text:
    The City of Danville, a Municipal Corporation, Plaintiff-Appellee, v. Frank C. Frazier, Defendant-Appellant.
    Gen. No. 11,052.
    Fourth District.
    May 22, 1969.

      John A. Lambright, of Danville, for appellant.
    William Young, of Danville, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

This action was brought to recover a fine for the violation of an ordinance of the City of Danville. The complaint charged the defendant with driving a motor vehicle while under the influence of intoxicating liquor contrary to the terms and provisions of the ordinance. A jury trial of the issue resulted in a verdict of guilty and a fine, assessed by the jury, in the sum of $100.

By this appeal the defendant asserts that the judgment was predicated upon an improperly verified complaint, that the complaint is insufficient to sustain the judgment, and further that the trial court committed prejudicial and reversible error when he gave a certain oral instruction to the jury without discussing the instruction at the instruction conference.

The defendant, initially, was issued a traffic ticket for driving under the influence of intoxicating liquor. That traffic ticket commanded his appearance in court on March 6, 1968. He appeared in court on that date and made a motion for a verified complaint. The motion was allowed and the verified complaint was filed on March 25, 1968, and thereafter a motion to quash was filed. The court reserved its ruling on the motion to quash, the cause proceeded to trial and judgment was. entered upon the verdict. The motion to quash was denied.

The complaint filed in response to the motion was verified before a notary public by Officer Edwin McGee of the Danville Police Department. By this verified complaint the officer stated that on the 22nd of February, 1968, at and within the corporate limits of the City of Danville, Vermilion County, a certain specified section of the ordinances of the City was violated, and that the affiant had reasonable grounds to believe the defendant was guilty thereof in that he did then and there operate a motor vehicle while under the influence of intoxicating liquor.

In People v. Harding, 34 Ill2d 475, 216 NE2d 147 (1966), the Illinois Supreme Court discusses the necessity for verification of a complaint, with particular reference to the Uniform Traffic Ticket, and there distinguishes between a sworn complaint as a prerequisite for the issuance of an arrest warrant and as a document on which an action may be commenced. The defendant contends that the verification in this case is insufficient because of the use of the terminology that the officer verifying the complaint “. . . [had] reasonable grounds to believe . . . .” and that by reason of this defective verification and the application of Harding, this judgment cannot stand.

By this complaint the complaining witness has stated that the defendant, on a day certain, violated a specified ordinance by a specific act. In Harding, a verified complaint was not filed. Here, however, the defendant, by his motion, obtained a verified complaint fully informing him of the specifics of the charge. The complaint was verified before a notary public and such verification is sufficient. Village of Willowbrook v. Miller, 72 Ill App2d 30, 217 NE2d 809 (2nd Dist 1966).

In the opening statement and in the argument to the jury, the attorney for the defendant, without objection of the attorney for the plaintiff or without interruption by the court, stated to the jury that in addition to the penalty provided by the city ordinance for the offense, the State of Illinois, acting by and through the Secretary of State, would, in the event of conviction, revoke the driver’s license of the defendant for a period of one year. After the arguments and before reading the written instructions, the court gave an instruction which had not been discussed in the conference on instructions. That instruction, in substance, told the jury that they should not consider the fact that there would be a revocation of the defendant’s driver’s license, if convicted. The giving of this oral instruction without discussing the same is asserted to be prejudicial error.

The City, in defense of the oral instruction, classifies it as an admonition to the jury rather than as an instruction. The record rather clearly indicates that the court considered that it was an instruction. A docket entry indicates: “Jury instructed including one instruction on Court’s own motion not previously submitted to counsel,

Supreme Court Rule 239(b) (Ill Rev Stats 1967, c 110A, § 239(b)) and section 67(1) of the Civil Practice Act (Ill Rev Stats 1967, c 110, §67(1)) both contemplate an instruction conference, objections to instructions at that conference, and the giving of written instructions to the jury, unless the parties agree otherwise. The procedure here was a departure from these requirements. We do not condone this departure. See Hammer v. Slive, 27 Ill App2d 196, 169 NE2d 400 (2nd Dist 1960). Does such a departure absolutely command a reversal? We think not. It is uncontroverted here that counsel for the defendant made reference to a consequence of a finding of guilty unrelated to the merits of the instant proceeding. Counsel, in argument to the jury, is not permitted to expand into this area. The trial judge is not relegated to being a mere referee ruling upon specific items presented or that develop during the trial. It is well settled that it is always the duty of the trial court to control the proceedings to the extent necessary to insure each litigant a fair trial. “If the argument of counsel is seriously prejudicial, a court should, of its own motion, stop the argument and direct the jury not to consider it. [Citing cases.]” Belfield v. Coop, 8 Ill2d 293, 313, 134 NE2d 249, 259, 58 ALR2d 1008, 1023 (1956).

Thus, in the context of this case, and within the rules requiring the trial judge to control the proceedings, the judge would clearly have been warranted in stopping the argument to the jury so far as it related to the ultimate consequence of a finding of guilty — a consequence clearly extraneous to the merits of this proceeding. The fact that he did so in the form of an oral instruction at the time of giving instructions rather than an admonition at the time of the offending conduct, is a matter of semantics rather than substance. In People v. Moore, 42 Ill2d 73, 246 NE2d 299, the Supreme Court held that a brief statement by the trial court, there not equated with an oral instruction, was not prejudicial.

We find no reversible error in the proceedings of the Magistrate Division of the Circuit Court of Vermilion County, and its judgment is affirmed.

Affirmed.

TRAPP, P. J. and SMITH, J., concur.


source: Caselaw Access Project

author: CRAVEN, J.,

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vernon P. Forman, Defendant-Appellant.
    Gen. No. 11,060.
    Fourth District.
    May 22, 1969.
    Donald B. Mackay, Public Defender, of Bloomington, for appellant.
    Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Defendant appeals from a conviction upon a plea of guilty to the offense of theft. Probation was denied and the defendant was sentenced for a term of not less than two nor more than five years in the Illinois State Penitentiary. The defendant’s theory is stated to be that the sentence is void and that consequently the judgment of conviction must be set aside. He bases this assertion upon an alleged abuse of discretion by the trial court in permitting and considering hearsay information contained in the probation officer’s report.

The case of People v. Donovan, 376 Ill 602, 35 NE2d 54 (1941), is cited to us for the proposition that judicial action upon a petition for probation “is not an arbitrary-discretion to be exercised at the mere will or whim of the court, but is a sound legal discretion dependent for its exercise upon the facts shown.” (At 376 Ill 606, 35 NE2d at 56.)

After the plea of guilty, a petition for probation was filed and a hearing was scheduled. At the time of this hearing it was agreed by counsel for the prosecution and the defense that the hearing would be both a hearing on the petition for probation and a hearing in aggravation and mitigation. Although these are in some respects different areas of inquiry, both are designed to produce relevant facts for the trial judge to assist him in arriving at an appropriate determination on the issue of probation — and if the defendant is to be sentenced, upon the sentence.

This court is mindful of the fact, from the reports of the Court Administrator, that in some eighty-five percent or more of all felony cases that are terminated in conviction in this state, the conviction is based upon a plea of guilty. In such cases, absent a hearing in mitigation and aggravation or a petition for probation and hearing thereon, or a presentence investigation, the sentencing judge would have little information as to the substantive offense to aid him in arriving at a decision as to appropriate action. In People v. Spann, 20 Ill2d 338, 169 NE2d 781 (1960), Annot, 96 ALR2d 764, 768, the Illinois Supreme Court departed from prior decisions as to limitations upon the trial court in searching out information that might be helpful in the resolution of his sentencing problem. There (at 20 Ill2d 343 (169 NE2d 783-784, 96 ALR2d 767)) the court quoted with approval from the opinion in the case of Williams v. New York, 337 US 241, 247, 69 S Ct 1079, 1083, 93 L Ed 1337, 1342 (1949), as follows:

“ ‘Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence applicable to the trial.’ ”

This court, in People v. Harden, 78 Ill App2d 431, 222 NE2d 693 (4th Dist 1966), vacated a sentence when it appeared that the sentencing judge was lacking in adequate information upon which to base a sentence. The Supreme Court affirmed (38 Ill2d 559, 232 NE2d 725 (1968)). In People v. Spaulding, 75 Ill App2d 278, 220 NE2d 331 (4th Dist 1966), People v. Biggs, 89 Ill App2d 324, 231 NE2d 626 (4th Dist 1967), and People v. Daugherty, 106 Ill App2d 250, 245 NE2d 7 (4th Dist 1969), we discussed sentencing problems and procedures. We have consistently held that a sentencing judge should obtain the fullest information possible in order to arrive at a proper sentence. This is what the trial court did here.

There is no question but that the report of the probation officer (in fact, there were two probation officers’ reports with striking similarity) contained information hearsay in nature. From this record, it is equally apparent that the content of the report was known to the defendant and he was given adequate opportunity to refute anything in it of a derogatory nature.

In Daugherty we held that information on a “rap sheet,” even if hearsay, could be considered. We adhere to that view. However, see People v. Jackson, 95 Ill App 2d 193, 238 NE2d 196 (1st Dist 1968), where the trial judge gave consideration and weight to record of prior arrests and other encounters with the law which did not result in convictions. See also People v. Drewniak, 105 Ill App2d 37, 245 NE2d 102 (1st Dist 1969), wherein the court discusses the same issue in a somewhat different context.

In Gregg v. United States, 394 US 489, 89 S Ct 1134, 22 L Ed2d 442 (1969), the court held that presentence reports are not subject to formal limitations as to their content and they may rest on hearsay and contain information bearing no relation whatsoever to the crime with which the defendant is charged. Under the Federal Rules of Criminal Procedure even the contents of the document are not required to be made available to the defendant as a matter of right.

In the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), a distinguished committee, after an in-depth study, discussed at length presentence investigative reports and the availability of those reports to counsel for the defendant. Essentially, it recommends that the report be made available to the defendant. We agree with our colleagues in the Second District (People v. Stroup, 96 Ill App2d 315, 239 NE2d 1 (2nd Dist 1968), that the better practice is to make a probation report or a presentence report available to the defendant so that he may refute any derogatory information contained in it. The report or recommendation should be in the record so that, upon appeal, it may be reviewed by the reviewing court on sentence issues. That has been done in this case. The action of the trial court here in seeking to the fullest extent possible relevant information about the defendant was proper. The judgment of the Circuit Court of McLean County is affirmed.

Affirmed. '

TRAPP, P. J. and SMITH, J., concur.


author: GOLDENHERSH, P. J.

text:
    Chicago & Eastern Illinois Railroad Company, a Corporation, Plaintiff-Appellant, v. C. B. Taylor and Edna Taylor, Defendants-Appellees.
    Gen. No. 68-51.
    Fifth District.
    January 20, 1969.
    Fowler & Novick, of Marion, for appellant.
    Benedict W. Eovaldi, of Benton, for appellees.
   GOLDENHERSH, P. J.

Plaintiff appeals from the judgment of the Circuit Court of Franklin County dismissing its cause of action and for costs, entered upon allowance of defendants’ “Motion Attacking the Complaint and Amendment to the Complaint.”

In its complaint, as amended, plaintiff alleges that on August 28, 1961, defendants, upon payment to them of $5,000 gave one I. A. Moore, Trustee, an option to purchase certain described premises; Moore was the agent of, and trustee for, plaintiff; Moore assigned the option to plaintiff; plaintiff gave defendants timely written notice of its intent to exercise the option; defendants, at plaintiff’s request furnished plaintiff an Abstract of Title which was extended to show the condition of the title on November 16, 1961; on March 30, 1961, the Department of Public Works and Buildings of the State of Illinois issued, and on. May 1, 1961, filed for record in the office of the Recorder of Deeds of Franklin County, an “Order Establishing a Freeway” (see c 121, § 8-101 et seq., Ill Rev Stats); on September 8, 1961, the Department of Public Works and Buildings filed an eminent domain proceeding to acquire, and pursuant thereto, did acquire a right of way on and across said premises; examination of the abstract furnished by defendants, and extended as aforesaid, disclosed that title to the property was subject to the above described order and eminent domain proceeding; on December 20, 1961, plaintiff’s general counsel addressed a letter to counsel for defendants wherein it is stated that the extension of the abstract showed the above described order and eminent domain proceeding, these constitute liens and incumbrances, and before “we (presumably the general counsel) can approve the title and conclude the transaction it will be necessary that such liens and incumbrances be cleared by the Taylors,” an appearance had been made for I. A. Moore in the eminent domain proceeding, and negotiations had been instituted with the Department of Public Works and Buildings seeking permission for a crossing over the freeway, that “if a satisfactory agreement is reached with the State shortly, we will be in a position to and will waive our requirements that the Taylors should clear their title”; that title was vested in the Department of Public Works and Buildings on April 2, 1963; on April 7, 1966, plaintiff addressed a letter to defendants reviewing the transaction and demanding refund of the option money; defendants’ refusal to repay and praying judgment in the amount of $5,000.

The option, attached as an exhibit to, and by reference incorporated in, the complaint, contains the following provision:

“In the event the said Grantee shall elect to exercise this option to purchase said real estate, said Grantee shall notify the Grantors in writing of the Grantee’s intention to purchase by depositing same in the United States Mail with prepaid postage, addressed to the Grantors or delivery of such written notice to the Grantors or any one of them at any time within the life of this option shall be sufficient notice under this option. The Grantors agree to furnish the Grantee an abstract of title for examination on demand, showing good marketable title in and to said real estate vested in fee simple in said Grantors, free and clear of all liens and encumbrances of whatsoever kind and nature, and to make any corrections in such title required by the Attorneys for the Grantee. Upon approval of said title by Grantee, after giving of notice of election to purchase, the Grantors agree to convey said real estate to the Grantee by good and sufficient Warranty Deed (Statutory Form) free from all liens and encumbrances of every kind, and at that time the Grantee agrees to pay the Grantors as consideration for said real estate the sum of Fifteen Thousand Dollars ($15,000.00), said amount including consideration in full liquidation of damages to buildings and property adjacent to land hereby conveyed and growing out of the occupancy and use thereof by the Grantee.”

The letters referred to in the complaint, and the “Order Establishing a Freeway” are also incorporated in . the complaint, as amended.

Plaintiff contends that the complaint, as amended, states a cause of action, the trial court erred, and the judgment should be reversed and the cause remanded for further proceedings.

Relying upon Stevenson v. Loehr, 57 Ill 509, and City of Chicago v. Robertson, 48 Ill App2d 241, 198 NE2d 192, defendant argues that pendency of a condemnation proceeding does not render a title unmerchantable. These cases are clearly distinguishable from the case here alleged.

In Stevenson the parties had entered into a contract for deed, the defendant was in possession, and the eminent domain proceeding was instituted between the time when the contract was executed, and the time for payment of a portion of the purchase money. In City of Chicago v. Robertson, the condemnation also intervened between the execution of the contract and completion of the payments.

In its motion defendant raises several grounds which do not appear on the face of plaintiff’s complaint, as amended. Plaintiff argues that the motion is not supported by affidavit as required by section 48 of the Civil Practice Act, and Supreme Court Rule 191, and we agree. Defendants allege plaintiff’s failure to pay an additional sum of money, knowledge on the part of plaintiff of the order of March 30, 1961, and plaintiff’s failure to “proceed with diligence” in the time provided in the option. We do not reach the question of whether, under the terms of the option, these matters are material, but point out that they purport to interpose factual defenses, unsupported by affidavit as required by the Civil Practice Act and the Supreme Court Rules.

Counsel have not cited, nor has this court found, an opinion of an Illinois court of review decisive of whether the pendency of a condemnation proceeding is, prior to vesting of title in the condemnor, an encumbrance within the contemplation of the option agreement. A number of cases from other jurisdictions are collected and discussed at 21 ALR2d 792. In the present posture of this case we do not reach this question.

Citing Dinn Oil Co. v. Hanover Ins. Co., 87 Ill App2d 206, 230 NE2d 702, and Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc., 72 Ill App2d 488, 218 NE2d 823, plaintiff argues that a cause of action should not be dismissed on the pleadings, unless it appears that no set of facts can be proved that will entitle the pleader to relief. The sufficiency of the complaint, as amended, must be determined within the scope of the allegations which it contains, and the documents incorporated therein by reference. In view of the terms of the option agreement, we cannot say that plaintiff cannot prove a set of facts which will entitle it to relief.

For the reasons herein set forth, the judgment is reversed and the cause is remanded to the Circuit Court of Franklin County with directions to vacate the order of dismissal, and for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    James E. Healy, Jr., Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,393.
    First District, Second Division.
    March 11, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Sydney R. Drebin, Assistant Corporation Counsel, and Thomas F. Strubbe, Special Assistant Corporation Counsel, of counsel), for appellant.
    Arthur S. Gomberg and Philip E. Howard, of Chicago (Samuel Nineberg, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The plaintiff, James E. Healy, Jr., brought this action against the City of Chicago to recover for damages sustained as a result of the alleged negligence of the defendant. The accident occurred in December, 1958, and trial was held in the latter part of 1965. After trial, a jury returned a verdict in favor of plaintiff, assessing damages at $20,000, and judgment was entered thereon. Defendant's post-trial motion was denied, and it appeals.

On appeal, the City contends that as a matter of law it was not negligent and that plaintiff was guilty of contributory negligence; that the trial court erred in refusing to admit into evidence a certain defendant’s exhibit; that the court erred in allowing into evidence a portion of a certain plaintiff’s exhibit and in making certain rulings attendant to that exhibit; that the jury was erroneously instructed; and finally that the damages were excessive. The evidence presented at trial is as follows.

The plaintiff, the only occurrence witness, testified that about 3:00 a. m. on December 10, 1958, he was injured as a result of a fall on the northeast comer of Belmont and Central Avenues in Chicago. He left his home before midnight to visit a friend who operated a restaurant near Belmont and Harlem Avenues. Plaintiff intended to give the owner of the restaurant some advice which he had requested concerning menus. After stopping for coffee, he took public transportation to the restaurant, but found that it was closed. After waiting a half-hour he was returning home by bus when he saw a cab and alighted from the bus at the intersection of Belmont and Central. It was a cold night, and there had been a six-inch snowfall the previous day. There were no other persons present, and the intersection was well-lighted. Plaintiff crossed to the northeast corner, stepped on the sidewalk and started walking toward the curb to hail the cab. At that point he tripped over a crack in the sidewalk with his right foot, and then slid on some snow and ice while trying to regain his balance. He did not notice that the sidewalk was cracked until after he fell, and he estimated that the elevation of the crack was about two inches. After the fall, he entered the cab and went home. The condition of his ankle worsened, and on the following day he went to the Cook County Hospital. Surgery was performed on his fractured ankle and he was confined to the hospital until January 17, 1959. His ankle was still painful at the time of trial. He was 36 years of age and unemployed at the time of the accident. On cross-examination, he testified that an intern took his personal history at the time of his admission to the hospital. When asked by counsel for the City if he had told any member of the staff that he had slipped on the snow and ice, plaintiff stated: “It might have been part of what I told them.”

Harold Shields testified that he was familiar with the intersection in question, and that plaintiff’s photographs correctly portrayed the condition of the sidewalk in question. He further testified that there was a crack in the sidewalk approximately two and one-half to three inches high.

Doctor Leo Quinn testified for the City that he was an intern at the Cook County Hospital in December, 1958. He further testified that part of his duties consisted of taking histories from patients admitted to the hospital with fractures. This information ordinarily would be obtained from the patient himself. At trial, he did not independently recall taking a history from the plaintiff, although he recognized him as a past patient. He was shown the hospital record and after reading it, had no independent recollection of what it contained. However, he recognized the handwriting on the history sheet as his own, and testified that he had obtained the information from the plaintiff and recorded it on the history sheet. Defendant offered the history sheet in evidence, and the court sustained plaintiff’s objection to its introduction. On cross-examination the doctor testified that he did not believe it possible that he could have received the information contained in the history from anyone other than the patient, but upon further cross-examination stated that it was possible that he received the information from someone other than the patient.

Officer Edward Anderson of the Chicago Police Department testified that he recognized the handwriting on a statement taken from plaintiff as his own, but stated that he had no independent recollection of the document. The statement was taken from the plaintiff at the Cook County Hospital. Officer Anderson testified that such statements were taken by the police whenever someone was injured on City property. He further testified that on the statement, the place of accident was set forth as North and Cicero Avenues in Chicago. The defense then rested.

Plaintiff called as a rebuttal witness Officer James Jack of the Chicago Police Department who had also taken a statement from the plaintiff. After counsel for plaintiff had asked Officer Jack a few preliminary questions, a conference was held by court and both counsel outside the presence of the jury. There the court ruled that the police officer could not be called by plaintiff as an adverse witness under section 60. In the presence of the jury, counsel for plaintiff withdrew the police officer as a witness “for a moment,” and called Mr. Donegan, counsel for the defendant as his next witness. Officer Jack was not recalled by plaintiff. Defense counsel was called as a witness for the purpose of authenticating the statement taken from plaintiff by Officer Jack. After the statement was authenticated by counsel for the City, and over the objection of the City, the court allowed a portion of that statement into evidence, that part which recited that plaintiff had stated to Officer Jack that the accident occurred at Belmont and Central. The City then requested that the balance of the statement given to Officer Jack be admitted into evidence, but the court sustained plaintiff’s objection. The City next requested leave to reopen its case in order to call Officer Jack as its witness. The court informed the City that it might call Officer Jack in surrebuttal, but would not allow the City to reopen its case in chief.

Defendant first contends that, assuming plaintiff’s evidence to be true, the defect in the sidewalk was so minor that the City was not liable as a matter of law. While we agree with defendant that a municipality is not a guarantor of a pedestrian’s safety, and that it need exercise only ordinary care in keeping its sidewalks in a reasonably safe condition, nevertheless plaintiff has presented enough evidence in the instant case to make the issue of negligence on the part of the City one of fact for the jury. In Arvidson v. City of Elmhurst, 11 Ill2d 601, 145 NE2d 105 (1957), the plaintiff fell because of a two-inch inequality between two adjoining slabs of sidewalk. The Supreme Court concluded at page 609: “. . . it cannot be found that all reasonable minds would agree that the two-inch variation and the height of the adjoining slabs of the sidewalk near the curb was so slight a defect that no danger to pedestrians could reasonably be foreseen.” Likewise, in the case at bar we are not prepared to say that a variation of between two and three inches is so minor as to absolve the City as a matter of law.

Nor can we agree with defendant that plaintiff was guilty of contributory negligence as a matter of law. In Swenson v. City of Rockford, 9 Ill2d 122, 136 NE2d 777 (1956), on a clear sunny day, the plaintiff fell on a defective sidewalk about which he had previous knowledge. The court held the plaintiff’s conduct was not contributory negligence per se, and there could be a recovery for damages. Here too, the issue as to plaintiff’s exercise of care was a question of fact for the jury.

However, the City argues that the trial court committed reversible error in refusing to allow into evidence a medical history sheet taken from plaintiff in which plaintiff stated that he fell as a result of slipping on the ice.

When a witness testified that he made a written report or memorandum of the occurrence at or near the time of its happening, but upon examination of the writing he has no independent recollection of the matter contained thereon except that he knows that it is correct, then such report is admissible in evidence. Diamond Glue Co. v. Wietzychowski, 227 Ill 338, 81 NE 392 (1907).

In People v. Harrison, 384 Ill 201, 51 NE2d 172 (1943), the court stated at page 206:

“The rule is that where there has been a writing made by a witness, or made at his direction at the time of the fact, for the purpose of preserving the memory of it, if at the time of testifying he can recall nothing further than that he had accurately reduced the whole transaction to writing, the latter may be admitted in evidence.”

In Stanton v. Pennsylvania R. Co., 32 Ill App2d 406, 178 NE2d 121 (1961), this court held that notes made by a nurse were admissible under the doctrine of past recollection recorded, where the nurse could not remember the contents of the notes but testified that they were accurate when made. In Waring v. F. W. Woolworth Co., 32 Ill App2d 7, 176 NE2d 700 (1961), the court held that a conversation between the plaintiff and an investigator which was reduced to writing should have been allowed into evidence, where the investigator, although unable to recall the conversation, could recall that he had written it down. In Wolf v. City of Chicago, 78 Ill App2d 337, 223 NE2d 231 (1966), this court ruled that a medical history report was erroneously excluded from introduction into evidence. In that case the emergency room nurse who prepared the report at the time of plaintiff’s admission for treatment, testified on cross-examination that at times, a plaintiff’s history was taken from someone other than the patient and that such practice was not uncommon, but that she had no recollection of having obtained the information in question from plaintiff’s husband.

We find that the trial court erred in not allowing the medical history sheet into evidence. The doctor testified that the material was reduced to writing at about the time that the statement was made; that the information was taken from the plaintiff and written down by the witness; and that it was in the witness’s own handwriting. Accordingly, the writing fulfilled the requirements set forth by the Supreme Court in the Diamond Glue and Harrison cases, supra, and should have been allowed in evidence. The statement elicited from the doctor on cross-examination that it was possible that he received the information from someone other than plaintiff would only affect the weight to be given the doctor’s testimony, but not its admissibility. Moreover the testimony of the plaintiff that he had given a history to an intern bolstered the authenticity of the medical history. Plaintiff also testified in response to a question inquiring as to whether he ever told a hospital staff member that he slipped on the ice that “It might have been part of what I told them.” In view of his earlier trial testimony that he tripped over the crack and then slipped on the ice, this answer on cross-examination made the introduction of the medical history sheet even more crucial to the defendant.

Cases cited by plaintiff in support of its contention that the medical history sheet was inadmissible are inapplicable or clearly distinguishable from the case at bar. In Stewart v. DuPlessis, 42 Ill App2d 192, 191 NE2d 622 (1963), the court found that defendant failed to offer any evidence as to who prepared the record involved, and it was therefore held inadmissible. In Flesberg v. Prince Warehouse Co., 37 Ill App2d 22, 184 NE2d 813 (1962), the court held that a hospital record was inadmissible as a business record, and further the maker of the record did not testify. In Behles v. Chicago Transit Authority, 346 Ill App 220, 104 NE2d 635 (1952), the witness testified that the history sought to be introduced was not obtained from the plaintiff who was unconscious at the time of admission to the hospital. In Adkins v. Blue Bird Coach Lines, Inc., 27 Ill App2d 34, 169 NE2d 368 (1960), the records were held inadmissible because the witness attempted to testify as to writings made by other parties.

Defendant was entitled to have the medical history sheet including plaintiff’s admission submitted to the jury. The trial court committed prejudicial error in excluding the exhibit.

In the retrial of this case, it is unlikely that the Assistant Corporation Counsel representing the City would be called as a witness nor would it be necessary for defendant to seek to reopen its case in chief after resting. Therefore we do not consider it necessary to consider those rulings. However we must comment on one of the other contentions made by the defendant.

During plaintiff’s rebuttal, defense counsel was called as a witness to authenticate a statement taken from plaintiff by Officer Jack. In that statement plaintiff told the officer that the accident occurred at Belmont and Central, and that portion of the statement was introduced into evidence. However the trial judge did not allow other portions of the statement, in which plaintiff admitted slipping on ice, into evidence. We agree with defendant that the court’s ruling on this issue was erroneous.

Generally when part of a conversation or statement is admitted in evidence, the entire conversation or statement relevant to the issue should be allowed. In People v. Provo, 409 Ill 63, 97 NE2d 802 (1951), the Illinois Supreme Court concluded, at page 66, that:

“The rule is that the whole of an admission is to be taken together and that when a part of a conversation is put in evidence by one party, the other is entitled to put in the whole so far as it is relevant.”

Accord, People v. Kalpak, 10 Ill2d 411, 140 NE2d 726 (1957); Barnes v. Northern Trust Co., 169 Ill 112, 48 NE 31 (1897); Scott v. People, 141 Ill 95, 30 NE 329 (1892); People v. Garner, 91 Ill App2d 7, 234 NE2d 39 (1968).

Since a portion of plaintiff’s prior statement was admitted for the purpose of rehabilitating plaintiff’s credibility, defendant had the right to introduce the balance of that statement in order to show that other parts of the statement were inconsistent with plaintiff’s testimony at trial. '

For the foregoing reasons, the judgment of the Circuit Court is reversed, and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

LYONS, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Griffin Carter, Defendant-Appellant.
    Gen. No. 50,905.
    First District, Third Division.
    March 13,1969.
    Rehearing denied and supplemental opinion May 15,1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Donald S. Carnow, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant appeals from a conviction for the unlawful possession of a narcotic drug. He was charged in separate indictments with the illegal sale of a narcotic drug and with the illegal possession of a narcotic drug. The two indictments were consolidated before trial over the defendant’s objection, and the jury found the defendant guilty of illegal possession but could not agree upon the illegal sale, whereupon the trial court declared a mistrial relative to the illegal sale charge. The indictment charging illegal sale was subsequently nolle prossed by the State. The defendant was sentenced to the Illinois State Penitentiary for a term of not less than nine nor more than ten years.

The defendant contends: 1) that evidence obtained through the use of a police informer was improperly admitted; 2) that the informer’s identity should have been disclosed at the hearings on motions to suppress evidence; 3) that the consolidation of the two indictments on the day of trial deprived him of adequate time to properly prepare his defense; 4) that the State’s demonstration before the jury was improper and prejudicial; and 5) that the joinder of the two offenses of illegal sale and of illegal possession was improper and prejudicial.

Two separate motions to suppress were made under each indictment. On December 7, 1964, a motion to suppress was heard on indictment No. 64-2540 wherein the defendant was charged with unlawful possession of a narcotic drug. Officer Ronald Kelly testified to the circumstances surrounding the arrest and admitted that a “special police employee” had been used to make a controlled purchase of narcotics. Defense counsel attempted to elicit the true name of the informer, but the State’s objection to such a disclosure was sustained. On March 8, 1965, another hearing on a motion to suppress was heard relative to thé indictment No. 64-2539 wherein the defendant was charged with the unlawful sale of narcotics to one “Joseph Leak.” At this hearing the only witness was Officer James Maher, one of the three arresting officers, who also testified to the circumstances leading to the arrest of Griffin Carter. Again the court would not permit the informer’s identity to be disclosed. Both motions to suppress were denied, and, upon consolidation, the case went to trial on March 8, 1965.

At trial, the three arresting police officers testified to basically the same narrative. On July 2, 1964, Joseph Leak came to the police station and informed them that he could make a controlled purchase of narcotics from a man known as Griff who resided at 1730 West Hastings in Chicago. The informer was searched, given $20 in recorded and dusted currency, and was then taken to the area of Ashland Avenue and Hastings Street where the police observed Leak meet the defendant and further observed the informant hand something to the defendant. The defendant then walked east on Hastings to a tavern. After about five minutes he left the tavern, walked back to where Leak was waiting and handed something to Leak. Joseph Leak then walked a distance of about one-half of a block to the place where the police were making their surveillance and handed three packets of white powder to the police. The packets were field tested and were found to contain heroin. The police drove to 1730 West Hastings, and, as they arrived, the defendant came out of the building. He was arrested and the officers discovered a tinfoil package in his hand which was tested and found to contain heroin. The defendant’s hands were checked with the fluorescent light and were found to be stained from the dustings of the marked currency. A dollar bill was also found on the person of Griffin Carter which was one of the recorded and dusted bills given Leak by the police. The defendant told the police that he had purchased narcotics from one Willie Mae Foster, but a search for this woman proved unsuccessful.

It was disclosed at trial that the true identity of the informer was one named Joseph Leak. Leak did not testify at trial.

The State presented the jury with a demonstration of how fluorescent powdered money leaves the powder on the hands of the transferee and of how the powder is detected by means of an iridescent light.

Ella Mae Pope, the defendant’s sister, testified on behalf of the defense that she was on the front porch at 1730 West Hastings when the police arrested her brother and that she did not see the police take any object from her brother. According to her, the defendant could not have made the alleged sale to Leak on the street at the time the police testified that such sale was made.

The defendant testified on his own behalf and denied any sale or possession of narcotics on the date in question. He denied being a narcotics addict at the time of his arrest although he admitted to addiction in the past. He stated that he knew Joseph Leak “pretty well” since they had attended school together. The accused also stated that when he was brought to the station he was told that Joe Leak was the man who had informed on him.

The defendant initially argues that the prosecution’s evidence obtained through the use of this informer should have been ruled inadmissible at the pretrial hearings and at trial. The defendant bases this argument on the language of Ill Rev Stats 1963, c 38, § 608 (a) which reads:

“No State, county or municipal officer, whose duty it is to investigate the commission of any crime or to prosecute persons accused of crime, shall employ any detective or investigator on a compensation basis other than that of time, and in no event shall compensation to such persons be contingent on the success of the investigation or prosecution. Evidence obtained in violation of this act shall be inadmissible in any court in this State for any purpose and any person employed in violation of this act shall be incompetent to testify in any such court as to any information or evidence acquired by him in such employment.”

The defendant reasons that the informer was compensated as a “special police employee” and therefore the admission of any and all evidence obtained by the use of this informer was violative of section 608(a). It should be emphasized that there is no testimony in the record that Joseph Leak was in fact paid for his services, even though there was testimony that the usual practice was to compensate such informers in narcotics cases. In any event, a similar argument was advanced in People v. Jones, 75 Ill App2d 332, 221 NE2d 29, and the argument was rejected as the court stated at page 340: “We see no merit in this contention, for an informer cannot be classed as a ‘detective or investigator’ within the contemplation of this statute.”

In addition to relying upon the Hlinois statute, the defendant asserts that the use of the informer on a contingent fee basis is fundamentally unfair and violative of the due process clause of the Fourteenth Amendment since it thereby encourages an informer to produce a “frame-up” merely to earn his fee. Again it must be mentioned that there is no evidence that an actual fee, contingent or otherwise, was paid to Leak. Furthermore, the cases relied upon by the defendant in support of this constitutional argument are distinguishable from the instant case. We find no merit to this position.

The defendant further argues that it was error for the court to refuse to disclose the identity of the informer at the pretrial hearings because the informer participated in the crime, and was present when the crime occurred and when the arrest was made. He relies on People v. Wolfe, 73 Ill App2d 274, 219 NE2d 634, wherein the court, after discussing Roviaro v. United States, 353 US 53; People v. Mack, 12 Ill2d 151, 145 NE2d 609; People v. Durr, 28 Ill2d 308, 192 NE2d 379; and People v. Beattie, 31 Ill2d 257, 201 NE2d 396, concluded at page 280:

“We are compelled to hold that an informer who participates in a crime, as is the situation in the case at bar, must be disclosed at a pretrial hearing on the motion to suppress, if other evidence does not establish probable cause, and failure to allow such disclosure is error.” (Emphasis supplied.)

In People v. Shaw, 89 Ill App2d 285, 233 NE2d 73, the identity of an informer who allegedly had made a controlled purchase of narcotics was not disclosed at pretrial hearing on a motion to suppress. At the hearing, a police officer testified to having seen the transaction take place before having made his arrest. It was also brought out that the defendant knew the informer’s entity. Each of these elements was present in the case at bar. The court in Shaw stated that the testimony of the police officer who made the arrest after witnessing the controlled purchase and after making a field test, was sufficient to furnish an adequate basis for a reasonable belief that an offense had been committed. We are of the opinion that Officer Kelly’s and Officer Maher’s similar testimony in this case also independently established probable cause thereby making it unnecessary to disclose the identity of the informer. At page 292 the court distinguished People v. Wolfe, supra:

“Contrapositively, however, such error does not exist where, as here, defendant knew the informer’s entity and probable cause was established independently. Further, the informer’s reliability need not be demonstrated if the informer’s information is independently verified by the arresting officers. (Citing cases.) ”

It is our opinion that the Shaw decision controls the case before us, and we therefore find no error in the court’s refusal to disclose the informer’s identity at the hearings on motions to suppress.

The defendant takes the position that he was denied a fair trial and adequate representation by his appointed counsel since the court, over his objection, consolidated the two indictments for trial approximately two and one-half hours before the trial commenced and after the State had earlier elected to proceed only on the indictment charging illegal sale of narcotics. As a result, the defendant argues, his counsel was prevented from adequately preparing his defense as to the possession charge. Under the circumstances of this case, we conclude that the defendant was not prejudiced by the late consolidation. The evidence presented by the prosecution at trial was substantially the same as the testimony offered by the police at the pretrial hearings for each indictment, and defense counsel was present at those proceedings. The setting of both offenses was the same; the date and the time of the day for both offenses was the same; and the relevant witnesses for the State were the same. Furthermore, upon a review of the record, we cannot detect any instance of surprise or difficulty incurred by defense counsel at trial due to this consolidation.

Another argument advanced by the defendant is that the demonstration before the jury involving the use of the “black-light” test should not have been permitted since it did not appear that the courtroom conditions were substantially similar to the conditions at the time of the defendant’s arrest. This court has difficulty understanding this contention in view of the fact that the test was only material to the issue of the alleged sale for which the defendant was not convicted. However, the defendant seemingly argues that the test could have had an incalculable prejudicial effect on the minds of the jurors which prompted them to enter a guilty verdict on the possession indictment. It is well-established that the trial judge has a wide degree of discretion in ruling upon the permissibility of courtroom demonstrations. (People v. Velez, 72 Ill App2d 324, 219 NE2d 675.) We do not think that the purported dissimilarities in conditions were sufficient to find that the trial judge here abused his discretion.

The final contention advanced by the defendant is that the joinder of the illegal sale indictment with the illegal possession indictment was improper because the jury’s verdict indicates that they either believed that the defendant possessed narcotics when he made the alleged sale to the informer, or that they believed that the defendant possessed narcotics when he was arrested. The defendant submits that the jury could not have consistently found the defendant not guilty of the sale charge while still believing that he possessed narcotics at the time of the alleged sale. Thus, the defendant reasons, the jury must have predicated its guilty verdict of illegal possession upon the narcotics found at the time of the arrest. Since some time had elapsed between the alleged sale and the arrest and since the defendant went into his house during this interim period, the defendant asserts that what transpired at the time of the arrest was a separate and distinct transaction from what allegedly took place between the defendant and the informer.

Both parties rely on the Committee Comments under section 3-3 of the Criminal Code (Ill Rev Stats 1965, c 38, par 3-3) relative to the question whether these two offenses should have been joined in one prosecution. Such reliance is misplaced because section 3-3 (b) deals with compulsory joinder under certain circumstances in which the several offenses “are based on the same act.” The issue before us is whether the court abused its discretion in permitting the consolidation of the two indictments. Section 114-7 of the Criminal Code (Ill Rev Stats 1965, c 38, par 114-7) provides:

“The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. The procedure shall be the same as if the prosecution were under a single charge.”

Section 111-4 (a) of the Criminal Code (111 Rev Stats 1965, c 38, par 111-4(a)) reads in pertinent part:

“Two or more offenses may be charged in the same indictment, ... if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.” (Emphasis supplied.)

Even if we assume that the jury predicated its finding of illegal possession upon the narcotics seized at the arrest, we find that it is unnecessary to decide whether the two offenses comprised part of the “same comprehensive transaction” within the intendment of section 111-4 (a) because the joinder, even if improper, was not prejudicial to this defendant. The conviction being appealed from is a conviction for the unlawful possession of a narcotic drug. If the defendant had been tried solely under the possession indictment, the evidence relative to the alleged sale would have been admissible and brought to the jury’s attention. (People v. Wilson, 105 Ill App2d 216, 245 NE2d 57. See also: Smith v. United States, 357 F2d 486.) Relevant evidence of another crime, which aids identification or which tends to prove design, motive or knowledge is admissible and such evidence is excepted from the exclusionary rule which forbids the introduction of evidence of a crime which is independent of and disconnected from the one with which the defendant was charged. People v. Tranowski, 20 Ill2d 11, 169 NE2d 347.

For the foregoing reasons, the defendant’s conviction for the unlawful possession of a narcotic drug is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.

Supplemental Opinion on Petition for Rehearing.

The defendant has filed a petition for rehearing in the instant case wherein he attacks our holding that, under the facts at bar, the disclosure of the informer’s identity was properly refused at the pretrial hearings on motions to suppress evidence. In so holding, we stressed the fact that at each hearing there was sufficient evidence independent of any testimony by the informer to establish probable cause for the arrest and search incident thereto. We cited People v. Shaw, 89 Ill App2d 285, 233 NE2d 73, as factually similar on this issue and went on to say:

“It is our opinion that the Shaw decision controls the case before us, and we therefore find no error in the court’s refusal to disclose the informer’s identity at the hearings on motions to suppress.”

Subsequent to the filing of the foregoing opinion, the United States Supreme Court in Shaw v. Illinois, 37 USLW 3335 (March 10, 1969) vacated the judgment in People v. Shaw, supra, and remanded the case to the Appellate Court, First District “for further consideration in light of Smith v. Illinois, 390 US 129.”

The defendant urges that the vacation and remandment of the Shaw case requires us to reconsider our decision in the instant case. In taking such a position, the defendant ignores some salient distinctions between the Appellate Court’s Shaw decision and our decision in this case when both cases are viewed in their entireties. The Shaw court was confronted with several issues one of which was the identical question presented in this case, namely, whether the informant’s identity need be disclosed at a pretrial hearing on motion to suppress. However another issue in Shaw, which is not present in the case at bar, was whether the defendant was entitled at trial to elicit from a prosecution witness on cross-examination the present address of the informant. Under the particular facts in Shaw, the Appellate Court held that the trial court did not abuse its discretion at trial in refusing the disclosure of the informant’s present address.

A reading of Smith v. Illinois, supra, unmistakably reveals that the United States Supreme Court, in vacating and remanding Shaw, was directing its attention solely to the issue of trial disclosures since the issue presented to the court was whether the defense, at trial and on cross-examination of the informer in a narcotics case, was entitled to elicit the true name and present address of that informer. Again it must be emphasized that such a question was not before us in the case at bar, and therefore the defendant’s reliance in this case upon the Supreme Court’s order relative to Shaw is misplaced. The disclosure of an informer’s identity at a preliminary hearing to determine the existence of probable cause for arrest or search is governed by different considerations than those that determine the necessity of disclosure when the informer is a material witness on the issue of the guilt or innocence of the defendant at trial. (People v. Williams, 38 Ill2d 150, 230 NE2d 214.) In McCray v. Illinois, 386 US 300 (affg 33 Ill2d 66, 210 NE2d 161) the Supreme Court said at page 312-313:

“In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 US 400. We find no support for the petitioner’s position in either of those constitutional provisions.”

Likewise, in the instant case, the defendant is urging us to require disclosure of an informant’s identity at a pretrial hearing on motion to suppress to determine probable cause where the officers’ testimony standing alone, if given credence by the trial judge, establishes probable cause for the arrest and search. It must be noted that the police made the arrest and incident search after they personally observed the controlled purchase and after they had conducted a field test which indicated that the content of the packets sold to the informant was heroin. Such a disclosure requirement within the context of such facts would extend well beyond any constitutional mandate and would violate the principles announced in People v. Wolfe, 73 Ill App2d 274, 219 NE2d 634, and in the cases cited therein.

We therefore find no reason to reconsider our original opinion in light of the subsequent developments heretofore mentioned. The defendant’s petition for rehearing is denied.

Petition for Rehearing Denied.


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

text:
    Rocco DiLeo, et al., Plaintiffs-Appellants, v. United States Fidelity and Guaranty Company, a Corporation, et al., Defendants-Appellees.
    Gen. No. 51,877.
    First District.
    March 21, 1969.
    Rehearing denied May 20,1969.

      George C. Rabens, of Chicago, for appellants.
    Clausen, Hirsh, Miller & Gorman, of Chicago, for appellees.
   MORAN, J.

Plaintiffs, Rocco and Angelo DiLeo, appeal from a judgment awarding them damages in the gross amount of $4,987.87 pursuant to an action in law brought by them to recover for business interruption loss under policies of insurance issued by the defendants, Fireman’s Fund Insurance Company, National-Ben Franklin Insurance Company of Pittsburgh, and National Fire Insurance Company of Hartford.

Plaintiffs seek remandment to the trial court with direction to enter judgment in their favor to the increased gross amount of $13,370.08 with prejudgment interest thereon to the date of entry of judgment, at the rate of 5% per annum from and after October 15, 1958, in equal amounts as to each of these defendants.

Defendants on cross-appeal contend plaintiffs’ recovery, measured by the “time to restore” clause in the applicable insurance endorsements, .was limited by the “actual loss sustained” clause also contained in the endorsements which, when applied, produces an amount of recovery substantially less than that awarded by the trial court.

On January 9,1957, the named defendants issued their respective policies of fire insurance insuring the plaintiffs during the period from January 9, 1957, to January 9, 1960, against direct loss by fire due to business interruption, as defined in the policies, suffered by plaintiffs in their grocery and meat market in a brick mercantile building situated at 1122 West Erie Street, Chicago, Illinois. Each of the three policies insured against business interruption loss up to an amount of $10,000. Each policy also included an endorsement entitled, “Business Interruption Form No. 3,” which, in pertinent part, provides :

“1. Subject to all its provisions and stipulations, this policy covers only against loss directly resulting from necessary interruption of business caused by damage to or destruction of real or personal property by the peril (s) insured against during the term of this policy, except as hereinafter specifically excluded or limited, on premises occupied by the insured as . . . and situated . . . Illinois.
“2. The measure of recovery in the event of loss hereunder shall be the reduction in gross earnings directly resulting from such interruption of business, less charges and expenses which do not necessarily continue during the interruption of business, for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace such part of the property herein described as has been damaged or destroyed, commencing with the date of such damage or destruction and not limited by the date of expiration of this policy, but not exceeding the ACTUAL LOSS SUSTAINED by the Insured resulting from such interruption of business. Due consideration shall be given to the continuation of normal charges and expenses, including payroll expense, to the extent necessary to resume operations of the Insured with the same quality of service which existed immediately preceding the loss.
“3. Gross Earnings: For the purposes of this insurance ‘Gross Earnings’ are defined as the sum of:
“ (a) Total net sales, and
“ (b) Other earnings derived from operation of the the business, less the cost of:
“(c) Merchandise sold, including packaging materials therefor,
“(d) Materials and supplies consumed directly in service (s) sold, and
“(e) Service (s) purchased from outsiders (not employees of the Insured) for resale which do not continue under contract.
“No other costs shall be deducted in determining ‘Gross Earnings.’
“In determining ‘Gross Earnings’ due consideration shall be given to the experience of the business before the date of damage or destruction and the probable experience thereafter had no loss occurred.
“7. Resumption of Operations: If the Insured, by resumption of complete or partial operation of the property herein described or by making use of other property, equipment or supplies, could reduce the loss resulting from interruption of business, such reduction shall be taken into account in arriving at the amount of loss hereunder.”

Prior to 1:00 a. m., on June 27, 1958, plaintiffs’ business was being operated in the building on West Erie Street under a lease which was to expire on December 31, 1959. At that time a fire occurred which caused substantial damage and destruction to plaintiffs’ property in the store and to the building.

During the period of 1958, prior to the fire, the building in which plaintiffs’ store was situated had been condemned by the City of Chicago under an area clearance project for the construction of the Northwest Expressway. In the condemnation proceedings, plaintiffs were awarded a judgment of $1,200 for their leasehold interest. Thereafter, on May 27, 1958, plaintiffs were served with notice by the City of Chicago, requiring them to surrender the premises on June 30,1958.

Following the fire, plaintiffs unsuccessfully negotiated a settlement with their insurers on the “contents” loss and “business interruption” loss policies. After summary judgment holding the various insurers liable to plaintiffs, both as to “contents” and “business interruption” loss, was entered on July 16, 1962, and affirmed by the Appellate Court, DiLeo v. United States Fidelity & Guaranty Co., 50 Ill App2d 183, 200 NE2d 405, the defendants in this cause amended their answer to plaintiffs’ complaint, admitting loss to plaintiffs from business interruption in the amount of $2,131.37, but denying any liability in excess of that amount. Trial before a judge without a jury proceeded on the issue of recoverable damages from the three insurer-defendants liable under the policies of business interruption insurance, resulting in a judgment for plaintiffs in the amount of $4,987.87.

In their cross-appeal, defendants contend that the court erred in failing to apply the “actual loss sustained clause” contained in Business Interruption Form No. 3 to limit the measure of recoverable damages. Defendants urge that under this measure plaintiffs suffered no actual business interruption loss beyond June 30, 1958, when their tenancy automatically terminated due to the prior condemnation proceedings, payment of award to plaintiffs, and notice of termination. By reason of such termination together with evidence that plaintiffs were not granted an extension of the right to remain in possession, it is argued that plaintiffs had a business interruption insurable interest for only the four days ending June 30,1958.

The trial court made specific findings of fact and conclusions of law relative to the issues raised by defendant. Among other things, the court found that notice of tenancy termination was served upon plaintiffs personally by Richard Cervelli, an employee of the Relocation Board of the City of Chicago. At the time of such service there was no evidence of any statement made to plaintiffs by Mr. Cervelli. Further, while there was testimony for the plaintiffs that they were assured that they would not be required to vacate the premises until a later date, the court was of the opinion that the witness was mistaken. The plaintiffs made no specific request for an extension of time regarding the June 30, 1958, termination of their tenancy, and no formal extension of time to vacate the premises was granted.

There was testimony for the defendants given by Anne Klope, Assistant Supervisor of the Relocation Board, that at the time of the service of notice on May 27, 1958, the policy of the Board with respect to extension of time in cases where a notice terminating tenancy had been served was that if there were no contract to wreck in force, the tenant would have been given an extension from a few days up to thirty days, but that if there were a contract to wreck, even though such contract was to wreck an entire area comprising numerous buildings, no extension of time to vacate would be given. It was further the policy that if the tenant failed to vacate on time, an eviction suit would be filed within a few days after the tenancy termination date. The Relocation Board did not take into consideration whether a particular building was scheduled for wrecking in the immediate or near future.

Prior to the fire, and on May 19, 1958, pursuant to a contract with the State of Illinois, Department of Public Works, the Midwest Wrecking Company commenced demolition work in connection with the land clearance for the construction of the Northwest Expressway. The contract covered about forty-five to fifty buildings, including the building in which plaintiffs’ store was located and work continued under the contract until May 19, 1959. Demolition of individual buildings included in the contract was indicated to the wrecking company by a district engineer of the State of Illinois. This engineer scheduled the demolition of the building in which plaintiffs’ store was located for August 1, 1958, and nothing more was said by him, other than that the building was ready for wrecking. Although razing of the building began on August 1, 1958, it was not established that the building would have been demolished on that date had it still been occupied and in use, rather than having suffered the loss and damage due to the fire on June 27.

The court further found that at a previous location on Huron Street, the plaintiffs had also occupied space subject to condemnation and had received notices to quit but had thereafter obtained extension permitting them to remain for approximately an additional six months, after which they moved to Erie Street in 1955. On various occasions in other instances the Relocation Board entrusted with the duty of occupant removal from condemned property had granted extensions of time for removal. Also, at the time of the fire, the plaintiffs had made no changes in their operation or with respect to location of their equipment and did not anticipate removal until later in 1958 when space in another building owned by their father would become available to them.

Upon these findings, the court postulated several conclusions of law, significant to this cross-appeal. The court held that the “actual loss sustained” clause at the end of the first full sentence of paragraph 2 in “Business Interruption Form No. 3,” (supra) is a limitation upon the measure of recovery provided in the first part of the same sentence, referred to as the “time to restore” clause.

The court further held that on June 27, 1958, when the fire occurred, plaintiffs continued to have an insurable interest in a going grocery business which was interrupted on that date because of the fire. Plaintiffs’ insurable interest in their business was not affected at the time of the fire by the previous award of $1,200 for their leasehold or the previous receipt of notice to vacate on June 30, 1958. Before the fire, plaintiffs reasonably expected to continue their profitable business and did not intend to abandon it, which action was compelled solely because of the fire. The recovery of plaintiffs under the policies, particularly “Business Interruption Form No. 3,” is not limited to either the date indicated for their removal by the notice terminating their occupancy on June 30, 1958, or by August 1, the date upon which the demolition of the structure actually commenced. Such recovery is also unaffected by the failure of plaintiffs to resume the grocery business after four months of business interruption either at the location described in the policies or elsewhere.

Finally, with respect to the issues of this cross-appeal, the court held that the burden of establishing that the plaintiffs could not have remained in the premises subsequent to August 1, 1958, in the absence of damage and loss by fire, was upon the defendants and they have not sustained that burden.

It is defendants’ theory that although the court concluded as a matter of law that the “actual loss sustained” clause contained' in Business Interruption Form No. 3 is a limitation on the measure of damages formulated in the “time to restore” clause of this same endorsement, it erred by failing to apply such limitation to the facts of the present case. Mr. Edward R. Brunke, a defense witness with experience in adjusting numerous business interruption losses, testified that the “time to restore” clause applies in determining the suspension or business interruption period in the usual case, though he had encountered losses in which the limiting language of the “actual loss sustained” clause controlled. Defendants cite Finer Amusements, Inc. v. Citizens Ins. Co. of New Jersey, 327 F2d 773, as direct authority for application of the “actual loss sustained” provision rather than the “time to restore” clause under policy endorsements similar to the case at bar. There the insured had policies protecting against the loss of rents for the building occupied by plaintiff in case of a fire which left the premises untenantable. The policy provided that the insurer would pay plaintiff an amount equivalent to the rents or rental value less charges and expenses as do not necessarily continue after the destruction or damage of the insured property, for only such length of time it would require, with the exercise of due diligence, to put the premises in tenantable condition, but not exceeding the actual loss sustained by the insured. While the Court of Appeals held that plaintiff had sustained no actual loss for which the insurer was liable, this determination was made by direct application of the policy formula for computing damages, namely, rental value less expenses which did not necessarily continue during the time required to repair the premises. In effect, the court’s determination of damages, as in the present case, was based upon the explicit policy language found in the “time to restore” clause.

Although the Finer Amusements case, supra, fails to support defendants’ argument, the issue itself remains to be decided whether under the facts of the present case plaintiffs’ recoverable business interruption loss was limited to the four days ending June 30, 1958, when their tenancy was terminated. Addressing their argument to the extent of plaintiffs’ insurable interest, defendants cite two cases where the insured was denied recovery on fire insurance policies covering loss of property when title to the insured property had passed to the condemners prior to its destruction. Peninsular Fire Ins. Co. v. Fowler (Fla), 166 So2d 206 (1964); Lanza v. National Fire Ins. Co. of Hartford, 246 F Supp 453. The rationale underlying each of these decisions is that lacking title to the insured property, the insureds did not have an insurable interest at the time of the loss. However, these cases involve policies covering building losses where the necessary insurable interest relates to proof of incidents of ownership or control of the property sufficient to demonstrate possible economic disadvantage to the insured upon some adverse occurrence to the insured property. See Peninsular Fire Ins. Co. v. Fowler, supra.

Similarly, several cases cited by plaintiffs to demonstrate that insureds have been allowed recovery under policies of fire insurance even after condemnation proceedings were initiated, are not in point. See Edlin v. Security Ins. Co., 269 F2d 159; Dursie v. American Union Ins. Co. of New York, 207 Pa Super 240, 218 A2d 87. These and other such authorities quoted by plaintiffs do not concern policies of business interruption insurance.

It is necessary to determine the insurable interest sufficient to support business interruption insurance in order to decide whether plaintiffs’ recovery was limited to the last four days of June, 1958. In his book, “Business Interruption Insurance,” (5th ed, Nov, 1964), under the heading, “Insurable Interest,” Henry C. Klein says at page 15:

“Earnings Must Be In Prospect—Occupancy, use of, or dependency upon the object of coverage alone does not create Business Interruption Insurable Interest in it. There must also be the prospect of business earnings, consisting of net profits or fixed charges and operating expenses that would have been earned but for property damage to and destruction of the object.”

Defendants contend that all prospect of business earnings with respect to plaintiffs’ grocery and meat market business on West Erie Street terminated on June 30, when plaintiffs were legally obliged to vacate the premises. We disagree.

Plaintiffs could have remained on the premises at the sufferance of the City of Chicago and until such time as a petition for ejectment was filed and fully processed. Although no formal extension of occupancy was granted and apparently none would have been granted because of the policy of the Relocation Board not to do so once a contract to wreck was in force, nevertheless, the assistant director of the Relocation Board testified that in the past condemnees had remained on the premises for a period of months following the termination of their tenancy. In fact, plaintiffs had remained six months beyond the date of termination of their tenancy at the former business location in Huron Street during 1955.

The plaintiffs testified that they had every intention to remain at their location in West Erie Street and continue their business until some later date in 1958 at which time space would become available to them in a building owned by their father. No changes were made in the operation of the business and not one item of equipment had been moved out of the premises in anticipation of releasing the premises, at the time the fire occurred.

Under these circumstances we believe that there existed a definite prospect of business earnings and continuance of a going business at 1122 West Erie Street when the fire curtailed operations. Although the prospective period of business earnings was indefinite, defendants have not demonstrated that plaintiffs could not have remained on the premises at the sufferance of the City of Chicago well beyond June 30, 1958, or that the building would necessarily have been demolished on August 1,1958, were it not for the fire.

The trial court, therefore, did not err in applying the measure of damages formulated in the “time to restore” clause of “Business Interruption Form No. 3” without reference to the “actual loss sustained” provision.

We next consider whether the trial court was correct in deducting from the gross earnings the salaries of all plaintiffs’ employees except for a two-week period which plaintiffs paid.

The plaintiffs contended in the trial court that they were entitled to collect for the whole four-month period, less an abatement of 25%. One of their witnesses, Mr. Louis Fienk, a public fire insurance adjuster testified that he had prepared a statement or proof of loss for the DiLeo brothers which was based on information that he got from their accountant and that only 25% of the salaries would be abated. He said he discussed with the DiLeos the possibility of eliminating the employees entirely for the four-month period and he was advised that these employees were mainly butchers who had been with the DiLeos for many years and had a substantial following of customers, and therefore they could not be dispensed with entirely.

Defendants contended in the trial court that the salaries of all of plaintiffs’ employees which were paid for only two weeks after the fire should properly be abated for all of the suspension or interruption period beyond the said two weeks. They argued that the sentence in Clause 8 which allowed for normal charges and expenses, meant that the expenses should not only have been necessary, but that they had to continue and that since the salaries were paid for only two weeks, such salaries abated as a noncontinuing expense for all of the suspension period beyond the two weeks.

The trial court adopted the contention of the defendants, stating that “under Form No. 3 all expenses which do not necessarily continue during the applicable suspension period must be abated. If any expense items are not paid, they must be abated because otherwise, if the salaries were allowed without evidence of payment, the insureds would receive more under the policy than they would have received if they had continued in business. The policies do not contemplate giving the insureds such extra profit.”

The plaintiffs now argue that construing business interruption Form No. 3 to permit abatement of salaries of key personnel merely upon the basis of nonpayment after a period of time is not consistent with the provisions of the policy because whether or not the employees were actually paid is not determinative, i. e., the policy form in question contemplates restoration of the business and it is for that, that the premium for the policy was paid. The form states that “due consideration shall be given to the continuation of normal charges and expenses, including payroll expense, to the extent necessary to resume operations of the insured with the same quality of service which existed immediately preceding the loss.” They point out that there is nothing in the provision that requires that the salaries actually be paid—only that they be normal charges and expenses that are necessary to adequate resumption of the assureds’ operations.

The defendants now argue that all of the salaries of plaintiffs’ employees beyond the two-week period were properly deducted from the reduction in gross earnings as charges and expenses which did not necessarily continue during said suspension or interruption period. They state that plaintiffs’ assertion that “nothing in said provision requires salaries to be paid,” is absurd on its face and that the quoted sentence plainly requires that all such normal charges and expenses shall not only be necessary, but they shall continue. They also point out that plaintiffs completely ignore throughout their argument the first sentence in paragraph 2 which prescribes that the measure of recovery shall be the reduction in gross earnings “less charges and expenses which do not necessarily continue during the interruption of business.” They explain that under this provision, even if an expense continued and was paid during the interruption period, if it were not necessary to do so, it would still be deductible.

We interpret business interruption Form No. 3 to mean that there shall be deducted from gross earnings charges and expenses which do not necessarily continue during the interruption of the business. However, we do not interpret this form to mean that all payroll expenses that are not actually paid do not necessarily continue within the meaning of the policy. The last sentence of paragraph 2 of Form No. 3 contemplates that there will be some normal charges including payroll expenses in restoring any business interrupted by fire. “Normal” is defined in Form 3 as “the condition that would have existed had no loss occurred as a result of damage or destruction by the peril (s) insured against.” The fact that the insured decides not to resume business does not change the nature of the expense even though it will probably make his proof more difficult.

Under policies which insure against loss from interruption of business, the fact that the period required to rebuild or replace with due diligence and dispatch is entirely theoretical does not impede recovery. Anchor Toy Corp. v. American Eagle Fire Ins. Co., 4 Misc2d 364, 155 NYS2d 600. In fact, the trial court so found in this case. In other words, If an insured suffers a business interruption because of fire and actually goes back into business, the reduction in gross earnings under Form 3 would be based on the actual amount of time necessarily spent to restore the business. However, if he decides not to go back into business, that fact does not impede recovery but he must prove the length of time it would have taken him to restore the business. He is entitled to recover in either event. The only difference is that in the first case his proof is governed by the time actually and necessarily taken to restore the business, while in the second case his proof is governed by estimates.

The fact that the payroll expenses are entirely theoretical should not impede recovery of them. If the assureds actually went back into business there should be deducted from gross earnings all payroll expenses less those the trial court finds plaintiffs necessarily expended to retain those key personnel necessary to resume business with the same quality of service which existed immediately preceding the loss. However, if plaintiffs do not go back into business, the abatement would be all of the payroll expense less the amount the trial court finds the plaintiffs would have had to expend for those key personnel it found insured would have necessarily had to retain in order for the insureds to resume business with the same quality of service which immediately preceded the loss.

Then too, by the very terms of the policy, the insured is required to furnish proofs of the amount of loss. He must liquidate the amount of the loss by his evidence sixty days before it becomes due by the policy. How he could make this proof and meet defendants’ requirement that payroll expense necessary to resume operations of insured for the period of business interruption be actually paid is difficult to see.

Defendant also argues that “the actual loss sustained” phrase in Form No. 3 prohibits plaintiffs from recovering for any salaries that have not actually been paid. The “actual loss sustained” phrase in Form No. 3 is obviously meant to apply only when there is an actual resumption of the insured’s business. The measure of loss is based on either of two criteria: (a) loss of gross earnings for a limited period of time as estimated when there is no resumption of business, or (b) actual loss, inferring an actual resumption of business. Since there was no resumption of business in this case, (a) and not (b) applies.

The trial court in this case found that the time it would have taken for plaintiffs to go back into business was four months. What the normal payroll expenses for key personnel plaintiffs would have had to incur during that time to resume business “with the same quality of service which existed immediately preceding the loss” is a proper question for the trial court to consider on retrial of this case.

Finally, plaintiffs contend that pursuant to the Illinois Interest Act, (c 74, § 2, Ill Rev Stats 1957), prejudgment interest on the award should be allowed.

Both parties agree that fire insurance policies are “written instruments” within the meaning of section 2 of the aforesaid Act. The question is from what date is interest allowable on moneys which a court determines are due under the policies. The applicable provision concerning when loss is payable under the policies in the instant case provides:

“The amount of loss for which the Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.”

In the case of Peoria Marine & Fire Ins. Co. v. Lewis, 18 Ill 553, the court said at 562-63:

“By the very terms of the policy the insured is required to furnish proofs of the amount of loss. The insured must liquidate the amount of the loss by his evidence sixty days before it becomes due by the policy. But by the contract it does become due within sixty days after this proof is made. It is true the amount may be controverted by proof, yet that will not change the principle, because the true amount may be variable. Whatever is due becomes due and payable within the time fixed, after the tender of proofs and will bear interest from that date.”

Upon authority of this case and of Stock v. Reliance Ins. Co., 96 Ill App2d 8, 238 NE2d 420, DiLeo v. United States Fidelity & Guaranty Co., 50 Ill App2d 183, 200 NE2d 405, and Jay-Bee Realty Corp. v. Agricultural Ins. Co., 320 Ill App 310, 50 NE2d 973, we hold that interest should be awarded upon the sums due commencing sixty days after proofs of loss were submitted to the respective defendants.

For the foregoing reasons this case is affirmed in part and reversed in part and remanded to the trial court for proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

EBERSPACHER, J., concurs.

GOLDENHERSH, P. J.,

dissenting:

I respectfully dissent from the conclusion reached by the majority.

In its findings of fact the trial court found that the time required, with the exercise of due diligence and dispatch, to restore the building to a condition suitable for use in the operation of plaintiffs’ business was 4 months (finding No. 30). This finding of fact is supported by the evidence.

There is no need to remand the cause to determine what the normal payroll expenses for key personnel necessary to enable plaintiffs to resume business would be during the four-month period, for the reason that the trial court has already done so. In its finding No. 24 the trial court adopted the calculations in defendants’ exhibit 2 which are predicated upon a normal payroll for the period of $12,040.42, and an actual payroll of $1,381.69, and the evidence sustains a finding that these expenditures were necessary within the contemplation of the policy. Had plaintiffs actually paid these sums for the four month period, they would be recoverable under the policy.

The fact that plaintiffs did, or did not resume business does not affect the measure of recovery under the policy. In either event the time in question is that required “with the exercise of due diligence and dispatch to rebuild, repair or replace such part of the property herein described as has been damaged or destroyed.” Even in instances where there is an actual resumption of business, there might still be an issue of whether it was accomplished with due diligence and dispatch, and in both situations the measure of recovery is the reduction in gross earnings, less charges and expenses which do not necessarily continue.

The evidence shows that although the retention of the employees was necessary to enable plaintiffs to resume operations with the same quality of service which existed immediately preceding the loss, the fact is that plaintiffs’ actual loss is only for the two-week period. In my opinion the judgment compensates plaintiffs for the actual loss sustained, and to award plaintiffs a sum of money admittedly not expended would result in a recovery in excess of what is warranted by the provisions of the policy.

In my opinion, the trial court awarded plaintiffs the sum due under the evidence, and in that respect I would affirm the judgment.

I agree with what was said by the majority with respect to prejudgment interest, and would remand the case for the sole purpose of modifying the judgment by awarding plaintiffs interest on the sum of $4,987.87, commencing 60 days after the date on which defendants were furnished proof of loss.


author: STOUDER, P. J.

text:
    The Village of Sheldon, in the County of Iroquois and State of Illinois, a Municipal Corporation, Plaintiff-Appellant, v. Joseph Max Zeitchick, Defendant-Appellee.
    Gen. No. 68-51.
    Third District.
    April 1, 1969.
    Milo J. Fleming, of Watseka, for appellant.
    Lapping, Niederman & Factor, of Chicago, for appellee.
   STOUDER, P. J.

This is an appeal by the Village of Sheldon, Plaintiff, from an order of the Circuit Court of Iroquois County dismissing charges brought against Joseph Zeitchick, Defendant, for violation of a Village ordinance. The ordinance alleged to have been violated is an ordinance declaring that going in or on private residences for the purpose of peddling, soliciting, etc. goods without the prior request of the resident is a nuisance. It is undisputed from defendant’s motion to dismiss the charges that the defendant was soliciting orders for the sale of encyclopedias and did go on the property of private residences for that purpose.

In seeking to reverse the judgment of the trial court, the Village argues that the ordinance was a valid and constitutional exercise of the police powers of the Village. However, we have recently had occasion to consider this question in Field Enterprises Educational Corp. v. Village of Wheeling (Appellate Court, First District) 109 Ill App2d 77, and in that case it was our opinion that a similar ordinance having the same legal effect was invalid as applied to the solicitation of orders for books, etc. because the legislature had not granted such power to municipalities. On the authority of Field Enterprises Educational Corp. v. Village of Wheeling, supra, and the cases cited therein, we hold that the ordinance in question is invalid as applied to the activities of defendant.

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

Judgment affirmed.

ALLOY and SCHEINEMAN, JJ., concur.