meritorious claim upon which she will recover at law.

It has long been established in this state that leave to prosecute an action as a poor person pursuant to section 5 of the Costs Act (Ill Rev Stats 1967, c 33, § 5) is within the sound discretion of the trial court, subject to reversal when such discretion has been abused, Beal v. Pratt, 67 Ill App 483, 484 (1896). Section 5, supra, states that after the court is satisfied that the plaintiff or defendant is a poor person it “may assign to such person counsel, who . . . shall perform their duties in such suit without any fees, charge or reward . . . .” While it is not necessary that one be a pauper to be granted leave to plead as a poor person (see, The People v. Chytraus, 228 Ill 194, 200 (1907)), the trial court, in the case at bar, could have reasonably concluded that plaintiff was not a poor person within the meaning of' section 5. Considering the plaintiff’s averments in her affidavit in support of her motion to plead as a poor person, this court is of the opinion that the trial court did not abuse its discretion in denying the plaintiff’s motion.

Plaintiff next contends that she was denied due process and equal protection of the law when the trial court denied her court appointed counsel. She cites, The People v. Lewis, 413 Ill 116, 108 NE2d 473 (1952) as her sole authority. The court in the Lewis case concluded that the defendant was not afforded the procedural safeguards necessary for a fair trial because only 24 hours had elapsed between the defendant’s arrest and sentence. During the 24-hour period she had been surrounded by only the police and prosecuting authorities. The testimony in that case showed that the defendant was in a highly emotional and confused state of mind.

The circumstances in the Lewis case and the instant case are radically different; the former was a criminal matter, while the case at bar is a civil proceeding. In addition, the plaintiff in the case at bar, took two years to file her complaint after the cause of action accrued. Plaintiff then waited an additional 2 months before asking leave to plead as a poor person and have counsel appointed. The plaintiff, presumably, was receiving her support payments from her former husband during the above periods.

Considering the above circumstances, and in reviewing the record of the case at bar, this Court finds no merit to plaintiff’s contention that she was denied due process and equal protection of the laws by the trial court’s denial of court appointed counsel.

Plaintiff’s next contention is that her complaint was sufficient to state a cause of action against the defendant Dear. The plaintiff in substance alleges in her complaint that this defendant went to her home and “snatched” her daughter after she was taken into custody. Plaintiff then alleged that Judge Locke entered a visitation order for the benefit of defendant Dear.

Based upon these allegations, she argues that she stated a good cause of action for false imprisonment and cites, as her authority on this point, ILP, False Imprisonment, § 6, which, in part, states:

“In order that a person may be liable for false imprisonment, it must appear that he personally participated therein by direct act or by indirect procurement.”

A court must accept as true, fact allegations of a complaint as well as reasonable inferences which can be drawn from those facts, In re Estate of Hansen, 109 Ill App2d 283, 295, 248 NE2d 709 (1969). While pleadings are to be liberally construed, and formal or technical allegations are unnecessary, the complaint must still allege facts necessary to state a cause of action and it is a fundamental rule that the test of the sufficiency of a complaint is whether or not necessary elements or essentials of a cause of action are alleged. Bauscher v. City of Freeport, 103 Ill App2d 372, 376, 243 NE2d 650 (1968).

In the case at bar, there is no showing by the plaintiff in her complaint that the defendant Dear personally participated in, by his direct act or indirectly, in procuring her alleged false imprisonment. Indeed, plaintiff alleges that the court on its “own motion” issued an order on which the plaintiff was eventually taken into custody. Plaintiff, in her complaint, does not allege that defendant Dear had anything to do with the order being entered.

Plaintiff then maintains that defendant Dear pursued a course of conduct that amounted to an adoption or ratification of the false imprisonment and he was, therefore, liable. We do not agree. Plaintiff’s complaint goes on to allege that the court entered a visitation order for the benefit of defendant Dear. The complaint fails to allege what course of conduct defendant Dear pursued in having this order entered. There is no showing by the plaintiff in her complaint, of how the defendant Dear adopted or ratified her false imprisonment so as to render him liable.

Causes of action arise out of. facts and when they are based upon a wilful tort they should allege, with particularity, the facts giving rise to the claim. Bauscher v. City of Freeport, supra, at 376. With regard to defendant Dear, plaintiff has failed to do so.

Plaintiff’s next contention is that the doctrine of judicial immunity does not bar suit against Judge Locke. Plaintiff maintains that on November 25, 1966, Philip F. Locke was acting without jurisdiction and authority when he entered an order commanding the circuit clerk to issue a writ of attachment which in turn commanded the sheriff to take the plaintiff into custody. She claims that the trial court was without jurisdiction to enter this order (setting the hearing on visitation rights) because she had perfected an appeal from a previous order which was dated October 28,1966.

In substance, plaintiff bases this contention on two points: (1) the act complained of was not within the court’s jurisdiction and (2) that the act complained of was not a judicial act. What the plaintiff overlooks is the fact that the previous order entered by the trial court on October 28, 1966, from which she filed her notice of appeal on November 16,1966, pertained only to the granting of custody and control of the children to defendant Dear on certain dates. See Dear v. Dear, 87 Ill App2d 72, 230 NE2d 385 (1967). Subsequently, the trial court on November 22, 1966, vacated the order appealed and on November 28, 1966, entered a new order which, instead of granting custody to defendant Dear, gave him visitation rights on certain dates. On December 14, 1966, the plaintiff filed a new notice of appeal which included the orders of November 22, 1966 and November 28, 1966. See Dear v. Dear, 87 Ill App2d 77, 230 NE2d 386 (1967). In this latter appeal we reversed the order of November 22, 1966, but did not pass upon the order of November 28, 1966, because it was a moot question. However, in that case, the plaintiff made the same argument as in the instant case and at page 79 we said:

“. . . The plaintiff claims that the trial court was without jurisdiction to enter this order because her notice of appeal from the order of October 28, 1966, took away any jurisdiction that the court had, relative to the case in the future. We do not agree;
99

We have reiterated much that was stated in the earlier appeals involving the plaintiff and the defendant Dear to show the sequence of events leading to the status of the plaintiff at the time the writ of attachment (the basis for the complaint in the instant appeal) was executed on November 28, 1966. Plaintiff claims that her notice of appeal filed on November 16, 1966, from the “custody” order, divested the trial court of all jurisdiction to proceed to determine the visitation rights of the parties with their children.

It is a general rule that when a notice of appeal is filed, the jurisdiction of the trial court ceases, but, like most general rules, such rule is subject to exceptions. One exception is that the trial court retains jurisdiction to hear and determine matters which are independent of, and collateral to, the subject matter on review where a supersedeas has not been perfected. Shapiro v. Shapiro, 113 Ill App2d 374, 383, 252 NE2d 93 (1969).

The notice of appeal filed on November 16, 1966, by the plaintiff was not made a supersedeas and concerned only the “custody” order. This left the trial court without jurisdiction over that subject matter and we so held in Dear v. Dear, 87 Ill App2d 77, 79, 230 NE2d 386. However, the matter of visitation was independent of and collateral to the issue of custody and had not been decided by the trial court until November 28, 1966, the same date the writ of attachment was executed. The notice of appeal from the trial court’s order of this date was not filed until December 14, 1966. We recognize that matters of custody and visitation of children are ordinarily provided for in the same order; this is not the fact in the instant case. Based upon these circumstances we are of the opinion that the trial court had jurisdiction to enter its verbal order of November 22, 1966, and to enforce said order by its order of November 25,1969.

Whether an act is or is not judicial is determined by the character of the act. Generally, where the law defines and prescribes the duties to be performed by an officer with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial in character; but where the act to be done involves the exercise of discretion or judgment or the officer is called upon to pass upon evidence and decide, performance of that duty is a judicial act. (See 46 Am Jur2d, Judges, § 83.) We believe that Judge Locke performed a judicial act when he caused the said order to be entered.

Plaintiff’s next contention is that the tort immunity act does not bar suit against defendants Haenisch, Lynch and Lange. She maintains that since the law is that a judge is liable for damages for injuries for acts done in clear absence of law, jurisdiction or authority, it follows that other officials whose duties are related to judicial process would be similarly liable for injuries caused by such acts. We have already determined that the acts of the trial court were within its jurisdiction and therefore further comment as to this contention is unnecessary.

Plaintiff further argues that the issuance and execution of the writ and her alleged false imprisonment by these three defendants were not official acts within the scope of their employment and therefore did not come within the tort immunity act. Section 8-102, supra, provides that within 6 months after the injury or cause of action has accrued notice must be given before suit is commenced against “. . . a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury . . . .” Section 8-103 provides that if the required notice of section 8-102 is not served, then “. . . any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.”

The plaintiff did not give any notice but filed her complaint two years to the day after the alleged cause of action accrued. The question then becomes whether defendants Haenisch, Lynch and Lange were acting within the scope of their employment at the time of the alleged offenses.

The acts which the defendants Haenisch, Lynch and Lange carried out in the case at bar are the essence of their employment. By statute, the clerks of the circuit courts are required to “. . . perform all other duties pertaining to their offices, as may be required by law or the rules and orders of their courts respectively . . . .” Ill Rev Stats 1967, c 25, § 13. Similarly, it is the statutory duty of sheriffs (and subordinates) to “. . . serve and execute, within their respective counties, and return all writs, warrants, process, orders and decrees of every description that may be legally directed and delivered to them.” Ill Rev Stats 1967, c 125, § 15.

This court believes that the defendants Haenisch, Lynch and Lange were in the course of their employment and were merely following their duties as set out by the above statutes. Plaintiff, not having complied with tort immunity act provisions as to notice, is thereby barred from suing the defendants Haenisch, Lynch and Lange; therefore, no error was committed by the trial court in this respect.

Plaintiff has raised other issues for the first time in her reply brief. These issues will not be considered. Supreme Court Rule 341(e) (7) and (G); Haffa v. Haffa, 115 Ill App2d 467, 476, 253 NE2d 507 (1969).

For the reasons herein stated, we find that there was no error committed by the trial court.

Judgment and orders affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    Norman Freberg, Plaintiff-Appellee, v. The Board of Trustees of the Firemen’s Pension Fund of the City of Highland Park, Illinois, Defendant-Appellant.
    Gen. No. 69-200.
    Second District.
    September 1, 1970.

      LeRoy W. Gudgeon, of Chicago, and Berle L. Schwartz, Assistant Corporation Counsel of City of Highland Park, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

Plaintiff was denied a disability pension by the defendant. Upon administrative review, the trial court reversed the order of the defendant and this appeal followed.

In June of 1947, the plaintiff became a member of the fire department of the City of Highland Park and, shortly thereafter, was enrolled as a beneficiary under defendant’s fund. Except for one minor incident, plaintiff’s service record was good and, through the years, he attained the rank of Lieutenant.

On November 18,1965, plaintiff was suspended without pay, for conduct unbecoming an officer, the suspension grounded upon acts (which the plaintiff admitted) of indecent exposure before children.

A formal proceedings was conducted before a hearing officer of the civil service commission, during which plaintiff was represented by counsel. Introduced at this hearing was testimony of the plaintiff, his wife, the chief of the department and a psychiatrist. It was the plaintiff’s theory that his acts had been the result of a mental disturbance which was of a temporary nature, that said disturbance was corrected and that he should be returned to service. The hearing officer rendered a written report to the civil service commission, which report included findings of fact, conclusions of law and fact, recominendations, and comments. It was the hearing officer’s recommendation that the plaintiff be suspended, without pay, for one year.

Upon review before the full civil service commission, the hearing officer’s findings of fact and conclusions of law and fact were adopted by the commission. His recommendation that the plaintiff be suspended for one year was overruled, and the plaintiff was discharged as of July 19,1967.

No appeal was taken from this decision.

On November 6, 1967, the plaintiff, through his attorney, made application to the defendant board for a nonservice connected disability pension under section 4-111 of the Illinois Pension Code (Ill Rev Stats 1967, c 108%, § 4-111). At the hearing, certain documentary evidence was introduced, which included the findings of the defendant’s doctor who examined the plaintiff and issued an opinion that the plaintiff was “. . . a permanently emotionally disturbed fireman and should not return to his work.” On June 14, 1968, the defendant rendered a decision which denied the plaintiff’s application for a disability pension and directed that its treasurer refund to the plaintiff, on demand, the total amount of his contributions to the fund.

Upon administrative review, the trial court entered an order reversing this decision and remanding the matter to the defendant with directions to grant plaintiff’s application for a disability pension as of the date of his termination from the service and, further, rescinding the defendant’s order refunding the plaintiff’s contribution to the fund.

On appeal, the defendant argues (1) that a pension cannot be granted to an applicant who has been discharged prior to attaining a minimum of 20 years of service and (2) the evidence sustains the finding of the defendant that the plaintiff was not permanently mentally disabled.

Between the time of the civil service commission hearing and that of the pension board hearing, plaintiff has changed his position. During the former proceedings he claimed that his condition was temporary, not permanent, that he had been cured and that he should be restored to active duty. In this proceedings, however, it is now plaintiff’s position that his discharge was based upon a permanent mental disability which occurred prior to the discharge and that he, therefore, should be entitled to a disability pension under the statute.

It is defendant’s argument that, upon his discharge, the plaintiff ceased to be a fireman and was thereafter barred from receiving any benefits under the same section of the statute.

The section in question (Ill Rev Stats 1967, c 108%, § 4-111) reads as follows:

“Disability pension — not in duty. Any fireman having at least 10 years of creditable service who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found, upon examination by a competent physician ordered by the Board, to be physically or mentally permanently disabled so as to render necessary his retirement from service in the fire department, shall be granted a disability pension of 50% of his monthly compensation at the date of such retirement.”

We feel it essential to consider other sections of the same article to determine the intent of the Legislature in the specific section here involved.

Section 4-112 of the Code (Ill Rev Stats 1967, c 108%, § 4-112) relates to the cessation of disability pensions and states:

“Upon satisfactory proof being made to the Board that a fireman on the disability pension roll has recovered from his disability, the Board shall order that his pension cease. The fireman shall report to the marshall or the chief of the fire department, who shall thereupon order his reinstatement into active service, in the same rank or grade which he held at the time of his retirement for disability.”

Section 4-113 (Ill Rev Stats 1967, c 108%, § 4-113) concerns an option for those upon disability and states:

“A fireman who completes 20 years of service and is age 50 or more, and who is on the disability pension roll under the foregoing sections, may, at his option, by written application to the Board, continue to receive, in lieu of any amounts which otherwise would be payable to him under Section 4-109 of this Article, a retirement pension for the remainder of his life, of % of his monthly salary at the date of his retirement on disability. A fireman electing to exercise such option shall be entitled as creditable service, in addition to the periods included in computing a fireman’s service under Section 4-109 for the time he was on disability. . . .”

Section 4-116 of the Code (Ill Rev Stats 1967, c 108%, §4r — 116), applicable to the refunding of contributions paid into the fund, states:

“A fireman having less than 20 years of service who resigns or is discharged after the effective date of this amendatory Act of 1965, and who has not theretofore received any disability pension payments, shall be entitled to a refund of the total amount contributed to the fund from his salary during such service. In the event of his re-employment in the service, such prior period of service shall not be included in determining his eligibility to a pension, unless upon his re-entry he reimburses the fund in full for the amount refunded. . . .”

In section 4-111, the phrase, “. . . so as to render necessary his retirement from service . . „ ,” implies that the individual must still be a fireman at the time of application. Additionally, we interpret the words, “any fireman” to mean a fireman on active duty, one on inactive duty, one on a leave of absence, one suspended, or one retired, but not an individual who has been discharged. A fireman, once discharged, ceases to be a fireman and his employment in such capacity is terminated. In the case at bar, the order of discharge was not appealed and was therefore final; the plaintiff can no longer be termed “a fireman.”

Under section 4-112, when a disabled fireman recovers, his pension ceases and he is then ordered reinstated to active service by the fire chief or marshall. In the instant case, the fact that plaintiff has been discharged precludes the possibility of any reinstatement.

Under section 4-113 (and the circumstances of this case), if plaintiff was to be allowed a disability pension, he would eventually have a right to apply for a regular pension since the time on disability pension accrues as creditable service time toward the 20 years necessary for retirement.

The effect of accepting plaintiff’s theory would be to place him in a special classification wherein he would receive the benefits of these sections, without being bound by the obligations. Thus, a person discharged for cause would benefit from a special classification which arose from that discharge, permitting him to profit from his own misconduct. We cannot interpret this to be the intent of the Legislature.

From a reading of the statute as a whole, it is our opinion that the plaintiff is not entitled to receive a disability pension under the circumstances of this case.

In McGann v. Harris, 114 Ill App 308 (1904), the applicant, a policeman, had, in the line of duty, suffered a permanent injury. He was later discharged, not for cause as in the instant case but for political reasons. Subsequently, he applied for a disability pension. The statute involved, while relating to a policeman and concerning in-service connected disabilities, was similar to the statute in question and the Court, in denying the pension, stated, at pages 310-311:

“. . . the statute apparently contemplates that a policeman physically disabled while in, and in consequence of the performance of his duty shall be retired from active service, it regards him as still a member of the force notwithstanding such retirement, subject to be assigned to duty in case of emergency. It is true that statute does not in terms require that he shall be a member when he makes his request for retirement and pension, but only that he shall have received his disability while in, and in consequence of, the performance of his duty as such member. Yet no power is conferred upon the Board of Police Pension Fund Commissioners to reinstate a policeman who has been discharged. Appellee was not, apparently, under the protection of the Civil Service Act, and whatever may have been the reason assigned for his discharge, it does not appear and is not claimed that the discharge was not at the time lawful, even if unjust. He can only be reinstated by rightful authority, and until reinstated, it is not, we think, in the power of the board to retire and pension Mm.”

(Followed in People v. Board of Police Fund Com’rs, 116 Ill App 252 (1904).) Where the language of a statute is not clear, it is proper for the courts to compare other statutes on the same subject matter even though not strictly in pari materia. Bergin v. Board of Trustees, 31 Ill2d 566, 574, 202 NE2d 489 (1964).

Our attention is directed toward Fenyes v. State Employees’ Retirement System of Illinois, 17 Ill2d 106, 160 NE2d 810 (1959). In that case the appellant had voluntarily resigned and, within a few months thereafter, expired. Application was made for a death benefit, which was denied. At page 108, the Court said:

“It is conceded that the plaintiff would be entitled to the ordinary death benefit if decedent died while in service, but that she would not qualify for such benefit if he had effectually withdrawn from the service prior to his death. In the latter event, plaintiff would be entitled only to a refund of the accumulated contributions which decedent had made. (Ill Rev Stats 1957, chap 127, pars 222, 226.) Section 3-21 provides that ‘ “Withdrawal from service” means complete severance of employment of any member as an employee of the State or of all Departments, by resignation, discharge or dismissal.’ Ill Rev Stats 1957, chap 127, par 217.”

A review of the statutory amendments subsequent to the cases cited above would indicate that although the Legislature had the issue brought to their attention through McGann, etc., and has had repeated opportunities to amend the questioned verbiage, no substantial changes have been made which would refute the Court’s interpretation of legislative intent. We must, therefore, conclude that, on this point, judicial interpretation has correctly read the legislative intent.

Having concluded that the plaintiff is not entitled to a disability pension under the circumstances of this case, we need not reach the question of whether his was a disability of a permanent nature.

The judgment of the trial court is reversed and the order of the defendant is affirmed.

Judgment of the trial court reversed; order of the defendant board affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


text:
    Florence Howison, Plaintiff-Appellee, v. Robert W. Howison, Defendant-Appellant.
    Gen. No. 69-203.
    Second District.
    September 1, 1970.

      Neuendorf and Nickels, of Sandwich, for appellant.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal is from an order denying the defendant’s counterclaim for divorce founded upon desertion and extreme and repeated mental cruelty.

The plaintiff and defendant were married in 1942. On September 28, 1967, the plaintiff left the marital home and the following day filed a complaint for separate maintenance. The complaint claimed that the defendant, without provocation, was guilty of physical cruelty and that it became necessary for her to live separate and apart, all without her fault. The defendant denied, by answer, certain of the allegations contained in the complaint and counterclaimed for divorce. The counterclaim was founded upon extreme and repeated mental cruelty. Thereafter, on August 20, 1968, by stipulation of the parties, the proceedings were suspended and an order of reconciliation was entered. The parties then resumed living together.

Several continuances were granted upon motion of both parties and, on April 7, 1969, the plaintiff was allowed to withdraw her complaint for separate maintenance. On the same day, the defendant was allowed to amend his counterclaim by adding a second count for divorce based upon desertion. This was filed on April 10, 1969. No order revoking the order of reconciliation is found in the record; nevertheless, the amended counterclaim came on for hearing before the court on April 28, 1969. At the time of the hearing the plaintiff and defendant were both residing in the marital home.

At the close of the evidence the trial court found that the defendant (counterplaintiff) had not met the burden of proof necessary to sustain his case and denied the counterclaim.

On appeal, the defendant has raised various issues, many of which are collateral and, we believe, answerable under a singular question: Was the trial court’s finding against the manifest weight of the evidence as to each of the alleged grounds claimed for divorce?

The fact is undisputed that on April 10, 1969, the date the defendant filed his amended counterclaim for divorce charging the plaintiff with desertion, the parties were both residing in the marital home. It is defendant’s position that, regardless of this fact, he may maintain an action on desertion and, as authority, quotes from our decision in Roback v. Roback, 59 Ill App2d 222, 226, 207 NE2d 130 (1965):

“In the case at bar, the fact that the parties were living under one roof did not indicate that the complaint was filed in bad faith. However, in actions for separate maintenance and in actions for divorce based upon desertion, where the element of living apart is essential to establish probable cause or grounds on which to base the action, the fact that the parties live together under one roof may, under certain circumstances, indicate an absence of good faith in the filing of such action. Here, the plaintiff filed complaint in the alternative, for separate maintenance or divorce, and upon the filing of a motion to dismiss, voluntarily dismissed the separate maintenance action. ...”

The defendant has, however, inadvertently overlooked the sentence which follows the above quote:

“. . . Had separate maintenance been the sole relief sought, defendant’s argument might have merit, but it is no answer to the complaint for divorce based upon cruelty. . . .”

The nature of a complaint for divorce based upon desertion requires that the parties be living separate and apart. In Lindeman v. Lindeman, 337 Ill App 261, 85 NE2d 847 the Court stated:

“We are confronted with the question whether the statutory period of divorce can begin to run while the husband and wife are living in the same home. The answer is no.”

This same proposition applies to a complaint for separate maintenance. Baumgartner v. Baumgartner, 16 Ill App2d 286, 293, 148 NE2d 327 (1958).

The evidence is uncontradicted that during the last 15 years of their marriage, the plaintiff and defendant were not conjubilant. Though they were together under one roof, they slept in separate rooms. The defendant, a farmer, tended to his farming while the plaintiff, a registered nurse, engaged in her profession. The record discloses that the plaintiff worked nights, at times employed in two different positions, but that she performed all of her normal household duties and, according to the defendant, “She kept a wonderful house”; however, she displayed no physical affection toward the defendant. When queried as to whether he ever attempted to display any affection toward his wife since 1959, he responded that he had once while she was at the sink but she told him to “get away, I haven’t got time.”

There seemed to be an attitude on the part of the plaintiff, according to the defendant, that he was to run the farm and she would run the house. The testimony of the defendant disclosed that while working on the farm or with the cattle he was content; however, eight out of ten times when he would start to enter the house, he wondered if he was going to “get heck” from the plaintiff. He “supposed” that if he did not work hard during the day, her course of conduct would have affected his sleep at night but he never complained of any lost sleep. When asked if her conduct rendered his life unendurable, he responded, “It seemed that way to me. I could live on that way, yes, but she told me she wasn’t happy . . . (U)nder present circumstances it is. But, as I say, you can’t explain it here in words.” The plaintiff and defendant were the only witnesses to testify.

In 1967 the Illinois Legislature adopted mental cruelty as a grounds for divorce in Illinois. Our research discloses that, to date, there have been two decisions rendered by our reviewing courts which disclose the type of proof necessary to establish such grounds. Stanard v. Stanard, 108 Ill App2d 240, 247 NE2d 438 (1969); Hayes v. Hayes, 117 Ill App2d 211, 254 NE2d 288 (1969).

What constitutes mental cruelty depends upon the total circumstances set forth in a given case. The conduct of a defendant may vary from case to case but the ultimate test is the effect such conduct has upon the plaintiff and the marriage. Nelson on Divorce, in commenting upon the subject, has stated that decisions, in various jurisdictions, defining mental cruelty have employed a variety of phraseology making it impossible to set forth all such conditions in an acceptable form. However, it is generally recognized that the elements consist of a course of abusive and humiliating treatment, calculated or obviously of a nature to torture, discommode, or render miserable the life of the opposite spouse; and which actually affects the physical or mental health of such spouse.

As stated in Stanard (supra, page 249), the conduct of the defendant must be such as to cause embarrassment, humiliation and anguish so as to render life miserable and unendurable or to cause the plaintiff’s life, person or health to be endangered.

The defendant herein has failed to present sufficient evidence to warrant the trial court to grant him a divorce based upon extreme and repeated mental cruelty or desertion and, therefore, we are of the opinion that the trial court’s findings were not against the manifest weight of the evidence and its judgment shall be affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.

       Footnote: Nelson on Divorce, Callaghan Co., Chicago, § 6.06 (1966).