text:
    James C. Booth and Elizabeth Booth, Plaintiffs-Appellees, v. Peggy R. Sutton, Defendant-Appellant.
    Gen. No. 52,660.
    First District, First Division.
    October 21, 1968.

      Tom L. Yates, of Chicago, and Summers, Watson & Kimpel, of Champaign (Carl E. Abrahamson, of Chicago, of counsel), for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Harold W. Huff, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This appeal was brought by the defendant, Peggy R. Sutton, to reverse the dismissal of her Counterclaim for want of prosecution and the denial of her Amended Petition to vacate the order of dismissal. The actions and orders of the trial court all occurred at a pretrial conference. No questions are raised on the pleadings.

The essential facts are not in dispute. A complaint was filed by the plaintiffs on June 17, 1965, charging that defendant was guilty of certain negligent acts which caused a collision between their respective motor vehicles, resulting in personal injuries to James C. Booth and deprivation to Elizabeth Booth of her husband’s care, companionship, services and consortium. In her answer, defendant denied the charges of the plaintiffs and pleaded a Counterclaim, charging plaintiff, James C. Booth, with certain negligent and careless acts which caused said collision that resulted in personal injuries to her. Plaintiffs’ answer to the Counterclaim denied all allegations therein.

In the course of the pretrial proceedings of the Circuit Court of Cook County, the case was assigned to a pretrial conference. The case was set for a pretrial hearing at 9:00 a. m. on July 19, 1967, and it was ordered that plaintiffs, plaintiffs’ attorney, defense attorney, and a representative of the insurance carrier be present. Pursuant to said order, an attorney appeared at the pretrial conference on July 19, 1967, at 9:00 a. m., and informed the court that he had been engaged by defendant’s attorneys of record to appear for defendant; that he was familiar with the case, and that he was authorized to act in behalf of the defendant. The court then inquired as to the defendant’s whereabouts and was advised that she was a resident of British Columbia, Canada, doing graduate work at an educational institution; that it was not economically feasible for her to travel from British Columbia to Chicago for the purpose of attending a pretrial conference; and since there was a complete conflict in the case, her presence could serve no useful purpose, and therefore it was requested that defendant be excused from being present.

Plaintiffs did not personally appear at the pretrial conference, but their attorney appeared on their behalf, stating that plaintiffs were out of the State on vacation and that he, the attorney, had full authority to discuss the case on their behalf. The court continued the pretrial conference until the following day, July 20, 1967, at 8:30 a. m., stating that if plaintiffs and defendant were not present, the Complaint and Counterclaim would each be dismissed. On July 20, 1967, at 8:30 a. m., the plaintiffs failed to appear, but their attorney once again appeared stating that plaintiffs were still on vacation. Another attorney representing the defendant appeared and asked for leave of court to file the motion of the defendant excusing the personal appearance of defendant. The court refused to allow the filing of the motion and dismissed the Complaint and Counterclaim under Rule 219(c) (iii), of the Illinois Supreme Court Rules, Ill Rev Stats 1967, c 110A, § 219 (c) (iii).

On July 27, 1967, on the court’s own motion, without notice to the parties, an amended order was entered dismissing the Complaint, at plaintiffs’ costs, and the Counterclaim, at defendant-counterclaimant’s costs, for want of prosecution. Plaintiffs filed a motion to vacate the July 27, 1967, order on August 16, 1967, and on August 25, 1967, defendant filed an Amended Petition to vacate the orders entered on July 20 and July 27, 1967. On September 5, 1967, at the hearing on plaintiffs’ motion and defendant’s Amended Petition, the court ordered that the motion and Petition were each denied.

Defendant contends the trial court abused its discretion in arbitrarily dismissing defendant’s Counterclaim and denying defendant’s Amended Petition to vacate the order of dismissal. The proceeding before the court was a pretrial conference, pursuant to Illinois Supreme Court Rule 218, (111 Rev Stats (1967), c 110A, § 218), conducted for the purpose of disposing of the case or simplifying the issues involved. This was not a trial, nor were witnesses required to be present. Pertinent provisions of the June 6,1967, pretrial order are as follows:

“. . . The above-entitled cause was assigned to the undersigned for pretrial with a view to disposing of this cause, or a simplification of the issues.
“The pretrial will be conducted in accordance with Supreme Court Rules 218 and 219 (C).
“IT IS ORDERED that this cause be and it is hereby set for pretrial on Wednesday, July 19, 1967, at 9:00 o’clock a. m.
“IT IS FURTHER ORDERED that the PLAINTIFF and PLAINTIFF’S ATTORNEY and the DEFENSE ATTORNEY and a REPRESENTATIVE of the insurance carrier MUST be present at that time.
“IT IS FURTHER ORDERED that if plaintiff and plaintiff’s attorney fail to appear at said time, this cause will be dismissed for want of prosecution.
“IT IS FURTHER ORDERED that if defense attorney and a representative of the insurance carrier fail to appear at said time, plaintiff will be permitted to proceed to process this cause to verdict and judgment.”

The court dismissed defendant’s Counterclaim and denied her Amended Petition to vacate the order of dismissal pursuant to Supreme Court Rule 219(c) (iii), which provides:

“(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies, elsewhere specifically provided, such orders as are just, including, among others, the following: . . .
(iii) that he be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue.”

This court recognizes the importance of pretrial procedure and, specifically, the pretrial conference, to dispose of cases and to reduce the case load on the calendars of the courts of this State. Direction and control over pretrial procedure has been vested in the courts, while the Supreme Court has provided, through appropriate rules, powers of enforcement to promote pretrial disposition. The court conducting the pretrial conference has wide discretion in compelling compliance to pretrial procedures, and the exercise of such discretion will not be interfered with unless it appears that the court has abused that discretion. One of the most coercive measures to compel obedience to a pretrial order issued by the court, is the threat of dismissal of a party’s action in the event of noncompliance with such order. In Goldman v. Checker Taxi Co., 84 Ill App2d 318, 228 NE2d 177 (1967), we held that persistant failure of the plaintiff-appellant to comply with the orders of the court is a proper ground for dismissal of a petition to vacate a default order. In the instant case, the defendant has been barred from maintaining her Counterclaim against plaintiffs simply because she was not present at the pretrial conference. Yet the pretrial order did not require “the defendant” to be present at the pretrial conference — the order was directed to the plaintiffs, their attorney, defendant’s attorney, and a representative of the insurance carrier. There was no discussion of the issues between court and counsel, but the court dismissed the Counterclaim because of the absence of the defendant. Whether the trial court reasoned that since defendant filed a Counterclaim to plaintiffs’ Complaint, defendant then became “a plaintiff” and was properly ordered to appear, is not indicated in the record. Peggy Sutton’s conduct here did not warrant such harsh action. “The dismissal of a party’s cause of action is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court’s authority.” Allegro v. Afton Village Corp., 9 NJ156, 87 A2d 430 (1952).

Link v. Wabash R. Co., 370 US 626, 8 L Ed2d 734, 82 S Ct 1386 (1962), cited by plaintiffs, concerned dismissal of an action because of the failure of the litigant’s attorney to appear at a scheduled pretrial conference. The attorney had due notice that his presence was required at the conference, yet he did not offer a reasonable excuse for his not appearing. The Link case and other cases cited by the plaintiffs concerned dismissals of a cause of action because parties who were requested to be present at pretrial conferences failed to appear, and therefore are distinguishable from the instant case.

We conclude the trial court abused its discretion in the dismissal of defendant’s Counterclaim and the denial of defendant’s Amended Petition to vacate and set aside the order of dismissal. For the reasons given, the order of the trial court entered on July 20, 1967, dismissing defendant’s Counterclaim, the amended order entered July 27, 1967, and the order of September 5, 1967, denying defendant’s Amended Petition to vacate the orders of July 20, 1967 and July 27, 1967, are reversed and the cause remanded with directions to vacate the dismissal order and reinstate the cause on the dockets of the Circuit Court of Cook County.

Judgment reversed and remanded with directions.

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


source: Caselaw Access Project

author: EBERSPACHER, P. J.

license: Public Domain

text:
    Robert Hocking, Plaintiff-Appellant, v. A. C. Rehnquist, E. F. Rehnquist, Ruth Rehnquist, Dorothy Rehnquist, Kenneth W. Shaw, and James T. Watson, Jr., d/b/a Mt. Carmel Sand and Gravel Company, a Partnership, and Neal K. Berberich, Defendants-Appellees.
    Gen. No. 67-87.
    Fifth District.
    October 22, 1968.
    Rehearing denied November 14,1968.

      White & Aulvin, of Mt. Carmel, Conger, Elliott & Fechtig, of Carmi (John L. Aulvin and Ivan A. Elliott, Jr., of counsel), for appellant.
    Gosnell & Benecki, of Lawrenceville (Maurice E. Gosnell, of counsel), for appellees.
   EBERSPACHER, P. J.

This is an appeal by the plaintiff from a judgment for the defendants in an action for personal injuries.

The complaint filed herein contained two counts; the first count alleged negligence upon the part of the defendants and the second count alleged willful and wanton misconduct on the part of the defendants. The court directed a verdict for the defendants on the willful and wanton count. The jury returned a verdict for the plaintiff for $34,000 on the negligence count and also returned a special interrogatory finding the plaintiff guilty of contributory negligence. The court entered judgment for the defendants. Post-trial motions filed by the plaintiff were denied. The plaintiff has appealed from the court’s judgment.

Two issues are presented by the plaintiff in his appeal. The first is whether the court erred in directing the verdict for the defendant on the willful and wanton count. The second is whether the court erred in setting aside the jury verdict on the negligence count and entering judgment for the defendants; or in the alternative whether plaintiff is entitled to a new trial on that count.

The occurrence as revealed by the testimony happened shortly after noon on July 1, 1964, on a county blacktop road running between Keensburg and Belmont, Wabash County, Illinois. The plaintiff, Robert Hocking, a farmer, lived near the scene of the occurrence. Shortly before noon the plaintiff and Roy Perry, a friend of the plaintiff, left the plaintiff’s residence to combine wheat for a neighbor. The plaintiff drove the combine and Perry followed in a small truck. They proceeded westward on the blacktop. The blacktop extends generally westerly from Keensburg until it reaches the plaintiff’s residence and then gradually curves to the northwest with a gradual decline from the curve. The plaintiff’s residence is located on the south side of the curve. A small barn is located across the road from the plaintiff’s residence. Westwardly from the curve the road is straight for at least 2,000 feet. The road is designated as 20 feet wide.

At a point between 700 and 1,300 feet west of the plaintiff’s residence, the witnesses being in disagreement as to the exact distance, the plaintiff signaled Perry to pull off onto the right shoulder. The plaintiff parked the combine on the right shoulder and the truck driven by Perry was parked behind the combine. Again there was conflicting testimony as to whether the combine was completely off the road or whether a portion of it extended over the road. The testimony here ranged from the combine being completely off the road to testimony that the upper portion or header of the combine extended three feet onto the road.

The plaintiff had apparently stopped the combine when he observed his wife coming from the east in the family automobile. Mrs. Hocking was returning from the bank in Mt. Carmel where she had obtained cash to pay the farmhands. By any means, Mrs. Hocking pulled the automobile off on the opposite (south) shoulder. The front of the automobile was approximately opposite or parallel with the front of the combine. Again there was a dispute among the witnesses as to the exact location of the automobile. Here the testimony ranged from the automobile being completely off the road to it being 2-4 feet on the road.

The plaintiff crossed the road and talked with his wife through the driver’s window. During the time that the plaintiff was talking with his wife, a pickup truck with a camper safely passed headed east, between the same physical obstructions as were present when defendant subsequently approached.

Then the defendant’s truck approached from the east heading west. The truck was equipped with a tank and asphalt spraying equipment. The widest portion of the truck measured seven feet, ten inches. At the time it contained a capacity load of road oil. As the truck passed between the combine and automobile the plaintiff was struck and severely injured. Although there is a difference of opinion as to the speed of the truck, there is no dispute that the defendant driver of the truck did not sound his horn and did not apply his brakes.

Turning first to the question of whether the court erred in granting the directed verdict for the defendants on the willful and wanton count, we are guided by the recent Supreme Court decision in Pedrick v. Peoria & Eastern Ry. Co., 37 Ill2d 494, 229 NE2d 504 (1967). In Pedrick the Court stated:

“In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

In reviewing the evidence in order to apply the test, the least that may be said is that there is disagreement as to nearly every fact necessary to determine the basic issue of whether the defendant was guilty of willful and wanton misconduct. Although there is agreement as to the width of the road and the width of the truck there is dispute, i. e., a question of fact, as to whether the combine extended over the road, and if so how much, where Mrs. Hocking’s car was parked in relation to the road, whether the plaintiff was standing on the road or the shoulder, the distance from the curve to the point of collision, the distance at which the defendant either did or could have observed the obstacle, if indeed there was one, in his path, and the speed at which the defendant approached the scene.

The resolution of all these basic facts, is of course, necessary before a determination can be made of whether the defendant is guilty of willful and wanton misconduct. It is quite conceivable under the multitude of variables presented in the instant case that the jury could find that the defendant’s action amounted to willful and wanton misconduct. Even if the jury were to find that one or both of the plaintiff’s vehicles extended over the highway, if the jury were also to find that the defendant, after knowledge of the impending danger failed to exercise ordinary care to prevent the collision it would be justified in finding the defendant guilty of willful and wanton misconduct. This is not new law in Illinois. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569, 69 NE2d 293; Wallace v. Radovick, 55 Ill App2d 264, 204 NE2d 835 (1965); Walsh v. Gazin, 316 Ill App 311, 316, 45 NE2d 95 (1942); Kunz v. Larson, 15 Ill App 2d 126, 135, 145 NE2d 746 (1957). Here there is ample evidence that defendant Berberich, the driver of the truck, could have observed whatever hazard was present, at a distance in which he could have taken such action as was necessary to avoid the occurrence. Furthermore, even under the testimony most favorable to defendants regarding obstructions extending onto the 20-foot surfaced highway, there was room for the truck to pass safely. Under such circumstances the question of whether there was willful and wanton misconduct on the part of the defendant driver was a question for the jury, and the verdict should not have been directed.

Turning next to the remaining allegations of error, the defendant complains, among other things, of the wording of the special interrogatory and the giving of defendant’s Instructions Nos. 4 and 5.

The plaintiff contends that the court erred in giving defendant’s Instruction No. 8, a special interrogatory which provided as follows:

“The Jury will from the evidence and under the instructions of the Court answer the following question on the form handed you herewith for that purpose by writing under the question either ‘yes’ or ‘no’ and each Juror will sign his or her name following said answer on said form:
“ ‘Question: Do you find from the greater weight of the evidence in this case that Plaintiff was free from negligence at and immediately prior to the occurrence involved in this cause, which proximately caused or contributed to cause his injury?’ ”

The specific objection of the plaintiff is that the interrogatory was drafted in a confusing negative form and used the phrase “free from negligence” which was inconsistent with the other instructions and implied that the standard to be applied to plaintiff was greater than the standard of ordinary care.

We have examined all of the instructions given by the court. From such examination we find that separate instructions were given defining ordinary care, negligence and contributory negligence. However the interrogatory, rather than using the term “contributory negligence” queries the jury as to the plaintiff being “free from negligence.”

Although we do not hold this inconsistency to be reversible error in itself, we do feel that such an interrogatory could tend to confuse the jury. Instructions are read and should be viewed as a connected series. Instructions to the jury should be simple, brief, impartial and free from argument. Supreme Court Rule 240, chapter 110, 111 Rev Stats 1967. By the same token, interrogatories should contain a single direct question and should not be repetitious, misleading, confusing or ambiguous. The interrogatory should, of course, use the same language or terms as are contained in the instructions. The interrogatory given in the instant case fails in this regard.

Defendants’ Instruction No. 4 was in IPI Form 60.01, quoting a portion of paragraph 185, chapter 95%, Ill Rev Stats 1963, as follows:

“Upon any highway outside of a business or residence district no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main-travelled part of the highway when it is practical to stop, park or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway.”

Even though the evidence is clear that there was a clear and unobstructed width of the highway between the standing vehicles and that a clear view of the stopped vehicles was available to defendant truck driver from a distance of 200 feet, it was within the jury’s province to determine from the evidence whether it was practical to park the vehicles off the main travelled part of the highway in view of the evidence that they were parked in part on the main travelled part of the highway. While it is not negligence to park on the shoulder either under the statute or the common law, Kennedy v. Burnett, 1 Ill App2d 206, 211, 117 NE2d 303, parking on the main travelled part of the highway when it is practical to park off the main travelled portion may be evidence of negligence. As a result, there was no error in giving the instruction.

Defendants’ Instruction No. 5 as given by the court quoted a portion of paragraph 172, chapter 951/2, Ill Rev Stats 1963, as follows:

“Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.”

The plaintiff urges that the instruction is inapplicable under the evidence of the case or in the alternative that the instruction is incomplete in that it omitted the converse duty of a driver approaching a pedestrian upon a roadway. We agree with the plaintiff. From the evidence there is no dispute that the plaintiff had completed his crossing of the highway prior to the approach of the defendant’s truck. The evidence is conflicting as to whether the plaintiff was standing on the shoulder or the road, but there is no evidence that plaintiff was in the act of crossing, and the fact that plaintiff had previously crossed before defendants’ driver came upon the scene cannot be said to justify the giving of the pedestrian crossing instruction. Insofar as defendants were concerned, plaintiff was simply a man standing either on or at the edge of the main travelled portion of the highway. There was no evidence that there was any crosswalk in the entire length of the road from Keens-burg to Belmont. The instruction as given could only serve to confuse the jury. The driver of a motor vehicle does not have an absolute right-of-way at places other than crosswalks.

The instruction omitted subsection (d) of the same section which provides as follows:

“(d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.”

If a crosswalk instruction is to be given, it should include the statutory duty of the driver to use due care as provided in subsection (d) of section 172, chapter 95y2, Ill Rev Stats 1963. Even a pedestrian is not bound to look for traffic proceeding in the wrong lane of traffic. Williams v. Yellow Cab Co., 11 El App2d 112, 136 NE2d 582. When this section of the statute is read as a whole, it is clear that a vehicle does not have the right-of-way over pedestrians under all circumstances. (Also see Parkin v. Rigdon, 1 Ill App2d 586, 589-590, 118 NE2d 342 (1954).) However, this is not the import of the defendant’s Instruction No. 5. Contrary to the assertion of the defendants, we find that the plaintiff’s objection to the instruction was both timely and adequate.

In view of the erroneous giving of Instruction No. 5 and the confusing language of the special interrogatory, the plaintiff is entitled to a new trial on the negligence count. Accordingly, the judgments as to both counts of the complaint are reversed and the cause remanded for a new trial.

Reversed and remanded.

GOLDENHERSH and MORAN, JJ., concur.


author: CULBERTSON, J.

text:
    Edward Bruske, Plaintiff-Appellant, v. Judith A. Arnold, Defendant-Appellee.
    Gen. No. 67-66.
    Third Judicial District.
    October 23, 1968.

      Dario Garibaldi, of Flossmoor, Nat Ozmon, of Chicago, and George Herbolsheimer, of LaSalle, for appellant.
    Kevin Kelly, of LaSalle, and Peter Ferracuti, of Ottawa, for appellee.
   CULBERTSON, J.

This action had its origin on January 3, 1965, at about 7:45 p. m., when the plaintiff, Edward Bruske, sought to walk across a busy street in the city of Peru at a point other than a marked pedestrian crosswalk. There is conflict as to whether he was struck by a car driven by defendant, Judith A. Arnold, or whether he walked into its side. In any event, plaintiff brought suit in the Circuit Court of LaSalle County to recover for personal injuries, and here appeals from a verdict and judgment for defendant. His contentions are that he was prejudiced by a special interrogatory given on defendant’s behalf; that the trial court erred in refusing to permit defendant’s impeachment on the basis of a prior and purportedly inconsistent statement; and that the closing argument of defendant’s counsel was improper and prejudicial in many respects.

The disputed special interrogatory, given at defendant’s request over plaintiff’s objections, was as follows:

“Was the plaintiff, Edward Bruske, in the exercise of ordinary care for his own safety before and at the time of the occurrence ?”

Consistent with its general verdict for defendant, the jury returned a “No” answer to such interrogatory.

For reasons more fully explained in the opinion of this court in DeBolt v. Wallace, 56 Ill App2d 380, 206 NE2d 469, it must be agreed that the special interrogatory was incomplete and improper for its failure to include the additional element of whether plaintiff’s negligence proximately contributed to his injuries. (Cf. Moyers v. Chicago & E. I. R Co., 43 Ill App2d 316, 193 NE2d 604.) At the same time, however, we cannot say on this record that it was so prejudicially erroneous as to require a reversal. While not a conclusive cure of the error in the interrogatory, the jury was fully instructed on proximate cause and when that circumstance is laid beside the evidence there is little reason to conclude that the jury was misled or confused by the deficiency in the special interrogatory. In our opinion the weight of the evidence supports the finding that plaintiff was guilty of contributory negligence, and the only reasonable conclusion which the jury could have reached from the same evidence was that such negligence was a proximate cause of plaintiff’s injuries.

Circumstances surrounding the unique impeachment issue raised in the appeal show that for many months prior to August 30,1966, counsel for defendant had made an appearance in the case and had formally engaged in pretrial activities. On the day named, without notice to anyone and despite the knowledge that defendant was represented by counsel, a private investigator employed by plaintiff’s counsel appeared at the home of defendant with a court reporter and took a question and answer statement from defendant concerning the accident involved in the pending litigation. At the trial a motion of defendant to suppress the statement of August 30, 1966, was granted in limine, the remarks of the trial court indicating his ruling to have been based upon a belief that the statement had been unfairly and unethically procured. Later, the court refused a proffer by plaintiff of portions of the statement claimed to be inconsistent with defendant’s testimony at the trial.

We are first met here by arguments and counterarguments as to whether the portions of the statement relied upon by plaintiff in fact serve to impeach defendant’s trial testimony. And while we lean to the view that the statement, when read in its entirety and in proper context, is not materially contradictory, we feel the impact of the manner in which the statement was obtained could have upon future litigation makes it incumbent upon us to determine the primary issue of whether the trial court properly suppressed defendant’s statement.

To support his contention that the court erred, plaintiff relies upon the principle, propounded by many authorities, that even though evidence may have been obtained illegally it is nonetheless admissible in a civil action if it is relevant to the issues of the case. Justification for the rule is founded upon the notions that the ascertainment of the truth is more important than the manner in which the evidence was obtained, and that to conduct collateral inquiries into the manner in which evidence was acquired would, as Wigmore puts it, “jeopardize the primary litigation by delaying, interrupting, confusing and sometimes frustrating it.” (See: 8 Wigmore on Evidence (1961 ed), §2183; 29 Am Jur2d, Evidence, § 408, pp 466-467; Mossman v. Thorson, 118 Ill App 574, 576; Thanhouser v. Milprint, Inc., 9 App Div2d 833, 192 NYS2d 911.) However, none of the authorities or decisions presented to us are precisely applicable, and to our minds there are far deeper considerations than a mere rule of evidence presented by the instant case.

For many years now, once litigation has been filed and all parties have appeared, the pretrial search for, and disclosure of, matters relevant to the issues of the subject matter involved in the pending litigation has been controlled by discovery rules promulgated by our Supreme Court. They are presently found in Rules 201 through 219, Part E, Article II of the Illinois Supreme Court Rules. (Ill Rev Stats 1967, c 110A, Rules 201 thru 219.) And while the decisions of the court leave little doubt that their primary purpose is to permit the parties to seek out the truth unfettered by technical avoidances (e. g., Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410; People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6) we believe the rules were also intended to have the equally important purpose of fixing the guidelines for a fair and orderly procedure by which discovery may be accomplished. Indeed, Rule 201 (c) specifically provides for protection against abuses, which may be equated with unfairness, through the media of protective orders or court supervision. Still another protection, which we feel has significance here, is the direction of Rule 201 (d) that discovery may not be initiated “prior to the time all defendants have appeared or are required to appear.” The logical inference is, we believe, that the attorney for defendants must be dealt with in accomplishing discovery. With specific reference to oral depositions, and again for the undoubted purpose of insuring fairness and protection, Rule 206 ordains that a party desiring to take a deposition shall “serve notice in writing a reasonable time in advance on the other parties,” while Rule 207 requires the deposition to be signed by the deponent and authenticated by the officer before whom it is taken. These are not mere idle directions, for

the rules of the Supreme Court have the force of law when adopted. Harris v. Annunzio, 411 Ill 124, 103 NE 2d 477; Department of Finance v. Sheldon, 381 Ill 256, 44 NE2d 863.

Viewed from the standpoint of stark reality, what plaintiff’s counsel did here was to cause defendant’s deposition to be taken on oral examination without prior notice to anyone, and in complete disregard of Canon 9 of the Canons of Ethics adopted by the Illinois State Bar Association which provides in pertinent part: “A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; .. . .” As could be expected, the resulting statement was accomplished to some degree by leading questions. Under the circumstances that an action had been filed and counsel had appeared for defendant, and limiting ourselves to the matter of taking such a statement from a party, as distinguished from some other person, we are of the opinion that the trial court properly suppressed defendant’s statement and correctly refused to receive the portions of it proffered in evidence. To hold otherwise would not only condone unethical practice but, more importantly, would reduce the requirements for fair and orderly procedure found in the discovery rules to empty platitudes. We believe it would produce chaos and be derogatory to the best interests of the public, the courts and the profession to give sanction to a practice whereby a party to pending litigation may be questioned by opposing counsel or his agents without notice, restriction or inhibitions by rules of practice and canons of ethics.

In an extensive attack on the final argument of counsel for defendant, it is now urged by plaintiff that the argument was “irreparably prejudicial” because counsel: (a) asked the jurors to place themselves in the position of defendant; (b) argued his personal experiences as an attorney; (c) launched a vindictive attack on plaintiff and his attorney; and (d) implied that plaintiff had been drinking although the court had eliminated the issue from the trial. While we think these claims are exaggerated to some degree, it is sufficient to point out that these matters are not open to our consideration in this case. In none of the instances of which complaint is now made did plaintiff object, seek a ruling or move for a mistrial. He thus waived the alleged error and cannot complain for the first time on review. (Lindroth v. Walgreen Co., 338 Ill App 364, 383-384, 87 NE2d 307, affd 407 Ill 121, 136, 94 NE2d 847; Pearman v. Morris, 15 Ill App2d 486, 499, 146 NE2d 589; Andres v. Green, 7 Ill App2d 375, 129 NE2d 430; McElroy v. Force, 38 M2d 528, 232 NE2d 708.) We are not unmindful that the rule has an exception where the argument of counsel is so inflammatory and prejudicial as to deteriorate the judicial process and deny a fair trial. (Belfield v. Coop, 8 H12d 293, 134 NE2d 249; City of Chicago v. Pridmore, 12 M2d 447, 147 NE2d 54; City of Quincy v. V. E. Best Plumbing & Heating Supply Co., 17 Ill2d 570, 162 NE2d 373.) From our examination of the entire record, however, particularly the arguments of counsel, we cannot say the remarks now complained about were so materially prejudicial as to warrant our intervention.

Additional charges levelled at the closing argument of defense counsel are that it misrepresented and contradicted the testimony of the plaintiff, and that, with no basis in the evidence, the jury was told that plaintiff’s attorneys had directed independent witnesses not to talk to defense counsel. These contentions are arrived at, however, only by undue selectivity from the record, and in our opinion the trial court did not abuse its discretion in overruling plaintiff’s trial objections. Defendant had a right to argue on the basis of evidence adduced from the cross-examination of plaintiff, and was not confined to what was stated on direct examination as plaintiff’s posture here necessarily assumes. Again, while one witness did deny that he had been told not to talk to defense counsel, other portions of the record sustain defense counsel’s argument that such a tactic was pursued. Within this point of argument it is also contended that the testimony of other witnesses was contradicted and misrepresented; however, in these instances proper and timely objections were not made in the trial court so as to preserve the contentions made for review.

The ultimate question on review is not whether a trial was scrupulously free from error, but whether there was error which operated to the prejudice of the appealing party or unduly affected the outcome below. (Nelson v. Union Wire Rope Corp., 31 Ill2d 69, 118, 199 NE2d 769.) Applying that test here we find no reason to disturb the judgment appealed from and it is therefore affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Ray Griswold, Defendant-Appellant.
    Gen. No. 67-79.
    Third Judicial District.
    October 23, 1968.

      Martin H. Katz, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   CULBERTSON, J.

After a jury trial in the Circuit Court of Rock Island County, the defendant, William Ray Griswold, was convicted of armed robbery and sentenced to the penitentiary for a term of not less than five nor more than twenty-five years. At the trial, five eyewitnesses identified defendant as one of two unmasked men who had robbed a Moline supermarket of $9,600 at about 2:30 p.m. on October 28, 1966. For the defense, six alibi witnesses placed defendant either at his home or in taverns in East Peoria, some one hundred miles from Moline, immediately before, during and after the time the robbery was occurring. Asserting that the conflicting nature of the evidence requires a record free from any error, defendant has prosecuted this appeal contending that he was prejudiced by trial errors, and that the court abused its discretion and deprived defendant of constitutional rights in refusing to grant a continuance requested on the day of trial.

Background essential to the contention last stated shows that an indictment was returned against defendant on December 8, 1966. He failed to appear for arraignment on January 27,1967, and at that time a bond he had posted at the time of his arrest was ordered forfeited. Thereafter, the sequence of events was as follows: On February 24, 1967, the bond forfeiture was set aside, defendant was arraigned and was ordered to file motions by March 6; on the latter date the public defender was appointed to represent defendant and was then granted two continuances, first to March 13 and then to March 27, to file motions; trial was set for May 8, 1967, but defendant was granted a continuance to May 10 to obtain private counsel, even though the jurors were assembled and the State ready for trial; on May 10, with the jurors again assembled, a further continuance was granted when defendant represented that his retained counsel could not attend and he was directed to have his attorney file an appearance by May 19; when the latter date arrived, neither defendant nor an attorney appeared, whereupon a capias issued and defendant was brought before the court on June 1; on the latter occasion, when defendant stated he was having difficulties in retaining counsel, the court reappointed the public defender and set the trial for June 19,1967, at 9:30 a.m.

Defendant failed to appear for trial at the appointed time but was soon found and taken into custody under a bench warrant, and remanded to the county jail. At 1:25 p. m. defense counsel advised the court that defendant appeared to him to have been intoxicated when taken into custody at 10:00 a. m., and moved that the trial be continued for such reason. After viewing defendant and hearing evidence from a deputy sheriff that defendant was not presently drunk, but only “hung over,” the trial court concluded that defendant was physically capable of standing trial, denied the motion for continuance and proceeded to the selection of a jury.

A motion for continuance is addressed to the discretion of the trial court, (Ill Rev Stats 1965, c 38, par 114-4 (e)), and in our opinion there is clearly nothing in this record which would permit or justify a disturbance of the trial court’s ruling. Where the problem has arisen courts have held that self-induced intoxication of an accused is not a valid or sufficient reason to continue his trial, and we are in accord with that view. (Bourne v. State, 103 Miss 628, 60 So 724; State v. Ellvin, 51 Kan 784, 33 P 547. Cf. State v. Gannaway (Mo), 313 SW2d 653 (1958).) A contrary view would, in our judgment, when coupled with our facile bond laws, place in the hands of an accused too potent a weapon with which to delay, harass and frustrate the administration of criminal justice. Furthermore, in the present case the court made an inquiry into defendant’s state of sobriety and condition to stand trial and no contention is made here that the finding of the court was contrary to the evidence. Since this is so, there is no basis upon which to say that the court abused its discretion.

Nor are we impressed with the argument that causing defendant to start trial in a “hung over” condition resulted in prejudice which denied him his constitutional right to a fair trial. There is ample credible evidence in the record which supports the jury’s verdict and establishes defendant’s guilt beyond all reasonable doubt, leaving little room to say that the jury acted out of prejudice. Moreover, an individual may waive the constitutional rights designed for his protection and we think there was a waiver in this case. Defendant’s condition was self-inflicted and if it can be said the situation was offensive to the concept of fundamental fairness implicit in the constitutional guarantees of due process, the onus must be laid at defendant’s door rather than attributed to the court or those charged with the duty of prosecution. To hold otherwise would be to permit defendant to profit by his own wrong. Cf. People v. De Simone, 9 Ill2d 522, 532-533, 138 NE2d 556; People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404.

One of the alibi witnesses for defendant was a Bart Dunkerly who gave a nonresponsive answer that he recalled a newspaper article about defendant which “said something about when he came into court he (sic) had a doctor examine him because they thought he was intoxicated.” Defense counsel objected on the grounds of irrelevancy and added an explanatory comment which demonstrated his awareness that the answer had been unresponsive. He did not, however, move that the answer be stricken. Counsel representing defendant on appeal now contend that the answer was hearsay, and that the reference to intoxication created an unfavorable impression which “could not be remedied other than by strong admonition to the jury by the Judge to disregard such testimony.” Both of these contentions are patent afterthoughts which may not be raised on appeal. It is well settled that timely objections to hearsay statements must be made at the trial and cannot be raised for the first time at appellate level. (People v. Cobb, 52 Ill App2d 332, 340, 202 NE2d 56.) Similarly, where a defendant does not avail himself of his right to make a motion to strike an unresponsive answer, he cannot complain on review. People v. Kissane, 261 Ill App 621, 632-633, affd 347 Ill 385,179 NE 850.

Defendant’s wife appeared as one of his alibi witnesses and, during closing arguments to the jury, the prosecutor commented on her testimony as follows: “What did Mrs. Griswold testify to as to her husband’s employment? She said he did odd jobs now and then. I submit to you the testimony in this case indicates that he does odd supermarket jobs.” While we agree that such comments, while potentially within the bounds of legitimate inference, should not have been made since they did not relate to any specific evidence before the jury. In view of the record in this cause, however, the making of such comments in the oral argument would not constitute reversible error.

Finally, it is contended that the trial court erred in giving People’s Instructions Nos. 2 and 7, and in refusing to give Defendant’s Instruction No. 2. One of the People’s instructions complained about was, to use the words of the court in People v. Rogers, 16 II12d 175, 181-182, 157 NE2d 128, “a stock instruction that the jury had a right to consider the evidence in light of their own knowledge and observation in affairs of life.” As Rogers indicates, the giving of this instruction in a criminal proceeding has been consistently approved, and we see no logic to defendant’s unsupported suggestions that it deprives a defendant of the presumption of innocence and lowers the standard which requires proof beyond a reasonable doubt. (See: People v. Turner, 265 Ill 594, 600, 107 NE 162.) Other instructions fully covered presumption of innocence and the standard of proof, and we do not see how the jury could have been confused or misled. The other People’s instruction attacked was a balanced instruction which, in a first paragraph, recited the requisites for finding defendant guilty and, in a second paragraph, set forth the basis for finding defendant innocent. Defendant’s objection is that the instruction places undue emphasis upon the paragraph relating to a finding of guilty because it is stated first. No authority is advanced for this novel proposition and we believe it is without merit. The defense instruction refused related to reasonable doubt and we agree with the apparent decision of the trial court that it was redundant and repetitious in light of other instructions given on behalf of both the People and the defendant. Repetitious instructions are not favored in the law, and are to be avoided. People v. Dilworth, 67 Ill App2d 384, 393, 214 NE2d 9; People v. Sawhill, 299 Ill 393, 410, 132 NE 477.

We have carefully reviewed the record, one which presents a difficult if not impossible task for an attorney seeking review, and find no reversible error. Accordingly, the judgment of the circuit court of Rock Island is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    Francisco V. Quagliano, Plaintiff-Appellant, v. Oliver D. Johnson, Defendánt-Appellee.
    Gen. No. 68-2.
    Third Judicial District.
    October 23, 1968.

      William E. Stewart, of Kewan.ee, for appellant.
    Andrews & Andrews, of Kewanee, for appellee.
   CULBERTSON, J.

Plaintiff, Francisco V. Quagliano, brought this suit against Oliver D. Johnson, defendant, charging him with having alienated the affections of plaintiff’s wife. A jury returned a verdict for defendant and plaintiff has prosecuted this appeal. He contends that the verdict was against the manifest weight of the evidence; that newly discovered evidence that a material witness testified falsely entitled him to a new trial; and that the trial court erred in regard to instructions and in certain of its rulings on evidence.

We see no beneficial purpose in setting forth the evidence upon which the jury acted, inasmuch as the record discloses that plaintiff is precluded from raising the question whether the verdict was against the manifest weight of the evidence. In a case of this character, a plaintiff has the burden of proving three propositions. First, that he had the care and affection of his wife; second, that overt acts, conduct or enticement on the part of defendant caused those affections to depart; and third, that actual damage was sustained by the plaintiff as a result of the alienation. (Roe v. Roe, 315 Ill 120, 122, 145 NE 804; Farrier v. Farrier, 46 Ill App2d 471, 474, 197 NE2d 163.) Here, at the conclusion of the evidence, plaintiff submitted each of these propositions to the jury by special interrogatories and, in each instance, the answers were favorable to defendant and manifested findings by the jury that plaintiff had not sustained his burden of proof as to any of the propositions. Despite these unfavorable findings, plaintiff made no motion to set them aside, did not object to them as being against the manifest weight of the evidence, and did not in any manner attack them in his motion for a new trial. These omissions are necessarily fatal to his contention that the verdict is against the manifest weight of the evidence. Courts of review in this jurisdiction have frequently held: (a) that a party is conclusively bound by an answer to a special interrogatory on a material issue unless he moves to set it aside, or attacks it in his motion for new trial, and (b) that a general objection that the verdict is contrary to the manifest weight of the evidence is not sufficient to preserve for review questions going to the propriety of a special finding. (Brimie v. Belden Mfg. Co., 287 Ill 11, 122 NE2d 75; Taake v. Eichhorst, 344 Ill 508, 176 NE 765; Biggerstaff v. New York, C. & St. L. R. Co., 13 Ill App2d 85, 141 NE2d 77;

Westlund v. Kewanee Public Service Co., 11 Ill App2d 10, 136 NE2d 263; Rubottom v. Crane Co., 302 Ill App 58, 23 NE2d 354.) Absent some objection or challenge in the court below, we must consider the special findings to have been fully supported by the evidence. (Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 136, 200 NE2d 128; Forslund v. Chicago Transit Authority, 9 Ill App2d 290, 294-295, 132 NE2d 801; Voigt v. Anglo-American Provision Co., 104 Ill App 423, affd 202 Ill 462, 66 NE 1054.) Since this is so and since the answers to the interrogatories are conclusive of the issues in the case, the question of whether or not the verdict was against the manifest weight of the evidence is not before us.

Plaintiff’s wife testified at the trial that she had, at times during 1963 and 1965, consulted with three different attorneys about getting a divorce. Subsequently, in connection with his post-trial motion, plaintiff produced affidavits of two of the attorneys averring that she had not consulted them about a divorce, whereupon defendant countered with an affidavit of the third attorney reflecting his belief that he had been consulted in 1965 as the wife had testified. Plaintiff now urges that the wife gave false testimony and that the trial court erred in not allowing a new trial in light of the newly discovered evidence of her false statements. And while not spelled out, we take plaintiff’s position to be that the purported false testimony had bearing on the issue of whether he had the affections of his wife when her close association with defendant commenced.

It is indeed the law that newly discovered evidence that a material witness testified falsely on the trial may alone be sufficient to warrant a new trial, and it likewise has frequently been stated that courts should not hesitate to grant a new trial on account of newly discovered evidence, where it is apparent or likely that it might change the result upon a retrial. (People v. Cotell, 298 Ill 207, 214-217, 131 NE 659; Swiney v. Miller, 253 Ill App 81, 88.) On the other hand, it has been held that newly discovered evidence which serves merely to impeach or discredit a witness does not constitute a ground for a new trial, particularly where it is cumulative and not conclusive on any point material to the issue of the case. (People ex rel. Partello v. McCullough, 210 Ill 488, 518, 71 NE 602; Chicago & E. I. R. Co. v. Stewart, 203 Ill 223, 224, 67 NE 830; Morsovillo v. South Suburban Safeway Lines, Inc., 49 Ill App2d 219, 221-222, 199 NE2d 643.) Testing the record here by these principles, we believe the trial court properly refused to grant a new trial. The testimony of the two attorneys at best could only be used to partially impeach and discredit the wife. Most certainly it would not be conclusive on the issue of whether plaintiff had lost his wife’s affection, and in our opinion any denial on their part that the wife had consulted them about a divorce in 1963 and 1965 would not materially alter the outcome upon a retrial. Quite apart from the circumstance that the affidavit of the third attorney makes it appear the wife testified truthfully that she had discussed divorce in 1965, there was, even without considering the matter of a contemplated divorce, other evidence in abundance from which the jury could reasonably have concluded that the affections of the wife had been alienated by plaintiff’s own conduct long before April, 1966, when her close association with defendant is alleged to have commenced.

Plaintiff called his wife as a witness and he contends that the trial court erred in refusing to permit her to be cross-examined as a hostile witness, relying upon Rule 238 of the Illinois Supreme Court Rules of Practice which provides in pertinent part: “If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. . . .” (Ill Rev Stats 1967, c 110A, par 238.) We do not find, however, that the trial court abused its discretion in this matter. So far as the record has been brought to our attention, it shows that the witness answered all questions put to her willingly and without hostility. The mere fact that the wife may have been unsympathetic to the plaintiff’s case is not, ipso facto, as plaintiff seems to believe, sufficient to invoke the provisions of Rule 238. Necessarily, it can apply only to those witnesses who, while on the witness stand, prove themselves to be hostile or uncooperative or unwilling. Otherwise, the discretion to determine hostility would rest with counsel rather than the court.

When plaintiff’s wife was being cross-examined, she was permitted, over plaintiff’s objections, to testify as to acts of cruelty committed against her in 1963 and to relate that her husband had charged her with adulterous conduct in both 1961 and 1963. It is now urged that such evidence was irrelevant due both to substance and remoteness of time, and that the trial court erred in overruling the objections thereto. We do not agree. Evidence that a plaintiff’s own conduct alienated the affections of his wife has long been recognized as relevant in cases of this nature (see: Sackheim v. Miller, 136 Ill App 132; Diesel v. Diesel, 202 Ill App 554; 19 ALR2d 493) and, so far as the claim of remoteness is concerned, all of the evidence, including testimony of the plaintiff himself, shows a steady deterioration in the relationship between plaintiff and his wife from 1963 onward to the time of the alleged conduct of defendant which forms the basis of this suit. We are constrained to remark, too, it appears that the cross-examination complained of was elicited by, and was within the scope of, plaintiff’s direct examination of the witness.

For his final contention, plaintiff asserts that Defendant’s Instructions Nos. 2, 4, 5 and 6 were redundant in light of Plaintiff’s Instruction No. 9, and that Defendant’s Instruction No. 3 was a statement of inapplicable law. None of these instructions have been set forth in plaintiff’s brief, nor have we been given a description of their content sufficient to permit us to make an intelligent determination of the contentions made. In such a situation, a court of review will not search the record to find whether any error has been committed in the giving or refusal of instructions. (Petersen v. City of Gibson, 322 Ill App 97, 104, 54 NE2d 79; Jones v. Keilbach, 309 Ill App 233, 237-238, 32 NE2d 985; Darling v. Charleston Community Memorial Hospital, 50 Ill App 2d 253,200 NE2d 149.)

In our opinion the trial was free from reversible error and, accordingly, the judgment for defendant is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Russell Sloan, Defendant-Appellant.
    Gen. No. 10,916. (Abstract of Decision.)
    Fourth District.
    October 24, 1968.
   Opinion by PRESIDING JUSTICE SMITH. Not to be published in full.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    John J. Lazzaro, Plaintiff-Appellant, v. Adelbert D. Garrett, Defendant-Appellee.
    Gen. No. 68-20.
    Second Judicial District.
    October 28, 1968.
    Rehearing denied December 10,1968.

      Lawrence J. Ferolie, of Rockford, for appellant.
    Maynard, Maynard and Brassfield, of Rockford, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff appeals from a judgment in his favor in the amount of $5,000 by the Circuit Court of Winnebago County entered on a verdict of the jury. The cause had proceeded to trial on the issue of damages only since the defendant admitted liability in his amended answer.

It is the contention of the plaintiff that the verdict was inadequate and against the manifest weight of the evidence since he had introduced medical bills in the amount of $1,030.73 incurred as a result of his injuries and additional evidence of lost wages in an amount of $5,218.00. Plaintiff also urges that the inadequate verdict was caused by the erroneous inclusion and exclusion of certain evidence. To properly consider the plaintiff’s contentions, it is necessary to review the evidence in considerable detail.

John Lazzaro testified that he was a trooper with the Illinois State Police and had been so employed since 1941. On December 27, 1964, he was involved in an automobile accident admittedly caused by the negligence of the defendant. He stated that he noticed pain in his “neck, arm, elbows, shoulders and down my back” immediately after the occurrence and was taken to the hospital for X rays. The following morning, Lazzaro had “severe” pain in his shoulders, neck and elbows and went to Dr. Donald Lyddon, an orthopedic surgeon, to seek relief. At Dr. Lyddon’s direction, the plaintiff took 40 or 50 traction and ultrasonic treatments during the next 5 months but continued to have severe pain in his neck, arms, back and right hand. Although plaintiff continued to have an aching pain in his right shoulder, Dr. Lyddon in March of 1965, suggested that he return to work if a desk job was available. Plaintiff actually returned to work in May of 1965 but discovered that his capacity to perform the normal functions of a trooper were impaired by an inability to move his head easily or to grip the steering wheel and make written reports with his right hand. He was also unable to sit in a car for any long periods without pain and on one occasion was only able to get out of his squad car by crawling.

The plaintiff worked more or less regularly from July of 1965 to the end of 1966, although he continued to experience pain in his shoulders, neck and right hand. His last day of work was on January 4, 1967, and his employment terminated on May 9, 1967. Lazzaro further testified that prior to the accident he was always able to perform his duties as a police officer although he had strained his back in August of 1963 and was under a doctor’s care for 5 or 6 weeks. He also stated that at the time of trial he still had pain in his neck, shoulders, elbow and back.

Dr. Lyddon testified that he first saw Lazzaro on December 28, 1964, when he complained of pain in his neck, shoulders and elbows as a result of the accident. Lyddon noticed a muscle spasm in Lazzaro’s neck on that date and prescribed relaxant drugs and cervical traction to relieve the spasm. X rays of the cervical spine revealed minimal osteoarthritis but no evidence of fracture. On January 18, 1965, Lazzaro complained of pain in his right hand, and ultrasonic therapy was begun. Lyddon continued to treat his patient on a regular basis and by March 9,1965, diagnosed his illness as a ruptured cervical disc which if not corrected by surgery, might result in permanent nerve damage to the arm. On March 30, 1965, Lazzaro first complained to Lyddon of pain in the lower lumbar region of his back. By May, 1965, the pain in his neck and shoulders was no longer constant and Lazzaro returned to work. On July 16, 1965, Lazzaro exhibited full neck motion without pain but experienced pain in the lower back after prolonged driving. Dr. Lyddon last saw the plaintiff on December 5,1966, and because of the complaints that he made referred him to Dr. John Bender, a neurologist, since he still complained of recurrent pain in both arms and a weakness in the right arm.

Dr. Bender examined Lazzaro on December 22, 1966, and found a muscle wasting in the right hand and a rigidity of the spine. As part of his medical history, the plaintiff informed Dr. Bender that he “felt” a strain in his lower back at the time of the accident and a “snap sensation” in his lower back when he got back in his car. Thereafter, according to the history given Dr. Bender, Lazzaro had constant pain in his lower back and a numbness in his left leg. Complete X rays were taken in the course of the examination, including X rays of the lumbar region of the back and on the basis of his examination, Dr. Bender diagnosed the plaintiff’s illness as degenerative arthritis of the entire spine. Dr. Bender also “suspected” a cervical disc rupture although he was not able to “definitely establish” it. It was his opinion that the arthritic condition existed prior to December 27,1964, but that the trauma of that date could have “triggered” or aggravated Lazzaro’s condition of ill-being. It was his opinion also that Lazzaro was incapable of performing the normal functions of a police officer as a result of that condition.

At the request of the defendant, the evidence deposition of Dr. Michael Reiffel was read to the jury. Dr. Reiffel had examined Lazzaro on April 24, 1964, in regard to his injury of August, 1963. Lazzaro told Dr. Reiffel that on that occasion he was removing an obese woman from an automobile when he experienced a “sharp, snapping pain in the lower portion of his back.” X rays of the lower spine were taken on April 24, 1964, and revealed arthritic changes in the facet joints and a flattening of the lumbar disc due to degeneration. It was Dr. Reiffel’s opinion that this arthritic condition had existed prior to August, 1963, was “permanent and progressive” and that there was an impairment in the motion and function of the left leg. Dr. Reiffel saw the plaintiff again on September 9, 1964, when he complained of pain in his back, and an inability to bend and a numbness in his left leg.

There was no objection to the medical bills submitted by the plaintiff or as to the time he was absent from work. With this and other evidence before it, the jury returned a verdict of $5,000 for the damages suffered by the plaintiff.

Ordinarily a court will not interfere with the discretion of the jury in its assessment of damages except where they are palpably inadequate or it is clear that a proven element of damages has been ignored. Johanneson v. Ring, 82 Ill App2d 340, 348, 226 NE2d 291; Haleem v. Onate, 71 Ill App2d 457, 219 NE2d 94. It was contended by the plaintiff that the award of $5,000 was palpably inadequate since it was less than the special damages proven and that it is therefore against the manifest weight of the evidence and should be reversed.

As we have seen, the jury was presented with competent evidence that the plaintiff had suffered a cervical rupture as a result of the accident. There was also evidence that he had a degenerative arthritic condition of the spine prior to the accident and that it would inevitably become worse as he grew older. While plaintiff was entitled to recover for damages that resulted from any aggravation of this condition, it was necessary for him to prove that those damages were proximately caused by the negligent act of the defendant. The jury was properly instructed to this end and it was its function to consider the evidence as a whole to determine what damages were attributable to the fault of the defendant.

The testimony that the plaintiff’s preexisting arthritic condition was static prior to the accident was contradicted by other testimony from medical witnesses that the degenerative course of the condition was “irreversible.” The plaintiff’s subjective complaints of the effects of his back strain of August, 1968, given to Dr. Reiffel 9 months later were remarkably similar to the complaints reported by Dr. Bender in his history of December, 1966. In both instances the plaintiff felt a sharp, “snapping sensation” at the time of the incident, pain in the lower back, and a radiating numbness in the left leg. Dr. Reiffel’s deposition indicated that in his examination of September 9, 1964, only 4 months before the date of the automobile accident, he noticed the plaintiff’s lumbar muscles “were spastic, in a state of contraction . . . nature’s way of splintering the back to immobilize a painful back . . . .” Under the circumstances, we do not feel that the amount of damages awarded by the jury was against the manifest weight of the evidence nor does it appear that the jury was confused by the course of the trial. The award is within the range of the evidence. The jury was properly instructed and was not motivated by either passion or prejudice and we will not substitute our judgment for that of the jury.

The plaintiff also complains that it was improper to permit Dr. Parker Hardin to testify for the defense that he examined the plaintiff in September of 1963 in regard to injuries involving his ribs and chest since those injuries were completely unrelated to the present case. In his brief, the defendant attempts to justify Dr. Hardin’s testimony on the grounds that it was introduced to impeach the plaintiff and as evidence of injuries received in a prior accident. The record does not indicate that it was used for impeachment purposes although the plaintiff had stated in a pretrial deposition that he had not previously been injured. As evidence of a prior injury it was clearly inadmissible since no connection between the injuries suffered in September of 1963 and those of December of 1964 was established. Marut v. Costello, 34 Ill2d 125, 128, 214 NE2d 768. However, on cross-examination, Dr. Hardin stated that the plaintiff was not permanently disabled as a result of his injuries suffered in September of 1963, and we do not feel that the plaintiff was prejudiced by the admission of the testimony.

Finally, we consider the contention of the plaintiff that the jury was confused by the refusal of the trial court to permit Dr. Reiffel’s opinion that his injuries of August, 1963, would not inhibit his duties as a police officer to be read to the jury as part of his evidence deposition. Dr. Reiffel, it will be recalled, had examined the plaintiff for an injury to his back. Dr. Reiffel was asked “Do you know what his (the plaintiff’s) duties were as a policeman?” and he answered “Specifically, no, other than that of a policeman.” To a second question, he then answered that the plaintiff’s injuries would “not inhibit his doing his duties.” Since the witness had indicated a lack of knowledge of the plaintiff’s “duties,” we feel that the trial court was well within its judicial discretion in its exclusion of his opinion as to his ability to perform those duties.

We conclude that the verdict of the jury, when considered with the character of the evidence before it, was not palpably inadequate or against the manifest weight of the evidence. In addition, the record discloses that the plaintiff received a trial free of grave error and the judgment will therefore be affirmed.

Affirmed.

DAVIS and MORAN, JJ., concur.


text:
    Sears Bank and Trust Company, as Trustee Under Trust No. 120625, Plaintiff-Appellant, v. Village of Itasca, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 68-17. (Abstract of Decision.)
    Second Judicial District.
    October 28, 1968.
   Opinion by JUSTICE ABRAHAMS ON. Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    First Federal Savings and Loan Association of Chicago, a United States Corporation, Plaintiff-Appellee, v. American National Bank and Trust Company of Chicago, a National Banking Association, as Trustee Under Trust Agreement Dated 11/10/58, and Known as Trust No. 13969, Warren E. Avis, Alex Flicht, and Chicago Title and Trust Company, an Illinois Corporation, as Trustee Under Trust Deed Dated 10/15/64, and Recorded 10/21/64, as Document No. 19 280 552, Defendants, Alex Flicht, Defendant and Counter-plaintiff-Appellant.
    Gen. No. 51,149.
    First District, Fourth Division.
    October 9, 1968.

      Jesse Marcus, of Chicago, for appellant.
    Leo B. Blaber, Jr., Blaber, Kramer & Gillespie, of Chicago, for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order of the Circuit Court entered on November 29, 1965, which order decreed a foreclosure and sale of certain mortgaged premises and the chattels and personalty contained therein, and which at the same time denied the claims asserted in appellant’s amended counterclaim. However, in this appeal the appellant only questions the validity of the foreclosure decree in its application to the chattel mortgage, and further contends that the trial court erred in denying him the relief prayed for in his counterclaim.

The evidence presented in this case is clear and uncontroverted. The defendant, American National Bank and Trust Company of Chicago (hereafter referred to as the defendant bank), under Trust Agreement No. 13969, dated January 27, 1959, holds the legal title to certain real estate located at 58th Street and South Cicero Avenue in Chicago, Illinois, known as the Avis Motel, and to all the fixtures, machinery, equipment, furniture, goods and all other chattels, in addition to those specifically described in a list attached to the trust agreement, contained therein. Defendant Warren E. Avis is the owner of the beneficial interest of that trust.

On February 13, 1959, the defendant bank, acting in its capacity as trustee under the trust agreement with Avis, and not personally, made, executed and delivered to plaintiff its promissory note for $400,000, payable with interest, said principal and interest being payable in monthly installments; $3,903.50 due on March 30, 1959, and a like sum payable on the 30th day of each and every month thereafter until the note is fully paid on February 28, 1971. The note further provided that upon any default in the prescribed payments the whole unpaid balance would become immediately due and payable at the election of the appellee.

In order to secure its note the defendant bank delivered to appellee its trust deed to the real estate described in the beforementioned trust, and as further security delivered a chattel mortgage covering those chattels specifically described and listed, all the other chattels then on the premises, and all the chattels to be placed thereafter upon the said premises. Both the trust deed and the chattel mortgage were filed for record on February 20, 1959, in the office of the Recorder of Deeds of Cook County, Illinois. On April 9, 1964, the appellee filed with the same Recorder of Deeds an affidavit for extending its chattel mortgage.

On July 1, 1964, prior to the maturity of the note, the defendant bank stopped paying the principal and interest due and owing to the appellee under the terms of that promissory note, and thereafter no further payments were made. Subsequently, on October 13, 1964, defendantcounterplaintiff, Alex Flicht (hereafter referred to as the appellant), acquired title to the motel premises under a quitclaim deed and title to the chattels located therein under a bill of sale executed and delivered by Warren E. Avis. The bill of sale specifically described the chattels conveyed as being subject to the chattel mortgage filed for record by the appellee. The real and personal property was purchased by the appellant for $30,000, to be paid $5,000 in cash and the balance by a promissory note of $25,000, secured by a second trust deed on the premises.

On November 5, 1964, over four months after the defendant bank had defaulted on its promissory note, the appellee filed its complaint to foreclose on the trust deed and the chattel mortgage, and on the 13th of that month a receiver was appointed who took possession of the premises in question and the chattels therein. Appellant filed his answer, claiming that the appellee was not entitled to foreclose on 87 television sets then located on the premises. He then filed a counterclaim asking for affirmative relief in reference to those television sets; namely, that they be turned over to him as his property, and that the appellee pay him a fair rental value for their past use.

The cause was referred to a master in chancery, and while it was pending there the appellant appeared before the trial court on September 22, 1965, and asked leave to file an amended answer and counterclaim. The court referred the motion to the same master, who recommended that he be given leave to file the amendments to his pleadings. In his amended pleadings appellant stated that not only was he entitled to possession of the 87 television sets referred to in his original answer and counterclaim, but also to possession of all the other chattels located on the premises, and prayed for affirmative relief in that regard.

After considering all the evidence presented the master determined that under the law of Illinois the appellant was not entitled to the relief prayed for with respect to any of the chattels located on the premises in question. The appellant then filed objections to the master’s report which were allowed to stand as exceptions. On November 29, 1965, the trial court entered an order adopting the master’s recommendation and permitted the appellant to file his amended answer and counterclaim. The appellee, however, did not ask leave to file any additional pleadings. The court then overruled the exceptions to the master’s report and entered a decree of foreclosure on the trust deed and chattel mortgage. On December 16, 1965, the appellant filed his notice of appeal. Seven days later, on the 23rd, the appellee requested for the first time leave to file a reply and answer to appellant’s amended answer and counterclaim. The court granted appellee’s request on December 27,1965.

In this appeal the appellant sets forth two theories which he believes entitle him to the relief prayed for. First, he claims that the trial court had no jurisdiction to enter the order of December 27, allowing the appellee leave to file responsive pleadings to his amended pleadings after his notice of appeal had been filed on December 16, 1965, and that the trial court therefore erred in entering a decree of foreclosure of the chattel mortgage, since the case was not in issue in that his amended answer and counterclaim stood admitted without ever having been denied.

Also, the appellant asserts that the trial court erred in overruling his exceptions to and adopting the master’s report which held that his rights in the chattels located on the premises were inferior to those of the appellee. Specifically, the appellant claims to have rights superior to those of the appellee in all of the mortgaged chattels on the theory that since the appellee did not take possession of the chattels within a reasonable time after the defendant bank defaulted on its note, it thereby forfeited its prior lien on the chattels where the rights of a purchaser of those chattels for value — such as the appellant — have intervened. Disregarding the question of whether the appellee acted promptly, nevertheless the appellant claims that since the 87 television sets on the premises had not been described in the chattel mortgage, they were not included therein.

Section 76(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 76(2)) provides that “An appeal is perfected when the notice of appeal is filed in the lower court. After being perfected no appeal shall be dismissed without notice, and no step other than that by which the appeal is perfected is jurisdictional.” In other words, with the filing of notice of appeal the trial court was divested of its jurisdiction to enter the order permitting the filing of further pleadings. Lind v. Spannuth, 8 Ill App2d 442,131 NE2d 796.

The situation presented in the instant case is comparable to that in Butler v. Palm, 36 Ill App2d 351, 184 NE 2d 633. In that case the lower court allowed the plaintiff to file an amended complaint after the defendant had perfected his appeal. On review the court stated at page 366:

“This appeal was perfected on March 10, 1961, when the notice of appeal was filed in the trial court. (HI Rev Stats c 110, § 76.) When that is done the case proceeds in this court, not as a new case but as a continuation of the one that was pending in the trial court, and the jurisdiction of this court attaches when the notice of appeal was filed in the trial court and we have no jurisdiction to consider any proceeding of the lower court after notice of appeal was filed and served. The only questions which this court can consider on this appeal are those existing when the notice of appeal was filed.”

In the instant case the appellant filed his notice of appeal with the trial court on December 16, 1965; eleven days later, on the 27th of December, the trial court allowed the appellee leave to file a reply and answer to appellant’s amended answer and counterclaim and entered an order to that effect. Therefore, under the rules of law which we have discussed, the order of December 27, 1965, is void and without legal effect, since it was entered after the appellant had perfected his appeal and after the trial court had been divested of its jurisdiction in this regard. Consequently, the appellant’s amended answer and counterclaim stand unchallenged as pleaded.

Under sections 32 and 40 of the Civil Practice Act, a reply to the defendant’s answer is mandatory where a new matter by way of a defense is pleaded. Under the Act, if the plaintiff fails to so reply his failure constitutes an admission as to the truth of the new matter alleged. Schiff v. Schiff, 25 Ill App2d 157, 165 NE2d 713; Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 210 NE2d 614.

In the instant case the appellant presented new matter by way of a defense in both his original and amended answers. In his original answer he claimed that 87 television sets located on the subject premises were not mortgaged under the chattel mortgage in question since those chattels were not specifically described in that document. In his amended answer he further asserted that he was entitled to possession of all the chattels on the premises because the appellee had forfeited its lien on all the chattels by failing to take possession of them within a reasonable time after the defendant bank defaulted on its note. Under these circumstances the appellee, having failed to reply, ordinarily would be estopped to deny the truth of the allegations contained in the appellant’s answers. However, where the appellant — as in the instant case — introduces evidence in support of his allegations and proceeds in litigating the case as though his adversary’s responsive pleadings had been properly filed, and the issues created by his answer are fully litigated, then he waives any advantage he may have gained as a result of his adversary’s failure to plead. Not having raised the point of pleading before the trial court, the appellant here is now in no position to assert that the appellee admitted his allegations. Mooney v. Lloyd’s, London, 33 Ill2d 566, 213 NE2d 283; In re Estate of Marsh, 31 Ill App2d 101, 175 NE2d 633; Croy Mfg. Co. v. Marks, 62 Ill App2d 373, 210 NE2d 814.

While the failure to reply to an answer ordinarily amounts to an admission that the new matter alleged therein is true, it does not amount to an admission that such new matter constitutes a valid legal defense. Kratovil v. Thieda, 62 Ill App2d 234, 210 NE2d 819. Therefore, even if the appellee had been estopped to deny the appellant’s allegations, the appellant still would not be entitled to the relief prayed for since we conclude that he does not have a valid legal defense and that his interest in the subject chattels is subordinate to that of the appellee.

The appellant asserts in his original answer that since the 87 television sets were not specifically described in the chattel mortgage they were not mortgaged thereby. The rule of law applicable in resolving this question was succinctly set out in State Bank of Eureka v. Lynn L. Banta, Inc., 44 Ill App2d 325,194 NE2d 669. At page 328 the court stated:

“The rules applicable in determining the sufficiency of a description of property covered by a chattel mortgage are not so rigid as those applicable in determining the sufficiency of a description contained in a conveyance of real estate. 8 ILP 119, Chattel Mortgages § 42. It has been held that the description in a chattel mortgage should be sufficiently specific to afford third persons the means of identifying the chattels, and that generally a description is sufficient which contains enough information to enable third persons, aided by inquiries which the instrument itself suggests, to identify the property. Southern Surety Co. v. Peoples Bank, 332 Ill 362, 369, 163 NE 659; Melody v. Areola State Bank, 249 Ill App 85, 88.”

In the instant case the chattel mortgage specifically described certain chattels as being mortgaged, but also covered all those chattels then on the premises and those to be placed on the premises thereafter. This description contains sufficient information to have enabled the appellant, if he had inquired, to identify the 87 television sets as being mortgaged property. Consequently, the appellant’s first assertion is without merit.

The appellant further claims in his amended answer that where articles are included in a chattel mortgage and are purchased before a default, the purchaser gets good title to the chattels unless the mortgagee takes possession of them within a reasonable time after the default. Section 4 of the Chattel Mortgage Act (Ill Rev Stats 1957, c 95, § 4) is controlling on this point. That section provides in pertinent part:

“No mortgage, trust deed or conveyance of personal property having the effect of a mortgage or lien upon such property hereafter executed shall be valid as against the creditors of the mortgagor, subsequent purchasers, mortgagees, or lienors, even though admitted to record, as hereinafter provided, unless it shall be deposited for filing or recording in the office of the recorder of deeds of the proper county or counties within 20 days of the date of its execution. . . . any such chattel mortgage shall cease to be valid as against the existing or future creditors of the party making the same and as against subsequent purchasers, mortgagees or lienors in good faith and for value, upon the expiration of 90 days from maturi ty oí the entire debt or obligation or five years and 90 days from the receipt of such instrument for filing or recording, whichever is earlier, unless, prior to the time when any such chattel mortgage shall cease to be valid as aforesaid, there shall be filed or recorded in the office of the recorder of deeds of the county where the original mortgage is recorded or filed, an affidavit made by the mortgagee, or by the mortgagee’s agent or attorney on behalf of the mortgagee setting forth the names of mortgagor and mortgagee and the date of filing or recording of such mortgage, the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time when the same will become due by extension or otherwise. Such affidavit shall be recorded or filed by such recorder in the same manner as the mortgage to which it relates, and thereupon the validity of the mortgage as against such creditors and others as aforesaid shall be extended to a date 90 days from the maturity date specified in such affidavit, but not to exceed five years and 90 days from the date such affidavit is so filed or recorded, . . .”

Under the Act a valid chattel mortgage ceases to be valid 90 days after its stated maturity date or, as in the instant case, where the maturity date exceeds five years, after five years and 90 days from the date it was filed, unless an extension affidavit is filed. The appellant admits in his brief that the appellee’s chattel mortgage was properly filed and extended. Consequently, the validity of the appellee’s mortgage is not in issue, and his interest in the chattels described therein, pursuant to section 4, is superior to that of a subsequent purchaser for value. In any event, even if the mortgage had ceased to be valid, the appellee’s interest in the chattels, as a mortgagee, would only be inferior to that of a subsequent bona fide purchaser for value. Here the evidence clearly demonstrates that the appellant did not purchase in good faith. His bill of sale recited, and he was well aware of the fact, that the chattels conveyed to him were subject to the appellee’s chattel mortgage.

However, if the appellant could bring himself within it, there is one notable exception to this rule which would entitle him to the relief prayed for. It has often been held that a person purchasing chattels under a mortgage duly acknowledged and recorded before the mortgage matures, takes subject to the mortgage. But where a bona fide purchaser for value acquires his interest after maturity, then the mortgagee must take possession of the chattels within a reasonable time after default or forfeit his prior lien. As noted, however, this exception will not protect a person who purchased the chattels in good faith from the mortgagor before the debt had matured. In addressing itself to this question the court in Blake-Silkwood Motor Co. v. Spires, 245 Ill App 148,151, pointed out:

“Appellant overlooks the fact that the mortgage was duly recorded and that he became the purchaser before the maturity of the debt. He had constructive notice and, under the circumstances stated, cannot be heard to say that the mortgagor has lost any right, because it was not diligent in taking the property into possession. Arnold v. Stock, 81 Ill 408; Sondheimer v. Graeser, 172 Ill 297.”

See also State Bank of Eureka v. Lynn L. Banta, Inc., 44 Ill App2d 325, 329-330, 194 NE2d 669.

In the instant case, upon a default by the mortgagor the appellee, as mortgagee, under the terms of the promissory note, had an option to either declare the note due and payable and in effect accelerate its maturity date, or to simply wait and foreclose on the mortgage on its stated maturity date.

There is no obligation upon the appellee to declare a forfeiture at any particular time. Barbour v. White, 37 Ill 164; Blake-Silkwood Motor Co. v. Spires, supra.

The appellant in the instant case purchased the chattels from the mortgagor, Warren E. Avis, on October 16,1964. It was not until November 5, 1964, that the appellee exercised its option and declared the note to be immediately due and payable. Since, as mentioned previously, the appellant was not a bona fide purchaser and purchased the chattels from the mortgagor prior to the maturity date of his debt, he had both constructive and actual notice of the appellee’s chattel mortgage. Therefore, he does not come within the exception to the aforesaid rule and will not now be heard to say that he has lost any of his rights because of the appellee’s lack of diligence in repossessing the mortgaged chattels.

The appellee, having perfected its chattel mortgage covering all the property located on the subject premises at the time of the foreclosure, has rights superior to those of a subsequent purchaser for value under these circumstances, and is entitled to a foreclosure decree in his favor. The trial court also properly ruled that the appellant was not entitled to the relief prayed for in his counterclaim.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

       Ill Rev Stats 1963, c 110, § 32, in pertinent part: “If new matter by way of defense is pleaded in the answer, a reply shall be filed by the plaintiff, . . .”

       Ill Rev Stats 1963, c 110, §40(2): “Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his pleading that he has no knowledge thereof sufficient to form a belief, . . .”