author: MR. JUSTICE DEMPSEY

text:
    Fred L. Taylor and Ralph Rosenberger, Plaintiffs-Appellees, v. The Carborundum Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,330.
    First District, Third Division.
    February 20, 1969.
    Rehearing denied May 1,1969.

      Caryl P. Bonotto, John W. Kearns, Jr., and Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellant.
    Lawrence P. Hickey, Roger J. Boylan, and John J. Kennelly, of Chicago (Sidney Z. Karasik, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiffs, Fred Taylor and Ralph Rosenberger, were injured when a grinding wheel manufactured by the defendant, The Carborundum Company, shattered. They commenced separate actions against the defendant which were consolidated for trial. The jury returned a verdict in their favor and awarded Taylor $50,000 and Rosenberger $1,500 damages.

The defendant’s major contention is that it is entitled to an outright reversal because of the plaintiffs’ failure to prove certain elements necessary for recovery under a strict products liability theory. In the alternative, it points to alleged irregularities which occurred in the course of the trial and requests that the cause be reversed and remanded for a new trial because of them. The extent of the plaintiffs’ injuries and amount of damages awarded them are not questioned.

On the day of the accident, July 23, 1959, Taylor and Rosenberger were employed as ironworkers by the City of Chicago and were engaged in general repair work on a bridge over the Calumet Canal. Both were experienced ironworkers, having served several years in the trade. Shortly after lunch the plaintiffs assembled tools to be used in their work. Taylor withdrew a sledgehammer from a toolbox and sawed off a portion of its handle. This was done so that the hammer could be utilized in close-quarter situations. After the sawing, there remained a few rough edges on the handle which needed to be removed and Rosenberger suggested using a grinding machine for that purpose. Taylor picked up a nearby portable, pneumatic machine which had mounted on it an emery grinding wheel. The wheel, eight inches in diameter and about an inch thick, was made by Carborundum. Taylor ran the grinder for a few seconds to clear water condensation out of the air hose and noticed nothing unusual about the machine. It was running normally at its full speed, which was 4,500 revolutions a minute. He then placed the grinder on a keg for support and reactivated it. Rosenberger faced the side of the wheel with the hammer in his hands; before he could bring its handle into contact with the spinning wheel, or just after he had done so, the wheel came apart with such force that both men were knocked down.

Rosenberger was not seriously injured. Part of the wheel struck his leg; the impact forced him to the ground and he suffered a broken finger in the fall. Taylor was not as fortunate. Another part of the wheel tore into the upper calf of his left leg. The peroneal nerve was lacerated which has resulted in a complete and permanent paralysis of the anterior portion of his ankle and foot.

Shortly after the accident the plaintiffs’ foreman tested the grinding machine to see if it still functioned. He found that it did and that it operated properly. All of the wheel except its hub, which was held in place by a washer and nut, had separated from the machine. The foreman was able to locate only a portion of the wheel and he found this piece about forty feet from the site of the accident.

The original complaint was premised upon a breach of warranty theory. At the close of their case the plaintiffs were permitted to file an amended complaint containing two counts: strict liability and negligent failure to warn. The trial court did not err in allowing the amended complaint to be filed. See Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439 (1968).

In order to sustain a claim against a manufacturer under a strict liability theory a plaintiff must prove that his injury resulted from a condition of the product, that the condition was unreasonably dangerous and that it existed at the time it left the manufacturer’s control. Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965).

To prove the grinding wheel defective, the plaintiffs called as an expert witness a qualified chemist. The witness testified that he examined the piece of the wheel that had been recovered and subjected it to four tests— only one of which was significantly relevant to his ultimate opinion that the wheel was defective. This test was conducted by removing three fragments from divergent areas of the larger piece, weighing them, placing them separately into a container of water and measuring how much water was displaced. In this manner the density of each piece was ascertained and the average density computed. The fragments differed in density. One was more and two were less dense than the average. Based upon this test it was the opinion of the witness that there existed a causal relationship between the wheel’s falling apart and the variations in the wheel’s density.

The defendant objected to the competency of the witness in the trial court and repeats the objection in this court. It is the defendant’s position that the witness did not qualify as an expert and without his testimony there was a complete failure of proof that the grinding wheel was defective when it left the defendant’s control.

The test of competency for an expert is whether or not he exhibits sufficient knowledge of the subject matter to entitle his opinion to go to the jury. Piacentini v. Bonnefil, 69 Ill App2d 433, 217 NE2d 507 (1966). A trial court has broad discretion in determining if a witness has been qualified as an expert. Northern Illinois Gas Co. v. Wienrank, 66 Ill App2d 60, 213 NE2d 411, (1965). The witness was a chemist with many years experience in the testing of materials and had examined grinding wheels on prior occasions. He was offered as an expert only in the field of chemistry and his testimony on direct examination was limited to this area. It was not necessary, as the defendant claims, that the witness also possess expertise in the manufacture and use of grinding wheels. The trial court did not abuse its discretion in permitting the witness to testify and did not err in denying the defendant’s motion to strike his testimony.

In further support of its position that there was a failure to prove the wheel defective, the defendant has directed our attention to two product liability cases decided in favor of the defense: Shramek v. General Motors Corp., 69 Ill App2d 72, 216 NE2d 244 (1966) and Jakubowski v. Minnesota Mining and Mfg. Co., 42 NJ 177, 199 A2d 826 (1964). In each of these cases the allegedly defective product was unavailable at the trial and the plaintiff was unable to present direct evidence that a defect existed in the product when it left the manufacturer’s control. He was also unable to negate other possible causes of the product’s failure. The discussions in both opinions pointing to possible causes of the product failure other than a defect in manufacture were premised upon the absence of direct proof of a defect. Such is not the situation in the instant case where, by means of expert testimony, direct proof of a defect in the product was adduced with the reasonable inference left to be drawn by the jury that it came into existence at the time of manufacture. There was, therefore, sufficient evidence to allow the question of a defect to go to the jury, for a plaintiff is not required to prove his case beyond a reasonable doubt or disprove every theory supporting a cause of failure other than the one alleged. Foster v. Union Starch & Refining Co., 11 Ill App2d 346, 137 NE2d 499 (1965).

The defendant also argues that the plaintiffs failed to prove another element necessary for recovery: namely, that the wheel was used in the manner and for a purpose for which it had been designed and intended.

The plaintiff presented adequate proof that it was customary to use grinding wheels to smooth tool handles. Taylor, Rosenberger and two other ironworkers testified that it was customary and usual in their trade to use grinding wheels to remove rough edges from hammer and ax handles. There was no evidence to the contrary. The plaintiffs also presented proof that the disc was correctly mounted on the machine. Taylor testified that he had mounted similar Carborundum wheels and that there was nothing unusual about the wheel’s position on the machine. Additional proof was offered on this subject but it was objected to by the defendant. The plaintiffs called as a witness the ironworker who had placed the wheel on the machine but the defendant objected to his testifying because his name was not among the witnesses listed in the plaintiff’s answer to the defendant’s interrogatories. After a conference in chambers the witness was withdrawn.

The defendant argues that the plaintiffs were using an incorrect wheel on an antiquated machine. According to the defendant it was clearly shown that the plaintiffs used a vitrified wheel eight inches in diameter with a recommended maximum speed of 3,600 revolutions per minute (rpm) on a machine which operated at 4,600 rpm; that only vitrified wheels up to seven inches in diameter were supposed to be used on the machine and that the machine was twenty years old although its recommended life was only five years.

The evidence, however, was not as clear-cut on the above two points as the defendant maintains. First, as to the machine: the machine was not introduced into evidence; it had been transferred to other jobs and could not be located. The absence of the machine complicated the trial and the complication was aggravated by an observation made by the plaintiffs’ attorney in his opening statement. He told the jury that while the machine was not available, photographs of an identical machine would be presented. He was soon shown to be mistaken. His first witness, Taylor, looked at the pictures and said that the machine depicted was similar to, but not the same, as the one he and Roseriberger had used. He noted these differences: the machine in the photographs had no handle and the trigger was in a different location, and the wheel on the machine was cup-shaped — a wheel used for surface grinding where the grinding is done with the face of the wheel rather than the edge. Another witness pointed out an additional difference: the hub shaft on the depicted machine was round whereas the one on the machine used by the plaintiffs was square. The machine in the photograph was identified as an Ingersoll Rand, model 4K; the one used by the plaintiffs was also an Ingersoll Rand, but the model number was not known.

Despite these differences the defendant proceeded on the theory that the machines were the same. There was testimony that the instruction book for model 4K recommended that it be used with a six-inch cupped wheel. It was established that the speed of the 4K model was 4,600 rpm and that a label on the machine warned that it was not to be used with vitrified wheels more than seven inches in diameter. One witness for the defendant testified that if an eight-inch vitrified wheel with a recommended maximum speed of 3,600 rpm were used on the 4K model the wheel would rupture due to overspeed. Another witness, the Chicago branch manager of the Ingersoll Rand Company’s tool division, testified that the recommended life of a 4K model was five years, but that the one in the pictures was over twenty years old.

Since it was apparent that the machine used by the plaintiffs and the 4K machine in the pictures were not identical, the testimony as to the age and useful life of the 4K model was largely irrelevant. For the same reason, the testimony concerning the type and size of the wheel recommended for use on the 4K model was equally irrelevant. At best, under the evidence submitted, a jury question arose as to the weight to be given the conflicting theories.

Second, as to the wheel: according to the plaintiffs’ witnesses, the wheel which disintegrated was eight inches in diameter and rated at 4,500 rpm. They testified that this was the standard size and speed of wheels used on construction jobs. The job foreman testified that two weeks before the accident he requisitioned and received six such wheels. The general foreman of the ironworkers testified that one of his duties was to order grinding wheels for his men and that he had ordered 4,500 rpm wheels as long as he could remember. He recounted that at one time a box of fifty wheels was delivered but he had sent it back because the wheels were rated at 3,500 rpm. However, the same witness stated that a wheel, subsequently introduced into evidence by the defendant, was like those he ordered in 1959. This wheel was an eight-inch Carborundum wheel drawn from stock. A safety engineer for the Carborundum Company testified that the labels on both sides of the wheel were the same as those on wheels manufactured by it in the years 1957, 1958 and 1959. The label on the front bore the defendant’s name, gave the wheel’s dimensions, stated that its maximum speed was 3,600 rpm and called attention to another label on the reverse side. The second label contained detailed safety directions and stated that the wheel was to be used in conformity with the American Safety Code for the Use, Care and Protection of Abrasive Wheels and was to be visually inspected and sound-tested before being mounted.

On the other hand, the piece of the wheel found after the accident was introduced into evidence by the plaintiffs. Attached to it was an incomplete Carborundum front label. There was nothing on this label except the defendant’s name. However, this name was in a different location and the lettering was of a different color than on the wheel introduced by the defendant. Further, the defendant’s safety engineer testified that Carborundum made an eight-inch wheel suitable for use at 4,500 rpm and had been making such wheels for many years, including the nineteen fifties. This was corroborated by a mechanical engineer who testified for the defendant as an expert on the stresses and breakage of grinding wheels. He stated that in 1959 and prior thereto manufacturers of abrasive wheels (which would include Carborundum) made an eight-inch wheel suitable for use on a portable grinding machine that operated at 4,500 rpm. This same witness stated that grinding wheels have a safety factor built into them; that the safety factor of a wheel designed to operate at 3,600 rpm would be twice that number of revolutions — so that a wheel designed to operate at 3,600 should operate safely up to 7,200 rpm.

From the above evidence the jury could reasonably have concluded that the wheel introduced by the defendant was not of the same type as the one involved in the accident; that the latter wheel was rated at 4,500 rpm and was used on a machine which rotated at that speed. The jury could also have concluded that the wheel was similar to the one introduced by the defendant and was rated at 3,600 rpm but, because of the safety factor, the wheel should have been safe at a speed of 4,500 rpm and was thus still being used in a manner for which it was designed and intended. In either event, there was sufficient evidence to allow the question to go to the jury. Likewise, since there was testimony that labels often came off the wheels and that there was no label on the rear side of the piece of wheel involved in the accident, and since the rear label is the one containing the instructions on use and the reference to the Safety Code, it was for the jury to decide if the defendant was negligent in failing to warn.

The defendant’s final argument in support of its contention that a verdict should have been directed in its favor is that the plaintiffs were guilty of contributory negligence as a matter of law. The argument proceeds that the plaintiffs, as experienced workmen using tools of their trade, were negligent in not testing the grinder and the wheel before using them, in using a flat wheel on a machine designed for a cupped one, in using an eight-inch wheel instead of a seven-inch one, in using the wheel without a sufficient guard and in not standing aside as they started the wheel. Some of these points have been considered and the others are not relevant to a product liability case. There was no evidence that either plaintiff was aware of a defect in the wheel, that he used it in an unreasonable manner or that he used it for an unintended purpose. The defendant’s motions for a directed verdict and for judgment notwithstanding the verdict were properly denied.

The trial irregularities urged by the defendant as grounds for a new trial are: erroneous evidentiary rulings and improper remarks by the trial court, prejudicial comments and argument by counsel for the plaintiffs, and an incorrect instruction given at the request of the plaintiffs.

The first of the evidentiary rulings claimed to be erroneous was allowing the plaintiffs’ expert witness to testify. This subject has been previously discussed and decided adversely to the defendant. The next is restricting the cross-examination of the expert witness as to the contents of the Safety Code for abrasive wheels. The defendant cites Darling v. Charleston Community Hospital, 33 Ill2d 326, 211 NE2d 253 (1965) as authority for the proposition that it is permissible for an expert to be cross-examined on treatises or periodicals other than those with which he is familiar or that were considered by him in arriving at his opinion. The rule in Darling, however, is limited in its application to writings in the field where the witness has demonstrated his expertise. In the instant case the witness was offered as an expert only in chemistry and, admittedly, was not an expert in the use of grinding wheels. It was not improper, therefore, for the trial court to limit the cross-examination of the witness to his own specialty.

It is also claimed that the trial court erred in not allowing defense counsel to elicit testimony and introduce evidence relating to the use and parts of the Ingersoll Rand 4K grinder. As previously mentioned, this machine was depicted in the plaintiffs’ exhibits, but the unrebutted testimony showed that it was not the same machine in use at the time of the accident. Any inquiry into the use and parts of the grinder appearing in the pictures, therefore, would not have been relevant.

Nor did the trial court err in sustaining an objection to the defendant’s product safety engineer testifying as to the tests grinding wheels were subjected to at the defendant’s factory. In the decision adopting strict liability in this jurisdiction, Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), the court quoted with approval section 402A of the Restatement of Torts 2d, sub-section (2) of which is as follows:

“(2) The rule stated in subsection (1) [strict liability] applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product.”

In Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439 (1968) this court said: “A manufacturer can be most careful in making and testing his product, but . . . can be held accountable if a defect was ... in the product at the time it was made . . . .” It is evident from the foregoing that an inquiry into the general method of manufacture and testing of a product would serve no useful purpose in a strict liability action.

It is further urged that Taylor should not have been permitted to testify that the wheel was properly mounted. Taylor was an ironworker of many years’ experience. Although he had not placed this particular wheel on the grinder, he had mounted wheels many times in the past and it was not error to allow him to testify that there appeared nothing unusual about the disc’s position on the grinder.

The final contention pertaining to the evidentiary rulings is that the defendant should have been permitted to impeach the plaintiffs’ immediate supervisor with two statements he had made in a deposition. We have examined the so-called impeaching statements and find no essential inconsistency between them and the witness’s testimony at the trial. See Garrett v. S. N. Nielsen Co., 49 Ill App2d 422, 200 NE2d 81 (1964).

Complaint is made that the trial judge made improper remarks in the presence of the jury. The principal remarks criticized were in connection with the testimony of the plaintiffs’ expert witness. This witness was asked whether there was a causal relationship between the variations in density found in the wheel and its sudden disintegration. The defendant’s attorney objected on the grounds that the witness was unqualified as an expert and his examination of the piece of the wheel was not sufficient upon which to base an opinion. In overruling the objection, the court said: “No, I think he made a very good examination, and your objection is overruled.” Later, in sustaining an objection to the scope of the witness’s cross-examination, the court remarked: “Sorry, Counsel. I think the man has been a very able and competent witness . . . .”

The court’s comments invaded the province of the jury and could have influenced its appraisal of the witness and its evaluation of his testimony. However, the possible impact on the jury under the circumstances of this case must be considered minimal. If the jury had to choose between this witness and his testimony and another expert and his opposing testimony, the court’s complimentary references to the plaintiffs’ witness might have tipped the scales in his favor. But such was not the case. The result of the witness’s chemical examination of the wheel was uncontradicted; his testimony that the fragments he examined varied in density was undisputed; his conclusion that these variations could have caused the wheel to shatter was unrebutted.

Moreover, the Carborundum Company had the same opportunity to test the remaining piece of the wheel as did the plaintiffs. The plaintiffs’ attorney had delivered the piece, and the fragments examined by the expert, to the defendant’s attorney in 1961; he, in turn, sent them to Carborundum. When they were returned to the plaintiffs’ attorney they were not in the same condition: a pie-shaped segment had been cut from the larger piece and this segment was missing. The jury could have inferred from this that Carborundum had removed this segment for testing purposes. But no testimony contrary to the plaintiffs’ expert was presented. The defendant’s attorney attempted to explain in his argument to the jury and in his oral argument to this court why there was no such testimony. He said that the man who made the examinaiton for Carborundum had died. There was no evidence supporting this statement and upon objection at the trial it was withdrawn. Even if there had been an evidentiary foundation for the attorney’s explanation it would not have been satisfactory. The man referred to died in 1964. The trial was held in 1967. There could easily have been further examinations if Carborundum wished them, and the fact that it did not and presented no proof at all in refutation of the plaintiffs’ witness warranted the inference that it had no contrary findings. Under these circumstances, the remarks of the court, while improper, were not prejudicial.

We have examined the other complained-of remarks in their proper context and find them to be nonprejudicial. Wide latitude must be allowed the trial judge in conducting a trial. It is only where his conduct or remarks are of such a nature as would ordinarily create prejudice in the minds of the jurors that they constitute reversible error. Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379 (1965); Reske v. Klein, 33 Ill App2d 302, 179 NE2d 415 (1961).

The plaintiffs’ attorney made certain comments in his argument to the jury which the defendant claims had the effect of denying it a fair and impartial trial. In both his opening and closing statements counsel for the plaintiffs related that Taylor had received over $10,000 in benefits from the City of Chicago which would have to be repaid out of any sum recovered from the defendant. The statements were imprudent and should not have been made. However, on neither of the occasions when the subject was mentioned were objections interposed. The point is, therefore, deemed waived before this tribunal. Copeland v. Johnson, 63 Ill App2d 361, 211 NE 2d 387 (1965). With one exception, the other allegedly prejudicial comments complained of were not objected to and are likewise waived. The only comment properly preserved for appeal occurred near the termination of the closing argument when the plaintiffs’ attorney, referring to defense counsel’s argument, stated:

“Again, Ladies and Gentlemen, I feel . . . that your intelligence has been insulted. He has misrepresented every fragment of testimony about which he has just argued almost without exception. He depends on this dramatic appeal.”

At this juncture the defendant objected and the trial court warned the plaintiffs’ attorney that he was “going too far.” The admonition by the court and the fact that the argument did not digress thereafter, minimized any effect the improper comment may have had on the jury. The defendant suffered no prejudice which would require remandment and a new trial.

The defendant tendered an instruction which read:

“It was the duty of the plaintiff [sic], before and at the time of the occurrence, to use ordinary care for his own safety. That means it was the duty of the plaintiff to be free from contributory negligence.”

The plaintiffs objected to the last sentence and the trial court deleted it. The instruction is contained in section 10.03 of the Illinois Pattern Jury Instructions. The note accompanying this section states that:

“The last sentence of this instruction is to explain the relationship between the concepts of ‘ordinary care’ and ‘contributory negligence’ inasmuch as the latter term is frequently used by counsel in argument to the jury.”

The second sentence is merely explanatory of the first and the jury could not have been misled by its exclusion. Moreover, in this case — where the predominant theory was strict tort liability, not negligent failure to warn— an unqualified instruction that “it was the duty of the plaintiff to use ordinary care for his own safety” was beneficial rather than detrimental to the defendant.

The judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    Drexel Savings and Loan Association, a Corporation, Plaintiff-Appellee, v. Barbara McCall, Defendant-Appellant.
    Gen, Nos. 52,846, 53,013.
    First District, Third Division.
    February 20, 1969.
    Barnes & Grant, of Chicago (Arthur H. Grant, of counsel), for appellant.

      Cusack & Cusack, of Chicago (Robert E. Cusack and Robert Irmiger, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a judgment for possession, and for rent and damages entered against her.

The only issue before this court is whether the defendant was served with summons. A default and ex parte judgment was entered against the defendant together with an order that a writ of restitution issue on December 26, 1967. On January 18, 1968, the writ of restitution was executed and the defendant and her furnishings were removed from the premises. On January 19th, defendant served notice on plaintiff’s attorney that she would file a motion to vacate the default judgment on the grounds set forth in the petition. The hearing on the petition was set for Monday, January 22, 1968. The motion also contained a special and limited appearance of the defendant. The complaint in this case was filed on December 6, 1967, in which it was alleged that the plaintiff was entitled to possession of the premises named therein and also that the plaintiff was entitled to damages at the rate of $10 per day during the period occupied by the defendant after termination of the lease which expired on November 30, 1967. The complaint also alleged that there was due to the plaintiff from the defendant the sum of $230 for rent or damages for withholding possession of the premises from December 1, 1967, to December 23, 1967, after allowing defendant all just credits. The complaint further alleged that the plaintiff claimed possession of the property and $310 for rent or damages.

Summons was issued on December 6, 1967, and the return date was December 16, 1967. The summons was returned with a notation that it had been served on the defendant by delivering a copy thereof to her on Sunday, the 10th day of December, 1967.

In addition to the motion filed by the defendant, the defendant was given permission by the court to file 34 affidavits in support of her contention that she was not served with summons and that the court lacked jurisdiction.

The deputy sheriff testified that he served the defendant on the day indicated by the deputy’s return at 8023 Stewart Avenue, Apartment B. He further testified that he served the summons “After Twelve, afternoon. It was in the early evening.” There was some uncertainty on his part as to just when he allegedly served the summons. When asked to describe the defendant, the deputy sheriff said that she weighed approximately 130 pounds. He further testified that defendant’s back was in front of the light and that he was outside the house so that he couldn’t give any facial description, but he indicated that her height was a little over five feet.

The defendant testified that she had not been served with a summons in this case on that day, and that on that Sunday she had been at the Shiloh Baptist Church, 4840 South Dorchester Avenue. She arrived at church at 9:00 in the morning and remained in the church until about 10:00 or 10:30 p. m. that day. She further testified that she did not leave the church that day. It was her duty as church secretary to be there in the mornings to give out envelopes and to hand out church bulletins and to make sure that they are ready because she is the announcement clerk in the church. She further testified that she stayed in church all day and that on December 10,1967, she arrived home about 12:00 p. m. or 12:30 a. m. on December 11,1967.

Another witness, Lenora Bivins, stated that she was an official of the church and she knew the defendant. The witness further testified that she arrived at the church about 10:45 a. m. and that the defendant was at the church at that time and that she stayed there all day. She stated that she did not leave the church until approximately 10:00 p. m. in the evening and that she saw the defendant on and off all day long. However, she further testified that the defendant was not out of her sight during the entire day and evening. She testified that Barbara McCall, the defendant, had dinner between the hours of 2:00 or 3:00 p. m. in the church, and that between the hours of 5:00 and 6:00 the defendant broadcasted from the church.

Another witness, Sidney Jones, was called on behalf of the defendant. He testified that he also was a member of the Shiloh Baptist Church and had been a member for 16 years; that he is one of the officials and his position is deacon and superintendent of Sunday School. He had known Barbara McCall for about 7 or 8 years. On the Sunday in question, he saw Barbara McCall around 10:00 a. m. Shortly after 11:00 or between 11:00 and 12:00 she made the announcements and she remained at the church all day. The defendant has been secretary of the church for about three or four years.

The court was told that the minister of the church was on his way and was going to testify for the defendant. However, the court said “it doesn’t make any difference. It would be only cumulative.” The court then stated, among other things, that “we have some 34 affidavits, some of which are not pertinent. But there are at least five or six here who say that they saw her all day at the church.” The court further said, after correctly summing up the law, the following: “But in view of all those circumstances, and in view of these affidavits, I am inclined to give them a new trial here, provided they submit to the jurisdiction of this court by an appearance.”

The 34 affidavits filed in support of the motion to vacate the judgment on the ground that the court lacked jurisdiction were signed by members of the Shiloh Baptist Church who had seen the defendant at the church at various times of the day in question. The trial judge was correct in stating that many of these affidavits were not pertinent for the reason that those affidavits covered periods of time not in question. However, the trial court correctly stated that there were at least five or six affidavits of members of the church which stated that they saw her all day at the church.

Section 20 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 20) provides for the filing of a special appearance either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. Further provision is made therein that if the reasons for objection are not apparent from the papers on file in the case, the special appearance shall be supported by affidavit setting forth the reasons and that in ruling upon the objection, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact. Section 20 further provides that an error in ruling against the defendant on the objection is waived by the defendant’s taking part in further proceedings in the case unless the objection is on the ground that the defendant is not amenable to process issued by a court of this state. The defendant, having been satisfied that she had proven that she had not been served with summons, did not have to submit to the jurisdiction of the court by filing a general appearance as suggested by the trial judge and, had she filed such an appearance, her objection would have been waived.

The plaintiff cites Mandel v. Jackman, 16 Ill App2d 478, 148 NE2d 825, in which case it was held that a sheriff’s return on a summons is prima facie proof of service and can be overcome only by clear and convincing proof. In Marnik v. Cusack, 317 Ill 362, 364, 148 NE 42, the court said:

“The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence.”

We believe that the defendant in this case has proved by clear and satisfactory evidence that she had not been served with the summons in question, and that a contrary finding would, from our standpoint, be against the manifest weight of the evidence. The vague and seemingly uncertain testimony of the deputy sheriff, the uncontroverted and unimpeached testimony of the witnesses for the defendant together with the pertinent affidavits compel this conclusion. It is significant that the trial judge accepted the credibility of the defendant and her witnesses when he stated: “ . . . but in view of all those circumstances and in view of these affidavits, I am inclined to give them a new trial here . . . .”

We can readily understand how the conscientious trial judge, who was under constant pressure to dispose of cases, would have made the offer to vacate the judgment if the defendant would file a general appearance. However, the defendant would, of course, have waived her jurisdictional point had she accepted that offer. The judgment must be reversed and the cause remanded to the trial court with instructions to vacate the judgment and quash the service of summons upon the defendant Barbara McCall.

Reversed and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


author: SCHEINEMAN, J.

text:
    George Ketchmark, Leo Osborne, Jerry Capps and Harry Betzel, as Trustees and as Individual Taxpayers of the Village of Romeoville, an Illinois Municipal Corporation, Plaintiffs-Appellants, v. John D. Lynch, Neal Murphy, President of the Village of Romeoville, an Illinois Municipal Corporation, Mark Delay, Clerk of the Village of Romeoville, and Herbert Huls, Treasurer of the Village of Romeoville, Defendants-Appellees.
    Gen. No. 68-61.
    Third District.
    March 4, 1969.

      Scariano and Gubbins, of Chicago Heights, for appellants.
    Murphy, Timm and Lennon, of Joliet, for appellees.
   SCHEINEMAN, J.

This case involves the question of construction of the Municipal Code with respect to the right of a mayor or village president to vote on ordinances.

Prior to 1941 a mayor or the president of the village board had no right to vote except to break a tie. In 1941 the law was amended to enlarge the presiding officer's voting privileges. This caused certain unforeseen ambiguities in the Cities and Villages Statute. For example, does a reference to the members of a council or board of trustees include the mayor or president of the board ?

The ambiguities and inconsistencies presented a field for dispute between mayors and councils, and between boards of trustees and their presidents, of which the legislature became aware. Accordingly it created a commission to propose such revisions as seemed to be necessary. The commission presented its report to the 1961 Legislature, consisting of a Municipal Code together with annotations designed to acquaint the Legislature with the effect of the proposed changes. The new code was adopted in May of 1961 and is now in chapter 24 111 Rev Stats.

The numbered references in this opinion are to the section numbers of chapter 24. The revision commission’s notes of explanation are largely reported in Smith-Hurd Annotated Statutes as part of the notes to the altered sections.

By section 3-12-5 a village board of trustees is treated as similar to a city council, and its president is similar to the mayor of a city. Therefore, most of the references herein will be to the laws concerning mayors and aider-men, since the section above cited results in a village government being, for our purposes, the same as a city’s.

There is no dispute of fact. The Board of Trustees of Romeoville consisted of the president and six elected trustees, one of whom had resigned. On August 16,1967, an ordinance was presented abolishing the office of Village Attorney. Four trustees (plaintiffs-appellants) voted for it. One trustee and the Village President voted against it. On August 28 the Village President vetoed the ordinance by letter. On September 6 at a meeting of the Board, the letter was presented to them. A motion was made and seconded to override the veto, the same four trustees voted for the motion, and the other trustee and the president voted “no.” The president declared the veto stood. This suit was filed for a declaratory judgment, for injunctive relief and for mandamus. The trial court entered judgments for the defendants, and plaintiffs took this appeal.

Therefore, this suit presents an aftermath of the ambiguity that existed for 20 years, but which the revision was intended to resolve. It has reference to various phrases such as members of the city council or aldermen or corporate authorities. The mayor is certainly a corporate authority, hence in actions in which he has a vote, uniform usage in the Code is to specify the portion of the corporate authorities required to pass an ordinance. When the Legislature deems it desirable to exclude the mayor, such as in voting to override a veto, or to create or discontinue an office over which the mayor is given appointive power, it had to use some other word.

The commissioners believed they had solved the problem, which they explained in their note to 3-11-19 (passing over veto) reported in SHAS as follows:

“Old section 50 provides for the passage over the mayor’s veto by %rds ‘of all the members elected to the city council.’ We have eliminated the word ‘members’ and have substituted the word ‘aldermen.’ Our reason for doing this is that ‘members’ may be thought to include the mayor and thus run into the difficulty of interpretation that arose under old section 44. Our suggested wording makes it clear, we think, that the mayor is not entitled to vote on reconsideration where an ordinance, etc. has been passed over his veto.”

The sentence thus referred to in the law reads: “If, after such reconsideration, %rds of all the aldermen elected to the City Council shall agree to pass an ordinance, resolution or motion, notwithstanding the mayor’s refusal to approve it, then it shall be effective.”

This type of wording is also used in 3-7-1 concerning creation and discontinuance of appointive offices, and in 3-4-19, in both of which %rds of the aldermen must vote for an ordinance to make it effective. With equal consistency the word “trustees” is used instead of the board of trustees where the village president is excluded. See 3-12-5.

As an example of a change in wording to make it clearer that the mayor does have a vote, we refer to section 11-76-1 which provides for the sale of real estate no longer needed. Prior to the revision it required that an ordinance for this purpose be “passed by %ths of the members of the city council ... or the board of trustees of any such village.”

This ambiguous phrase which may or may not include a mayor, was replaced in the revision by the words: “passed by %ths of the corporate authorities of the city or village” . . . thereby giving the presiding officer a vote.

Thus it becomes apparent, when the Legislature adopted the recommendations of the Commission it used standardized phrases to express its will, in the attempt to avoid ambiguity as to whether or not the presiding officer had a vote. If he has no vote the reference is made uniformly to the elected aldermen or trustees, if he is entitled to vote the uniform reference is to the “corporate authorities,” which include the presiding officer.

The result in the trial court arose over the application of 3-11-14 which counsel were able to convince the trial court still had the old ambiguous terminology the Commission was supposed to avoid. This section reads:

“The mayor shall preside at all meetings of the city council. He shall not vote on any ordinance, resolution or motion except: (1) where the vote of the aldermen has resulted in a tie; or (2) where half of the aldermen elected have voted in favor of an ordinance, resolution or motion even though there is no tie vote; or (3) where a vote greater than a majority of the corporate authorities is required by this Code to adopt an ordinance, resolution or motion.”

The above section presents three classes of propositions in which the presiding officer is to vote: (1) to break a tie, which has always been the law. (2) The special situation which was presented in McLean v. City of East St. Louis, 222 Ill 510, 78 NE 815 (cited in the briefs as present law), and (3) when the ordinance voted upon concerns a provision of the Code requiring more than a majority vote of “the corporate authorities.”

Counsel apparently overlooked this comment in the notes, 3-11-14 wherein the Commission points out that the provision above referred to as Class (2) would have the effect of overriding McLean v. City of East St. Louis, above cited, so that upon adoption of this section that case ceased to be the law in that particular state of facts.

It is partly in reliance upon that case the appellees argue that four aldermen do not constitute a %rds majority because in their theory the mayor does have a vote, therefore there would have to be a total of five votes on the ordinance to constitute %rds of the whole.

The ordinance involved in this suit is enacted under 3-7-1 in which there is no reference to “corporate authorities.” It requires a %rds vote of all the aldermen elected, in the standardized phraseology as stated in the note to 3-11-14. The mayor has no vote on this type of ordinance under 3-7-1.

Appellees contend the ambiguities were retained in the law despite the revision, and “members of the council, aldermen, and corporate authorities are still used almost interchangeably,” citing 1-1-2 (8), which states that “when the words city council, alderman, commissioners or mayor occur, the provisions containing these words shall apply to the board of trustees, trustees and president, respectively, of villages and incorporated towns

We do not regard this definition as making the words in the two series interchangeable, but rather they equate words referring to city officials to the corresponding village officials, respectively. Thus, “board of trustees” is equated to “city council,” “trustees” to “aldermen,” and “president” to “mayor.”

When the drafting of legislation or other writings is done by a committee which also writes notes or comments explaining the intended purposes of the proposed draft, it is common practice for courts to refer to the Committee Notes when construing the wording referred to, since the thinking thus expressed is a valuable guide to legislative intent.

Appellees brief, in arguing that a mayor is included in the word “alderman” ignores the note to 3-11-19, previously cited, wherein it is explained that because of confusion under previous statutes, there is now substituted the word “alderman” because they thought this made it clear that the mayor did not have a vote. We do not feel that a court may SO' freely ignore the words in the annotations.

Accordingly we hold that the ordinance in question was properly adopted under 3-7-1 and the veto was properly overridden under 3-11-19.

Appellees also contend that a motion to reconsider was necessary before the vote to override the veto.

When the aldermen or trustees are again in session with a veto message before them, they are, necessarily, again considering the same ordinance. That is all the statute requires. It does not direct that there be a vote to reconsider. In Rogers v. City of Mendota, 200 Ill App 254, there was a motion to pass the ordinance over a veto, which carried. The Court held no separate motion to reconsider was required.

The appellees also questioned the validity of the ordinance because it contained this section: “This ordinance shall be in full force and effect immediately after its passage and approval as provided by law.”

This type of ordinance can take effect only “at the end of the current fiscal year.” (3-7-1) The then current fiscal year of Romeoville ended April 30, 1968. Any attempt to make the ordinance effective sooner is void.

In some cases the inclusion of a void provision will make the entire ordinance void. This rule applies where it is apparent that without the void part the ordinance becomes discriminatory or otherwise has some effect which obviously was not intended.

The rule does not apply to this case. The main purpose of the majority of the board was to discontinue the office of Village Attorney. The elimination of the void section does not defeat this main purpose, but merely defers its effect for about 8 months.

“The principal of invalidation of a whole ordinance has no application to an ordinance in which the improper matters can be clearly distinguished and separated from those properly embraced . . . the inclusion of matters distinctly beyond the competency of a municipality ought not to be treated as beclouding those as clearly within that competency . . . .” 37 Am Jur, Municipal Corporations, § 167.

The above text cites an Illinois case from early history of this State; however, a great many Illinois cases will be found digested in 24 Ill Digest, Municipal Corporations, 111 (4). Of the great many cases cited, by far the larger number find the ordinance attacked to be valid notwithstanding some section therein which was held void, as being unconstitutional or otherwise illegal.

One of the cases so digested concerned an ordinance that contained a provision making it effective upon its passage, which was contrary to the provisions of what was contended to be an applicable statute. The court does not decide whether that statute did apply, because it held that question was immaterial, since, if it did apply, this would invalidate no part of the ordinance except the provision as to the time of its taking effect. Illinois Cent. R. Co. v. People, 161 Ill 244, 43 NE 1107.

For the reasons stated, we hold that the ordinance is valid but did not go into effect prior to the end of the village’s fiscal year. The judgment and decrees entered in this cause are reversed and the cause remanded with directions to enter appropriate orders in accordance with this opinion.

Reversed and remanded.

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


author: SMITH, J.

text:
    The People of the State of Illinois Plaintiff-Appellee, v. Eliseo Gonzales Defendant-Appellant.
    Gen. No. 10,853.
    Fourth District.
    March 6, 1969.

      Joseph W. Maddox and Richard J. Cadagin, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Richard A. Hollis, First Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

A jury found the defendant guilty of murder and he was sentenced to the penitentiary for a term of not less than 40 nor more than 70 years. He prosecutes this appeal charging (1) that statements made to police officers were received into evidence without adequate proof that the defendant had been advised of his constitutional rights, (2) that a list of witnesses furnished the defendant five days prior to the trial precluded testimony of such witnesses at the trial, (3) that evidence showing that the defendant had been convicted of a misdemeanor was erroneously admitted, (4) that certain items of evidence and exhibits were received into evidence without connecting them with either the crime of the defendant or the deceased, (5) the cross-examination was unduly restricted, and (6) that the court’s instruction concerning the degree of proof required for circumstantial evidence was erroneous.

The death of Nellie Wells by means of multiple stab wounds took place in the late evening hours of October 18, 1965, or the early morning hours of the next day. On October 19, a warrant for the arrest of the defendant was issued. The interviews and the statements to which complaint is directed took place in April, 1966. Miranda v. State of Arizona, 384 US 436, 84 S Ct 1602, 16 L Ed2d 694, was decided June 13, 1966. The instant case went to trial on July 12, 1966. Thus, as announced in Johnson v. State of New Jersey, 384 US 719, 86 S Ct 1772, 16 L Ed2d 882, the format as to in-custody interrogation applies. The trial court suppressed many of the statements which had been reduced to writing, but permitted police officers to testify as to the statements after refreshing their recollection from the reading of the same. The order suppressing the statements was based on the fact that the State had not complied with a previous order of the court to deliver them to the defendant and was not based on Miranda. The trial court specifically held that the defendant had waived his constitutional rights within the meaning of Miranda.

The evidence is clear that the defendant was released from Illinois State Farm at Vandalia, Illinois, on October 18, had a ticket to Chicago, got off in Springfield near noon, checked his duffle bag at the bus station, and spent the afternoon and evening drinking and carousing. He left Springfield that evening with a man whose name he did not know, first heading toward Chicago and ultimately turning around and passing through Springfield and on into Missouri. The driver of this car was headed for San Francisco. At a stop in Missouri, this gentleman drove off and left the defendant. He called the highway patrol and they took him down to the bus station in Missouri where he slept on a bench all night and the following morning headed toward San Antonio, Texas. At Joplin, Missouri, he called his father and was in turn informed that he was wanted on a murder charge in Illinois. His father sent him $10. He then decided not to go back home and the record is silent from then on until we find him incarcerated in Baton Rouge, Louisiana. While in custody there, he told the sheriff that he “was wanted for murder in Springfield. They did not know ’til I told them.” As abstracted, the defendant stated, “I talked to Captain LaBlanc in Baton Rouge freely and voluntarily about what I did in Springfield on October 18, 1965. I told him about meeting three women in Springfield. I did not know at that time I was wanted for murder, but I knew I was wanted for suspicion of murder. I knew this when I called my father while I was in Missouri. I didn’t tell my father I was wanted, he already knew — he told me. He told me at this time that I was wanted for murder. I was told before by my mother. I called her.” Two police officers and an Assistant State’s Attorney went to Baton Rouge to return the prisoner. They first interviewed the prisoner on the evening of April 12. As abstracted, the Assistant State’s Attorney stated to the defendant, “At that time, I advised him that he had a right to remain silent and that any statement that he might make could be used against him, and that he had the right to consult with an attorney. He stated that he would like to have an attorney at his trial in Springfield, Illinois. I told him he would have an attorney at his trial in Springfield, Illinois, but the question now was did he want to consult an attorney in Baton Rouge before he talked to us. He replied that he did not want an attorney in Baton Rouge, Louisiana.”

The following morning substantially the same warnings were given to him. The defendant was asked whether or not the conversations could be taped and he responded in substance that they could, but that he would not sign anything.

During the trip back to Illinois, there was a discussion of the penalties for murder. They were explained by Mr. Olshefsky, and by the Assistant State’s Attorney and the defendant was permitted to read the sections of the statute relating to them. His own testimony indicates that he made the inquiries without response to any interrogation. In fact, he testified on the trial that an inmate in Baton Rouge told him Illinois had abolished the death penalty. Both murder, voluntary manslaughter and involuntary manslaughter were explained. He stated that he wanted to see the big boy in Springfield when he got there and that he might plead guilty to a manslaughter charge. Olshefsky told him that he once had a Mexican friend who was good with a knife and asked the defendant if he was good with a knife. Defendant testified, “I told him I was good, but had never cut anybody before.” Upon reaching Springfield, the Assistant State’s Attorney was called and stated, “You wanted to see me, you want to make a deal?” The defendant said, “That’s right, you’re the man. I want to reduce the crime from murder to manslaughter.” Prior to this conversation, the defendant was advised of his rights. He was advised that “he had a right to remain silent, had a right to have counsel, that if he were indigent, he had a right to have counsel appointed, and that anything he said could be used against him in a court of record.” The defendant responded by saying that he had already been advised of his rights. The State’s Attorney advised him that it would be impossible to reduce the charge unless he had committed a crime. Gonzales then stated that he would rather take a chance on manslaughter than gamble his life on murder. It should be further here observed that Gonzales insisted throughout that he had not cut anyone with a knife and that he did not kill Nellie Wells and did not hurt her in any way. Every police officer testifying testified to just that. The testimony throughout is remarkably free from contradictions, but with the usual semantical variations characteristic of human expression about a single event. Gonzales testified that he had been mistreated in Baton Rouge, but repeatedly stated that he had had no mistreatment from the police officers in Springfield. He did state that he was afraid, afraid of his record and afraid of his life on a murder charge.

En route from Baton Rouge to Springfield, the party stopped at a restaurant for lunch in Memphis, Tennessee. At the back of the restaurant there was a Negro dressed in a white uniform standing near some garbage cans. He asked the defendant, “What have they got you for?” The defendant replied, “What do you get for killing a man?” The Negro replied, but his statement was not understood by the officer, and the defendant then replied, “I didn’t do it.” At the same time he said “I didn’t do it” his face broke into a grin and he winked at the Negro. The defendant himself testified to this conversation as follows: “He asked me why they tagged me like that and I told him they picked me up for suspicion of murder. Mr. Blodgett (Assistant State’s Attorney) smiled and I smiled back at him and winked. I winked at Mr. Blodgett. I never told anyone that I killed Nellie Wells or that I had hurt Nellie Wells.” On April 15, they were preparing a lineup. The defendant was shown some articles of clothing at the sheriff’s office, the duffle bag and in particular a shoe with the name of Gonzales on it. He denied ever having seen the duffle bag or the shoe. As they were leaving and in response to no question, Gonzales turned to the officers and said, “I will give you some food for thought. When I get mad I’m like two people. Sometimes I don’t know what I’m doing. I may have done this thing and not known it.” The defendant did not recall these remarks.

Miranda does not judicially paralyze an accused’s vocal chords nor bar volunteered incriminating statements. It does not still the voice of conscience in a sinful soul seeking expiation. It does not compel a police officer to close his ears to self-incrimination by an accused unless the vocalization is the product of in-custody interrogation absent the Miranda warning. Gonzales’ own testimony that he freely and voluntarily told the Baton Rouge officers that he was wanted on “suspicion” of murder in Springfield negatived any thought that the principles of Miranda were violated in Baton Rouge. He told the Springfield officers and Assistant State’s Attorney that he did not want a lawyer in Baton Rouge. In Springfield, he was given the Miranda warning before the Assistant State’s Attorney would talk with him. On the record in this case, the protective cloak of Miranda is unavailing. He waived it in Baton Rouge; he was given it in Springfield; he still talked and made statements that placed him at the site of the murder and yet consistently and throughout he maintained that he had not harmed Nellie Wells. His packet of letters addressed to him at the Illinois State Penal Farm were found near her body in the alley. He told the officers and testified on the stand that he had had sexual intercourse with Nellie Wells in this same alley and awhile before had had sexual intercourse with another girl. From this record, we are satisfied that Miranda is unavailing to bar his statements.

Objection is made to the identification and admission of the packet of letters on the grounds that in this manner evidence of the prior conviction of a misdemeanor appears in the record to his prejudice. These letters were found near the body of Nellie Wells. Gonzales’ duffle bag and its contents found at the bus station in Springfield were identified by penal farm personnel. There was no evidence offered of any prior conviction. His residence at the Illinois State Farm at Vandalia, of course, does not come as a recommendation, but it is admissible to prove identity, People v. Walker, 34 Ill2d 23, 213 NE2d 552, and to show evidence directly related to the guilt of the defendant. People v. McDonald, 365 Ill 233, 6 NE2d 182. The duffle bag and the letters are circumstantial evidence of Gonzales’ presence in Springfield on the night of October 18, and are certainly circumstantial evidence of his presence in the alley where Nellie Wells was slain. There was no error in the admission either of the letters or of the duffle bag or of the testimony about them.

The indictment was returned in this case on May 3. On May 9, the court entered an order on the State to produce any statements reduced to writing and a list of witnesses to any oral statements within 15 days of the date of the order. The State did not comply with this order and on motion by the defendant any written statements were suppressed and denied admission into evidence, but the trial court did permit the police officers to examine the statements and to testify from them, but not to read from them. A list of some 62 witnesses was furnished the defendant and the last of these was not furnished until five days before the trial. It is the position of the defendant in this case that there was a deliberate attempt on the part of the State to conceal facts whenever possible and, when impossible, to release them only at the last moment, and that this conduct on the part of the State would necessarily prejudice the defendant and deprive him of a fair trial. The defendant contends that the State offended HI Rev Stats 1965, c 38, § 114-10, which in effect holds that in a criminal case on motion of the defendant the court shall order the State to furnish the defendant with a copy of any written confession and a list of the witnesses to its making or if there is an oral confession, a list of the witnesses to its making and no such confession shall be received in evidence where this statute has not been complied with. The court did suppress the statements and this evidence, but permitted the officers to read the statements and then testify as to what was said. This, the defendant contends, is accomplishing by indirection that which could not be accomplished directly. The difficulty with the defendant’s position is that none of the statements here are properly construed as confessions. Indeed the posture of the defendant throughout has been that he did not harm Nellie Wells. A confession has been defined as a voluntary acknowledgment of guilt after the perpetration of an offense and does not embrace mere statements or declarations of independent facts from which guilt may be inferred. On the other hand, an admission is any statement or conduct from which guilt of crime may be inferred but from which guilt does not necessarily follow. People v. Stanton, 16 Ill2d 459, 158 NE 2d 47; People v. Georgev, 38 Ill2d 165, 230 NE2d 851. Coupled with this objection is an objection that the court permitted witnesses to testify whose names were not furnished by the State to the defendant until five days before the trial. The record does not show an order pursuant to Ill Rev Stats 1965, c 38, § 114-9. There was no showing of surprise or prejudice on the part of the defendant nor was a motion for continuance filed. It is well established in this State that it is within the discretion of the trial court to allow a witness to testify even though his name is not on the list of witnesses furnished to the defendant and that the burden is on the defendant to show surprise or prejudice. People v. La Coco, 406 Ill 303, 94 NE2d 178; People v. Hopkins, 29 Ill2d 260, 194 NE2d 213. We do not agree that the charge laid at the door of the State’s Attorney is borne out by this record nor did it operate in any way to deprive this defendant of a fair trial. However, prompt compliance with proper pretrial procedures on the part of litigants would avoid the introduction of unnecessary collateral issues on appeal.

The defendant complains of the following instruction on circumstantial evidence:

“The Court instructs the jury that, while the jury must be convinced of the guilt of the defendant beyond a reasonable doubt from the evidence, the proof need not be the direct evidence of persons who saw the offense committed but may consist of circumstantial evidence.
“Circumstantial evidence in criminal cases is the proof of such facts and circumstances connected with or surrounding the commission of the crime charged as tend to show the guilt or innocence of the party charged, and if the facts and circumstances shown by the evidence in this case are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding the defendant guilty. The law demands a conviction wherever there is sufficient legal evidence to show the defendant’s guilt beyond a reasonable doubt, and circumstantial evidence is legal evidence.”

This instruction the defendant says is incorrect for the reason that it sets an improper standard or level of proof required for circumstantial evidence. It is contended that the proof required for conviction by circumstantial evidence must establish the guilt of an accused so conclusively that every reasonable hypothesis of his innocence is excluded. Actually neither the instruction given nor the statement of the defense is a correct statement of the law. The instruction here given has been specifically criticized by the Supreme Court in People v. Ciucci, 8 Ill2d 619, 187 NE2d 40. This instruction was given and the court indicated that the word “demand” is entirely too rigid and that the instruction would be more accurately framed by the word “authorizes” or “warrants” and that the definition of circumstantial evidence should have been qualified to the extent that such evidence must be “strong and convincing” in character. In that case, a murder case where the death sentence was imposed, the Supreme Court nevertheless held that it was not error to give the instruction. The Appellate Court in the Fifth District had occasion to consider the same instruction in People v. Harris, 66 Ill App2d 46, 213 NE2d 588, and came to a like conclusion. We do not deem the giving of this instruction in this case an error warranting reversal nor do we believe that the verdict of the jury would have been otherwise in this case. Taking all of the instructions together there can be little doubt but that the jury was told that defendant’s guilt must be established by the evidence beyond a reasonable doubt and was advised that a defendant is presumed innocent of the charge throughout the entire trial; that this presumption prevails throughout the trial and should be considered by the jury; and that a verdict of guilty should not be based upon mere probability, presumption, speculation or suspicion. We have also reviewed the other instructions at which criticism is directed and find the objections are without merit.

The defendant also has raised questions concerning the admissibility of certain exhibits and has complained that his cross-examination of certain witnesses was unduly restricted. We have carefully reviewed the record in these instances and are of the opinion that no error was committed. It would serve no useful purpose in this opinion to take each of the exhibits item by item as they all have a connection either with the physical aspects of the alley, of the body of the decedent, or otherwise. They all furnished some light upon issues involved in the case and there was no abuse of discretion either in the admission or rejection of exhibits or in the cross-examination of witnesses.

A waitress in the tavern and the co-manager testified that the defendant and the decedent were in the tavern sometime after midnight October 18, and were there about closing time; that they were drinking Falstaff beer; that they were fussing because of some remark that Nellie Wells had made about the defendant’s nationality, and testified they appeared to be angry. They left the tavern together and Nellie Wells had a partially filled Falstaff bottle in her hand. A partially filled Falstaff bottle was found near the body. A merchant testified that Gonzales purchased a knife the afternoon preceding this occurrence and identified Gonzales. Louise Miller testified that a knife was exhibited by Gonzales to her when they were out to lunch earlier in the evening and that they had a slight scuffle and she cut herself on the knife. Gonzales testified that he and his friend departed for Chicago somewhere around 10 or 11 o’clock. The other witnesses, including a taxi-driver, the co-manager, and a waitress testified that Nellie Wells and Gonzales were in the tavern at its closing time and were directed to leave. Sometime around 2 or 2:30 a neighbor lady heard a woman scream and looked out, but was not able to see anything. It is clear that the finger of suspicion pointed to Gonzales in this case and a warrant was issued the following morning for his arrest. The packet of letters was found near the body. The Falstaff bottle partially filled was found near the body. Death was a result of multiple stab wounds. When confronted with his own duffle bag and a shoe with the name “Gonzales” on it, Gonzales denied that he had ever seen it before. Yet on the witness stand during the trial he readily admitted that it belonged to him. One reviews this entire testimony and comes away with abiding conviction that the responsibility for the death of Nellie Wells rests with this defendant. He left Springfield and did not return for his duffle bag or stop off for it. After learning from his parents in Missouri that he was wanted on suspicion of murder, he kept on going. His conduct as related to the police officers, his statement basically that when he was angry, he was a Dr. Jekyll and Mr. Hyde, his statement that he was willing to plead guilty to a lesser crime because he was afraid of his life suggest that he well knew of the evidence the prosecution had against him. His volunteered statement in Louisiana that he was wanted in Springfield on suspicion of murder suggests a guilty conscience. We recognize from this record that there is no evidence that directly and unequivocally establishes the guilt of the defendant. The finger points directly to Gonzales as the one who was present at the scene, was possessed of a knife compatible with the type of wounds the body had, two witnesses who testified to an argument between the decedent and the defendant and circumstances from which a jury could reasonably believe the defendant’s guilt beyond a reasonable doubt.

Accordingly, we are of the opinion that the evidence in this record, though circumstantial-, establishes the guilt of the defendant beyond a reasonable doubt, and that he did have a fair trial. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert F. Milligan, Defendant-Appellant.
    Gen. No. 10,872.
    Fourth District.
    March 6, 1969.

      J. Waldo Ackerman, of Springfield, for appellant.

      Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

Robert F. Milligan was indicted for the crime of burglary. He was tried by jury, found guilty, and sentenced to two to eight years in the penitentiary.

Defendant-appellant assigns as error (1) the permitting of property to be admitted in evidence where the State failed to respond to a discovery motion and represented there was no such property; (2) admission into evidence of a statement of defendant allegedly made without defendant’s being admonished of his constitutional rights prior to making such statement; and (3) an instruction alleged to be erroneous. Defendant-appellant contends his sentence should be reduced under Supreme Court Rule 615 (111 Rev Stats 1967, c 110A, § 615).

Prior to trial, the public defender appointed to represent the indigent defendant filed a pretrial motion to require the State to furnish any oral or written confessions or admissions of defendant with the names and addresses of any witness to the same, an inventory of all instruments, articles and things seized by the State from the defendant, and a list of the names and addresses of all witnesses the State intended to call at the trial.

On the first day of the trial counsel for defendant called the court’s attention to the fact that no response had been made to this motion. The State’s Attorney informed the court that he had provided defendant with a list of witnesses who might be called to testify but that he knew of no admissions or confessions, oral or written, and of no articles seized from defendant that would be used in evidence, although the State intended to use a fingerprint of which defense had knowledge.

On the second morning of trial, after selection of the jury, the State’s Attorney informed the court he had some clothing — a shirt, a pair of trousers, a pair of shoes and a belt of the defendant worn on the date defendant was arrested. He stated that this clothing had been turned over by defendant to the Sangamon County Sheriff in return for jail clothing as is the practice. Outside the presence of the jury and prior to the presentation of evidence, defendant’s counsel objected to the introduction of this clothing into evidence.

At the trial the State introduced into evidence the checkered shirt and bluejeans of the defendant worn at the time of his arrest and turned over at the jail. Defendant-appellant contends that the admission of this evidence is reversible error, first, on the ground that the State did not list these items in response to the discovery motion, and second, on the ground that the seizure of this clothing without a search warrant denied him equal protection of the law.

There is nothing in the record in this case that leads us to conclude that defendant’s clothing in issue was “seized” within the meaning of the motion to inventory “all . . . things . . . seized . . . from the Defendant.” In the orderly management of the jail and the organized caretaking of those confined, it was the practice that clothing of inmates was exchanged for jail clothing and the personal clothing was then held by the sheriff’s deputies. The receipt and retention of the clothing here involved appears to have been in accord with the routine management of the jail. The routine of the jail incidental to the organized caretaking of all prisoners was not a denial of equal protection of the law.

The receipt and holding of possession of the clothing was not an illegal search as the clothes were at all times within plain view. Thus, it was held in People v. Brown, 89 Ill App2d 231, 231 NE2d 262 (2nd Dist 1967), that the removal of the shoes of an accused at a police station an hour or more after his arrest did not constitute an illegal search. In People v. Elmore, 28 Ill2d 263, 192 NE2d 219 (1963), the court stated at 265 (192 NE2d at 220): “ ‘A search implies a prying into hidden places for that which is concealed and it is not a search to observe that which is open to view.’ (citing cases)” and held that the removal from defendant’s car of an allegedly stolen razor which was on the ledge behind the back seat and visible through the windows was not an unreasonable seizure and did not involve a search.

We cannot fail to observe that the defendant knew that these articles of clothing were held by the authorities. We had occasion to consider a similar matter in People v. Tribbett, 90 Ill App2d 296, 232 NE2d 523 (4th Dist 1967), affd, 41 Ill2d 267, 242 NE2d 249 (1968), where defendant’s motion for pretrial inspection of physical evidence prior to trial was denied as to a gun found in defendant’s auto. There we held that tangible objects which the prosecution intends to offer should be subject to inspection, if requested, unless overriding considerations are present. However, foreknowledge by defendant of an object of which he is entirely cognizant and of its intended use would be of little assistance to him in preparing for trial. No conceivable surprise to the defendant or hampering of his preparation of his defense could have occurred by the failure of the State to list his clothing as things in possession of the State. Considering these factors, along with the fact that these were not articles “seized,” the failure of the State to list these articles in response to the pretrial motion was, at most, harmless error.

The second ground argued as reversible error is the admission into evidence of an oral statement of defendant related at the trial in the testimony of Sergeant Nunes Curie. This witness, a Lake Springfield Patrolman, answered the call of Roy Blanford, the owner of a recently purchased home in the Lake Springfield area. Blanford had not yet moved into his home, but upon checking it found certain rooms in disorder and disturbed. Blanford’s wife observed a man leaving the vicinity and informed Blanford. Blanford gave chase to the fleeing man, but upon losing him called police. The sergeant testified that he saw a man on a creek bed near the Lake Springfield dam, about one-half mile west of the Blanford home, who fit the description of the fleeing man as given by Blanford. The sergeant stated that he asked this man “what he was doing in that vicinity and he said he was just fooling around down there, said he liked to be around the dam and creek there. I asked him how long he had been there and he said since eleven o’clock in the morning and it was at that time eight-fifteen. So, I asked him if he had been up around the house up there and he said no. So, I said, ‘Well, we will go up there and see if the man can identify you.’ So, I put him in the car and took him up there.”

Defendant objects that at the time the sergeant questioned him concerning his actions and defendant answered, defendant was in police custody, that he was not apprised of his rights and that the answers he gave were not admissible under the doctrine of Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed2d 694, 10 ALR3d 974 (1966). The testimony of Sergeant Curie was that defendant had not been placed under arrest at the time of this conversation. Sergeant Curie had testified that he saw a man answering the description given him, got out of his car, stopped the man and inquired what he was doing. There is nothing in the testimony which indicated that defendant was in custody at the time of the remark of which he now complains. The sergeant stated defendant was not under arrest and thereafter got in the car of the sergeant and went with him to the home of Mr. and Mrs. Blanford. The Miranda decision, which was announced some two or three weeks prior to defendant’s arrest on July 15, 1966, prohibits the use of statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless procedural safeguards are used securing the privilege against self-incrimination. "Custodial interrogation,” as defined in Miranda, is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” In the state of the record here, the defendant was not in custody or deprived of his freedom of action when he made the statement here related. The fact that he had not been advised of his constitutional right to remain silent did not render this statement inadmissible under the doctrine of Miranda.

The State’s Attorney has stated that he knew of no admissions or confessions prior to trial and that only after the trial had commenced and the State was questioning Sergeant Curie did he know of the remarks of defendant which are in question. There is nothing in the record contradictory to this representation of the State’s Attorney. On the basis of such representation the testimony was not rendered inadmissible because of the pretrial discovery motion and the State’s oral answer in court that there were no oral or written confessions or admissions of defendant. Remarks made by defendant of an exculpatory nature, upon discovery during trial, are not rendered inadmissible because not disclosed in answer to a pretrial discovery motion.

The statement complained of could not have caused the jury to return a verdict contrary to all the other evidence. A review of the record reveals that there is sufficient evidence for the jury to have found defendant guilty beyond a reasonable doubt. Any error resulting from the recital of defendant’s remarks does not constitute reversible error.

The instruction complained of by defendant instructed the jury that intent and knowledge are material elements of the crime of burglary and must be proved beyond a reasonable doubt. It further instructed that if the jury find beyond a reasonable doubt that the defendant committed the crime and that he acted with knowledge or intent, the knowledge or intent required to make the case was proved. It was similar to the instructions given and approved in People v. Pavluk, 386 Ill 492, 54 NE2d 567 (1944). We find no reversible error in the giving of this instruction.

Finally, we find no proper ground presented for the reduction of defendant-appellant’s sentence. Defendant-appellant contends that the State offered to recommend a sentence of lesser extent than that pronounced by the court. No showing is made as to where, when, to whom or by whom such offer was made. In view of the evidence heard and considered by the trial court at the hearing in aggravation and mitigation, we find no ground for reduction of sentence in this court.

Finding no reversible error, the judgment is affirmed.

Judgment affirmed.

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


author: STOUDER, P. J.

text:
    Allen Ray Stevenson, et al., Plaintiffs-Appellants, v. Shane R. Maston, et al., Defendants-Appellees.
    Gen. No. 68-45.
    Third District.
    March 6, 1969.

      Frank J. Galvin, Jr., and Kenneth M. Collinson, of Rock Island, for appellant.
    Ira J. Melaas, Van der Kamp & Crampton, of Rock Island, for appellees.
   STOUDER, P. J.

Plaintiffs-Appellants, Allen Stevenson a minor, by his father as next friend and his father individually, brought this action in the Circuit Court of Rock Island County seeking damages for personal injury against Shane Mas-ton, Defendant-Appellee. The court directed verdicts in favor of defendant on the first two counts of the complaint based on malicious and wanton conduct. The third and fourth counts of the complaint based on negligence were submitted to the jury and resulted in verdicts of not guilty. Judgments were entered on the verdicts, post-trial motions of plaintiffs were denied, and the plaintiffs have appealed from such judgments.

On February 17, 1966, after school hours, Plaintiff, Allen Stevenson, Defendant Shane Maston and two companions went to the home of Shane Maston. Each of the four boys was eleven years of age and they were classmates in the sixth grade at the school which they attended. One of the purposes in going to Shane’s house was to look at his chemistry set. After the boys arrived at Shane’s house they went to the basement where the chemistry set was located. Shane’s parents were not at home. While the other boys were looking at the chemistry set, Shane went to another room in the basement to get a can of denatured alcohol. He had purchased the alcohol at a local drugstore the previous week for use with his chemistry set. Shane poured a quantity of the alcohol into an empty plastic bleach container. He then returned to the room where the other boys were looking at the chemistry set and placed the container containing the alcohol on the floor. He then tried, unsuccessfully, to ignite the alcohol in the container by throwing matches into the container. As he was doing so the other two boys became alarmed, left the room and watched from the stairs. Allen, however, walked over to the area where Shane and the container were located and was standing about one and a half feet from the container. The initial attempts to ignite the alcohol being unsuccessful, Shane ignited the balance of the book of matches and threw the book into the container at which time the alcohol did catch fire and flamed up about a foot above the container. As the flames were subsiding Shane drew back his foot, at the same time saying “here catch,” and his foot struck the container of still flaming alcohol causing it to slide across the floor where it bumped Allen’s foot, overturned and ignited Allen’s pants. The boys ran upstairs where Shane extinguished the burning clothing by smothering it with a rug.

It appears that the group of boys had on many occasions played a game similar to one known as “flinch.” This game involves conduct of surprise or threatening gesture designed to cause the other person to flinch in anticipation of something which does not happen. Shane testified that he did not intend to strike the container with his foot, that he intended only a gesture to induce Allen to flinch and that his foot struck the container accidently. Both Allen and Shane were familiar with the characteristics of denatured alcohol having used it in the performance of chemistry experiments.

As a result of the burns sustained by Allen, hospitalization and surgery were required, the special damages incident thereto being $1,800.

Plaintiffs assign as error first, the trial court improperly denied them leave to amend their complaint in order that it conform to the proof, second, that the trial court improperly directed verdicts on the counts based on malicious and wanton conduct and third, the court improperly denied their motion for a directed verdict on the issue of liability as well as their motions for judgment notwithstanding the verdict and for a new trial.

At the close of plaintiffs’ case, an initial conference on instructions was held. During this conference the trial judge observed that one of plaintiffs’ proposed instructions was based on willful and wanton conduct while the complaint alleged malicious and wanton conduct. Thereupon the plaintiffs orally moved to amend the complaint by substituting “willful” for “malicious” as alleged in the first two counts. The motion was denied and plaintiffs now claim such ruling was reversible error since the motion was made to conform the pleadings to the proof.

Chapter 110, section 46, Ill Rev Stats 1967, provides in substance that pleadings may be amended at anytime prior to final judgment. Granting or denying leave to amend is a matter within the discretion of the trial judge, and except where there is a clear or manifest abuse of that discretion, the decision of the trial judge will not be disturbed on appeal. Davidson v. Oliva, 18 Ill App2d 149, 151 NE2d 345. The liberal policy of permitting amendments to pleadings is in accord with the salutory principle that controversies ought to be settled on their merits in accord with the substantive rights of the parties. Before a trial judge can be deemed to have abused his discretion, the record must disclose that reasons or facts were presented to the trial judge as a basis for requesting the favorable exercise of the trial judge’s discretion. The materiality of the proposed amendments must either be apparent from the proceedings or made apparent to the trial judge by the party seeking the relief. McCartney v. McCartney, 8 Ill2d 494, 134 NE2d 789 and McLaughlin v. Pickerel, 381 Ill 574, 46 NE2d 368. Thus a trial judge cannot be said to have acted arbitrarily or abused his discretion with respect to matters not presented to him.

Plaintiffs amended their pleadings twice, the last amendments being about one week before trial. At the time they moved for permission to make the amendments, the ruling on which is now assigned as error, no claim was made that they were surprised or that some adverse ruling of the trial court affected any theory upon which they were basing their case. Nor did they suggest to the trial court that their evidence tended to support some theory other than that alleged in their complaint.

In this court, plaintiffs argue that “willful” requires a lesser degree of culpability than “malicious” and that therefore if permission had been granted to make the amendments the likelihood of the first two counts of their complaint being submitted to the jury would have been increased. We believe it is sufficient to say that this argument was not made to the trial court and the record fails to demonstrate that plaintiffs’ theory of the case was based on any such distinction or that they were deprived of the opportunity to present any theory tending to support their cause of action.

At the conference during which plaintiffs moved to amend their complaint, defendant moved for a directed verdict in his favor. The latter motion was taken under advisement by the trial court and when subsequently renewed, after presentation of defendant’s evidence, the motion for directed verdicts on the first two counts was granted. It is significant to note that when the trial court made its final determination on defendant’s motion for directed verdicts, plaintiffs made no suggestion that the evidence tended to support any other theory of recovery than that alleged in the complaint. We find no merit in the contention that the trial court abused its discretion by precluding plaintiffs from presenting any theory of liability supported by the evidence.

Plaintiffs next argue the trial court erred in directing a verdict in favor of the defendant on the first two counts of the complaint based on a “malicious and wanton assault.” Both parties agree that the Pedrick rule (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504) is applicable to the motion for directed verdict and requires a consideration of all the evidence including the reasonable inferences to be drawn therefrom in favor of plaintiffs.

It would also appear that the parties agree that “malicious conduct” requires an evil intent (In re Smyser, 182 Ill App 208) and that “wanton conduct” means an act consciously done with knowledge that injury will naturally result (Anderson v. Brown, 340 Ill App 613, 97 NE2d 495). The disagreement arises as to the application of the foregoing principles to the facts in the instant case.

Plaintiffs insist that the evidence warrants the reasonable inference that defendant’s conduct was deliberate. They rely both on the act itself, i. e., striking the container containing flaming alcohol by defendant’s foot, and defendant’s accompanying statement “here catch.”

We believe that such evidence is insufficient to support the conclusion that the conduct of defendant was deliberate. Although plaintiffs seek to infer that “here catch” thereby characterizes the quality of the conduct as deliberate, the term as so used has no such connotation in the uncontradicted context of the circumstances, namely, that of a game. There is nothing in the evidence from which it can be inferred that any ill will existed between the boys, that they were fighting or that defendant had any intention of either kicking the container or injuring plaintiffs. We believe the trial court committed no error in directing the verdicts on the first two counts of the complaint.

Lastly plaintiffs argue that the jury’s verdicts finding defendant not guilty on the negligence counts was against the manifest weight of the evidence. At the close of all the evidence, plaintiffs moved for a directed verdict on the issue of liability which was denied by the court. After the jury’s verdicts of not guilty and the entry of judgments thereon, plaintiffs moved for judgment notwithstanding the verdict and for a new trial both of which motions were denied.

No errors are assigned with respect to the admission or exclusion of evidence nor is any contention made that the jury was improperly instructed. Plaintiffs’ argument on appeal recognizes the Pedrick rule and consequently the principal question is whether or not the issue of negligence was properly submitted to the jury.

Although the plaintiffs discuss at some length the question of whether minors can or cannot be guilty of negligence or contributory negligence such issue was not an issue in the trial court.

It is conceded by the plaintiffs that the jury was properly instructed concerning the duties of minors and the factors to be considered in assessing their conduct. Restatement of Torts, § 283 (e), 2 Torts ALI741.

Plaintiffs also refer to the general rule that issues of negligence and contributory negligence are ordinarily resolved by the jury and the jury’s resolution of such issues will not be disturbed when based on sufficient evidence. Plaintiffs insist that the only reasonable inferences which may be drawn from the evidence are that defendant was negligent and plaintiffs were free from contributory negligence. Without redetailing the evidence, we believe the facts as heretofore discussed in the opinion rebut such assertion. On the contrary, conflicting inferences on these issues may be reasonably drawn from the evidence. Hence the jury’s resolution of such issues against plaintiffs is supported by the evidence.

For the foregoing reasons the judgments of the Circuit Court of Rock Island County are affirmed.

Judgments affirmed.

ALLOY and CULBERTSON, JJ., concur.