text:
    Nancy Navlyt, a Minor, Jo Ann Navlyt, a Minor, and Donald Navlyt, a Minor, by Mary Navlyt, Their Mother and Next Friend, and Mary Navlyt, Individually, Plaintiffs-Appellants, v. Paul T. Kalinich, Individually and d/b/a West Cook County Builders, Defendant-Appellee.
    Gen. No. 69-142.
    Second District.
    July 13,1970.

      James P. Chapman, of Chicago, for appellants.
    John W. Gilligan and Robert L. Williams, of Chicago, for appellee.
   MR. JUSTICE SEIDENFELD

Plaintiffs appeal from a final judgment dismissing a complaint brought under the Illinois Structural Work Act (Ill Rev Stats 1967, c 48, §§ 60, 69).

The narrowly defined issue is whether the decedent, killed by the collapse of a trench, in which he was installing sewer tiles in connection with town house units under construction by defendant, was working on or about a “house, building ... or other structure” within the meaning of the act.

It is conceded that no “scaffold, hoist, crane, stay, ladder, support, or other mechanical contrivance” as described in section 60, was provided.

The decedent was standing on the earth bottom of the trench, which was 10 to 12 feet deep, and was in the process of installing sewer tile, when a portion of the wall of the trench collapsed upon him.

Plaintiffs urge that the Structural Work Act is to be liberally construed to effectuate its broad purpose of providing workmen in extrahazardous operations with a safe place to work; and that the concept of a “structure,” as that term is used in the act and as liberally construed, embraces the sewer system on which the plaintiff was working, either by itself or considered as an integral part of the buildings being erected on the site.

Defendant argues that a trench excavation is not a “structure” within the act and, therefore, the court properly found that no cause of action had been stated.

The tendency of courts to provide a liberal construction of the Structural Work Act to attain the purpose of providing workmen in extrahazardous operations with a safe place to work is clearly indicated by the cases. See Louis v. Barenfanger, 39 Ill2d 445, 448, 236 NE2d 724 (1968); Burgh v. Crane Const. Co., Inc., 102 Ill App2d 188, 193, 243 NE2d 590 (1968).

Under the particular facts before us, this appears to be a case of first impression in Hlinois. In the great majority of the Hlinois cases which have been cited under the Structural Work Act, whether a workman has been injured while employed on a structure has not been an issue. A substantial number of the cases involve falls from a place which is intended to support a worker while performing his duties, and deal with the definition of scaffolds rather than structures. (E. g., Louis v. Barenfanger, supra, and cases cited therein at pages 449, 450.) More relevant is the holding that shoring or supports involved in construction work which are inadequate to protect a workman from the results of an overhead collapse may bring a case within the act. See Miller v. DeWitt, 59 Ill App2d 38, 127, 208 NE2d 249 (1965) (affirmed in 37 Ill2d 273, 226 NE2d 630 (1967)).

Defendant has principally relied upon Bradley v. Metropolitan Sanitary Dist. of Greater Chicago, 56 Ill App 2d 482, 206 NE2d 276 (1965) to support the position that the decedent was not working on a structure within the act. In Bradley, a workman, while using an air spade to excavate for a drop manhole, was killed as the result of a cave-in in the excavation. The court recognized that the act included a purpose “to protect persons working on scaffolds as well as those passing under them . . (page 485), to prevent the falling of material, but concluded that (page 487):

“However, we find that the Structural Work Act does not ‘require’ supports or stays to be used in excavation work as claimed by plaintiffs; that a drop manhole is not a ‘structure’ within the Act; and that the accident was not caused by the insufficiency of a ‘scaffold, support or stay* because none was used.”

That portion of the rationale of the Bradley opinion that scaffolding or supports are not required under the Structural Work Act, but only if they are used must they be safe, appears to have been rejected by the majority opinion in Louis v. Barenfanger, supra, in its holding (page 449):

“. . . that the failure to provide scaffolding can be the basis of a cause of action under the Structural Work Act.”

We do not feel that we are compelled to decide the instant case upon a question whether the ditch or excavation which collapsed was itself a “structure.” The plaintiffs’ decedent was working upon a sewer system which we clearly conceive to be a “structure” under the Structural Work Act either considered by itself or as an integral part of the buildings being erected on a construction site.

The title of the Structural Work Act in itself indicates that the protection of the act is not limited to work directly upon a building or structure:

“An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof.” (Emphasis added.)

In Grafton v. Lester B. Knight & Associates, 114 Ill App2d 52, 57, 252 NE2d 383 (1969), the court held that the Structural Work Act applied to the construction site upon which a tractor and boom were being used to move steel from a storage yard to the construction area.

We recognize limitations in importing definitions from other statutes, since the context in which a term is used obviously bears on its intended meaning. However, in the context of a liberal construction universally given to the Structural Work Act, we do not conceive that the word “structure” was intended to have less than its commonly accepted broad meaning. In Brown v. City of Decatur, 188 Ill App 147, 151 (1914), the maintaining of water mains in connection with a waterworks plant has been held to be the maintenance of a “structure” under the Illinois Workmen’s Compensation Act (defining a “structure” as “anything that is built or constructed”). In Armenti v. Brooklyn Union Gas Co., 157 App Div 276, 142 NYS 420, 425 (1913), under a statute similar at the time to the present Illinois Structural Work Act, a plaintiff, working on a concrete sewer located beneath the surface of the street, and injured when the sheathing, shoring and bracing used to hold back the earth gave way, was held to be covered by the act. The trial court below differentiated the Armenti case from the instant case because of the size of the particular sewer structure, but we do not deem that the size of a system is a relevant criterion for the classification of what is a structure. See also Stevens v. Stanton Const. Co., 153 App Div 82, 137 NYS 1024, 1025-6 (1912).

The trial court in a memorandum opinion filed with the record carefully reviewed the cases and concluded :

“While it may be true that the absence of a scaffold may bring one under the Structural Work Act, there are no cases which have broadened this Act to include the shoring up of an excavation. ... I find no case that holds that a normal or ordinary sewer installation of the kind here, that requires shoring.”

We believe that this conclusion is not properly addressed to the sufficiency of the complaint, but rather to an evidentiary issue. It becomes a question of fact whether defendant should have caused the devices set forth in the act to be used to guard against the danger to which decedent was exposed while working in or about a structure.

The Structural Work Act does not define what shall constitute a safe “support,” and the question of whether the absence of some type of lateral support made for an unsafe condition which was the proximate cause of the worker’s injury is properly left for the determination of the court or jury. Walden v. Schillmoeller & Krofl Co., 111 Ill App2d 95, 100, 248 NE2d 547 (1969). See also Schultz v. Henry Ericsson Co., 264 Ill 156, 164, 106 NE2d 236 (1914).

We, therefore, reverse and remand for further proceedings in accordance with this opinion.

Reversed and remanded.

ABRAHAMSON and MORAN, JJ., concur.

       The provisions of the act particularly relied upon include:
      Section 60 (Ill Rev Stats 1967, c 48, § 60):
      “That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon. . . .”
      Section 69 (Ill Rev Stats 1967, c 48, § 69):
      “Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof, . . . .”

       Here, supports under section 60, supra.

       The complaint here stated, among other allegations, that defendant failed to comply with the provisions of the Structural Work Act in that he willfully “failed to provide or erect safe, suitable, and proper stays, supports, shoring, or other mechanical contrivances in the subject trench.”


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Wick, Defendant-Appellant.
    Gen. No. 69-177. (Abstract of Decision.)
    Second District.
    July 2,1970.
    Rehearing denied August 7,1970.
    William G. Rosing, of Waukegan, for appellant; Jack Hoogasian, State’s Attorney of Lake County, of Waukegan, and Kenneth M. Clark, of Waukegan, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Nelda J. Goble, Plaintiff-Appellee, v. Central Security Mutual Insurance Co., Defendant-Appellant.
    Gen. No. 69-218.
    Second District.
    July 13,1970.

      Milton O. Gordon, of Rolling Meadows, for appellant.
    Popejoy, Nelson, Lucas and Speer, of Wheaton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the defendant from a judgment confirming an arbitrator’s award to the plaintiff in the sum of $7,500, under the provisions of the uninsured motorist clause in her insurance policy with the defendant. The trial court also awarded the plaintiff a judgment in the sum of $500 as attorneys’ fees, pursuant to the provisions of section 155(b) of the Illinois Insurance Code (Ill Rev Stats 1969, c 73, par 767 (b)).

The defendant contends that the trial court erred in entering the judgment because the arbitrator’s award was made more than thirty days after submission of briefs and proof, contrary to the policy provisions that the arbitration proceedings shall be held under the Accident Claim Tribunal Rules of the American Arbitration Association. The defendant further urges that the trial court erred in awarding attorneys’ fees in that the refusal of the defendant to pay the plaintiff was not vexatious and without reasonable cause.

In 1967, the plaintiff was involved in an automobile accident with an uninsured motorist. The plaintiff was insured by the defendant, and the policy of insurance contained an uninsured motorist coverage clause which provided for arbitration of any disputes thereunder in accordance with the rules of the American Arbitration Association, and further provided that the insured and the company would be bound by any award of the arbitrator. Section 32 of the Accident Claims Tribunal Rules of the American Arbitration Association provided:

“D. Arbitrator shall render his Award promptly and, unless otherwise agreed by the parties, or specified by law, not later than thirty days from the date of the close of the hearing, or if oral hearings have been waived, from the date of transmitting of the final statements and proofs to the Arbitrator.”

The proofs before the arbitrator were closed on February 3, 1969. The award was entered by the arbitrator on March 10, 1969, which was more than thirty days after the closing of proofs.

Section 8(b) of the Uniform Arbitration Act (Ill Rev Stats 1969, c 10, par 108 (b)) provides:

“An award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on application of a party. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.”

It is conceded by the defendant that it made no objection prior to the delivery of the award to it. The issue before this court thus is whether the language of the statute, relating to waiver, is binding upon the defendant in view of the provisions of the insurance contract.

The defendant contends that the language of the insured’s contract clearly provides that arbitration is to be in accordance with the rules of the American Arbitration Association, and that it is the duty of this court to enforce the contract as written and not to make a new contract for the parties. We have no quarrel with the contention of the defendant in regard to the general rules governing the construction of contracts and the interpretation of insurance contracts in particular. However, the defendant’s contention, as framed, begs the question and does not meet the issue of the effect and relationship of the statutes with reference to the insurance agreement.

It is well settled in this State that the law existing at the time and place of the making of a contract is deemed a part of that contract, to the same extent as though expressly referred to or incorporated in the contract. Schiro v. W. E. Gould & Co., 18 Ill2d 538, 544, 165 NE2d 286 (1960). In Schiro, at page 544, the court answered the challenge raised by the defendant in this case, and stated that the rationale for this basic rule is that the parties to the contract would have expressed that which the law expressly provides had they not supposed that it was unnecessary to do so. Thus, the court in construing the existing law as a part of the express contract, is not reading into it provisions which are different from those expressed and intended by the parties; it is merely construing the contract in accordance with their intent. The law of the State that is referred to is the law as expressed in the constitution, statutes, codes, ordinances and court decisions. Schiro v. W. E. Gould & Co., supra, 545; Illinois Bankers Life Ass’n v. Collins, 341 Ill 548, 551, 552,173 NE 465 (1930).

The application of this rule is more apparent in this than in most cases. Prior to the adoption of the Uniform Arbitration Act in 1961, Illinois followed the common-law rule that parties could not by agreement bind themselves to arbitrate future disputes or controversies; and that such an agreement was contrary to the public policy of the State. Cocalis v. Nazlides, 308 Ill 152, 156, 157, 139 NE 95 (1923); Ramonas v. Kerelis, 102 Ill App 2d 262, 269, 243 NE2d 711 (1968); School Disk No. 46, Kane, Cook and DuPage Counties v. Del Bianco, 68 Ill App2d 145, 153, 215 NE2d 25 (1966). The statute gave viability to the agreement to arbitrate future as well as existing disputes.

Our courts uniformly have followed the principle set forth in Schiro in its application to the Uniform Arbitration Act, and have held that insofar as the interpretation or construction of arbitration agreements are concerned, they are subject to the same rules which apply to all other contracts, and the statutory law is deemed a part of the contract, the same as though expressly incorporated therein. Ramonas v. Kerelis, supra, 270; Flood v. Country Hut. Ins. Co., 89 Ill App2d 358, 361, 232 NE2d 32 (1968), revd other grounds, 41 Ill2d 91, 242 NE2d 149 (1968); School Dist. No. 46, Kane, Cook and DuPage Counties v. Del Bianco, supra, 157.

Section 8(b) of the Uniform Arbitration Act in no way conflicts with the agreement as written between the parties. It is compatible with, and expands upon, the written agreement. The statute provides that an award shall be made within the time fixed therefor by the agreement, if so provided in the agreement. The agreement did so provide by stating that the award is to be made in conformity with the rules of the American Arbitration Association, which provide for the award within thirty days. These rules, however, make no provision for the effect of the failure to object to the award not having been made in time. Clearly, a party may waive the defect (Fagnani v. Integrity Finance Corp., 53 Del 193, 207, 167 A2d 67 (1960); 5 Am Jur2d, Arbitration and Award, § 129, p 615; Domke, Commercial Arbitration, 1968 Ed, § 29-01, p 281), and it is the purpose of the statute to clearly set forth what will constitute a waiver. The objective of the statute is obvious; a party should not be permitted the luxury of waiting to see whether the arbitrator rules in his favor, and then, if not, claim that the award was invalid in that it was not made in time. Such conduct presents a classic example of waiver. In re American Arbitration Ass’n, 109 Ill App2d 370, 382, 248 NE2d 756 (1969).

The statute clearly is applicable to the contract of the parties. The defendant did not make its objection prior to the delivery of the award and after delivery it may not be heard to complain that the award was not made within the prescribed period of time.

The trial court awarded attorneys’ fees, in the sum of $500, under the Insurance Code on the ground that the refusal of the defendant to honor the arbitrator’s award and to pay the plaintiff was vexatious and without reasonable cause. (Ill Rev Stats 1969, c 73, par 767.) We believe that the trial court properly allowed such fees. ■ Our courts have uniformly held that the laws in existence at the time a contract is made, and in particular, the Uniform Arbitration Act, are a part of every contract made thereunder. The language and meaning of the Arbitration Act, providing that a party waives the objection to an award not being made in time unless he notifies the arbitrator of his objection prior to the delivery of the award, is unambiguous. There was absolutely no conflicting clause in the insurance agreement, or the rules for arbitration, to which the agreement referred. We do not believe that there was a reasonable question of interpretation of the contract under these facts. Consequently, the award of fees was proper.

The plaintiff has petitioned this court to allow additional reasonable attorneys’ fees by reason of the appeal. The petition has included the additional time and efforts necessary to the appeal.

Paragraph 767(b) of the Insurance Code provides that the attorneys’ fees may not exceed $1,000. The trial court awarded fees for the trial of the case before that court. The plaintiff’s petition, setting forth the work done and the time spent in handling this case subsequent to the award of fees by the trial court, would warrant additional reasonable attorneys’ fees in excess of $500. Under our view of the case, the plaintiff is entitled to attorneys’ fees under paragraph 767(b) of the Insurance Code, and has established to this court his right to the remainder of the maximum permitted him under the statute. Under Supreme Court Rule 366 (Ill Rev Stats 1969, c 110A, par 366(a) (5)) this court may, in its discretion, make any further order and grant any relief which the case may require.

Accordingly, the judgment of the trial court is affirmed and further judgment for fees is entered herein in favor of Nelda J. Goble, plaintiff, and against Central Security Mutual Insurance Co., defendant, in the sum of $500, and execution may issue thereon.

Judgment affirmed. Further judgment in favor of the plaintiff and against the defendant in the sum of $500.

MORAN and SEIDENFELD, JJ., concur.


text:
    First National Bank and Trust Co. of Pekin, Plaintiff-Appellee, v. Glenn Van Hilsen and Harold Van Hilsen, Defendants-Appellants.
    Gen. No. 69-111. (Abstract of Decision.)
    Third District.
    July 9,1970.
    Rehearing denied August 5,1970.
    Paul J. Knapp, of Lincoln, for appellants; E. B. Groen, of Pekin, for appellee.
   Opinion by JUSTICE STOUDER. Not to be published in full.


author: CRAVEN, P. J.,

text:
    Audrey A. Freehill, Individually and as Executor of the Will of Emmett J. Freehill, Deceased, Plaintiff-Appellee, v. De Witt County Service Company, a Corporation, and Duane L. Jackson, Defendants, De Witt County Service Company, a Corporation, Defendant-Appellant.
    Gen. No. 11,189.
    Fourth District.
    July 13,1970.
    Rehearing denied August 18,1970.

      Dunn, Dunn, Brady, Goebel, Ulbrieh and Hayes, of Bloomington, for appellant.
    Herrick, Rudasill and Moss, of Clinton (Ray Moss, of counsel), for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This is an appeal from a judgment of $26,000 entered on a jury verdict in favor of Audrey A. Freehill as executor of the estate of Emmett J. Freehill, deceased, her husband, for his wrongful death, and in favor of Audrey A. Freehill, individually, for funeral care of her husband under the Family Expense Act (Ill Rev Stats 1967, c 68, § 15).

Plaintiff’s husband was driving a pickup truck in an easterly direction on Route 54 approximately three miles west of Clinton when a collision occurred between his truck and a fertilizer-spreader of defendant, De Witt County Service Company, being towed in a westerly direction on such highway behind a one-ton International flatbed truck of that company driven by its employee, Duane Jackson.

Plaintiff claimed that defendant was guilty of negligence in failing to equip the trailer (spreader) with safety chains and in failing to securely hitch the trailer (spreader). Initially, both Jackson, the driver of the truck to which the spreader was hitched, and the owner, De Witt County Service Company, a corporation, were defendants. Prior to trial, the driver was dismissed as a defendant.

The spreader was a wagon or box-like body container on wheels and was attached to the hitch of the International truck by a pin with a safety latch. It was filled with bulk fertilizer and taken to the farm where the fertilizer was applied to the soil. The spreader had been clogging and not applying fertilizer evenly so that, at the time of the collision, it was being taken to Clinton to exchange for another.

The point of impact of the collision was in dispute. Jackson, the driver of the truck and spreader, testified that he was traveling approximately forty-five miles per hour as he approached the Freehill pickup and was completely within his lane of traffic. He further testified that he observed the Freehill truck generally as it approached from the opposite direction and passed him; that he didn’t notice anything unusual about the driving of that truck; that he heard the “thud,” checked out of his left-side mirror and saw the pickup truck broadside in the road and the spreader going down the ditch on the north side of the road. Jackson and Freehill were the drivers of the respective vehicles and both were alone. Freehill was pronounced dead on arrival at the hospital. There were no other witnesses to the collision.

Several witnesses testified to debris scattered about the pavement and gouge marks on the pavement. The witnesses were not in agreement on the exact location of the debris with reference to the center line of the road.

Defendant’s driver, Jackson, testified that he hooked up the spreader as he was leaving the farm; that he fastened the safety latch or hook to the pin; and that this was standard operating procedure. Jackson, a deputy sheriff and a State trooper testified that the safety pin was in the tongue of the spreader when they first observed it following the accident. Several witnesses testified that after the collision the hitch on the truck was damaged, had a break in its upper-right portion and was twisted.

Frank J. Martens, a State policeman for about fifteen and one-half years, was called as a witness by defendant. He testified that he arrived at the scene of the accident approximately one hour after it occurred, and that the vehicles were still located at the scene. He further testified to having investigated approximately four hundred accidents during his employment as a State trooper and that his duties included traffic enforcement, accident investigation and criminal investigation. He made observations at the scene of the accident as to location of the vehicles after the accident, marks on the pavement and the damaged condition of the hitch. Also, he testified to measurements of marks and vehicle locations he made at the scene. He was asked, based upon his investigation and experience as a State trooper investigating approximately four hundred accidents, whether he had an opinion as to which lane the impact between the Freehill truck and defendant’s fertilizer-spreader occurred in. Upon objection by plaintiff’s counsel, he was not permitted to answer.

Motions for directed, verdict at the close of plaintiff’s evidence and at the close of all the evidence were denied. The jury returned a verdict in favor of plaintiff for $26,000 and judgment was entered on the verdict. Defendant filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. That motion was denied.

Defendant now assigns as reversible error numerous grounds, including failure to permit the introduction of certain evidence, permission of the introduction of improper evidence and improper instruction to the jury.

Defendant contends that it was error for the court to refuse to submit to the jury a special interrogatory on whether Duane Jackson, defendant’s driver, was guilty of negligence which proximately contributed to the damages sustained since plaintiff’s theory of liability was upon the doctrine of respondeat superior and there were instructions given on that theory.- It contends that defendant could not be liable unless its driver was guilty of negligence; that this was a material ultimate fact which would control the verdict as a matter of law; and that under section 65 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 65), the court has no discretion to refuse a request for the giving of a special interrogatory on a material ultimate fact.

Special interrogatories are used for the purpose of testing a general verdict against a jury’s conclusion as to the ultimate controlling facts. Wise v. Wise, 22 Ill App2d 54, 159 NE2d 500 (4th Dist 1959). However, for a special interrogatory to be proper, the answer responsive thereto must be inconsistent with some general verdict that might be returned. King v. Ryman, 5 Ill App2d 484, 125 NE2d 840 (2nd Dist 1955); Rice v. Gulf, Mobile & O. R., 84 Ill App2d 163, 228 NE 2d 162 (1st Dist 1967). In the state of the record in this case the answer to the tendered special interrogatory would not necessarily control on the ultimate genuine issues of this case nor be inconsistent with the general verdict. It was not reversible error, therefore, for the court to refuse to submit the interrogatory in this case.

Defendant contends the trial court erred in permitting the allegations of the complaint to stand as to failure to have safety chains on the fertilizer-spreader, in permitting plaintiff to question Jackson as to the absence of safety chains on the fertilizer-spreader, and in giving Plaintiff’s Instruction 19 which recited section 227, chapter 95%, 111 Rev Stats 1967, and omitted the exception under section 221 of that chapter. Defendant also contends that the fertilizer-spreader was an “implement of husbandry” as defined in section 1-124 of chapter 95%, 111 Rev Stats 1967, and as excepted from registration under section 3-402 of article IV of that chapter, and therefore was exempt from section 227 requiring safety chains.

The provisions of section 3-402 of article IV of chapter 95%, 111 Rev Stats 1967, have no application to this matter as those provisions are under article IV of the Illinois Vehicle Law dealing wholly with the original and renewal registration of vehicles and not with the regulation of traffic on highways. While section 1-124 of chapter 95%, Ill Rev Stats 1967, contains a definition section, including the defining of an “implement of husbandry,” broad enough to include the fertilizer-spreader in the instant case, the applicable statutes do not except this spreader from the safety-chain requirements of section 227 of that chapter.

Section 227 dealing with towed vehicles, provides:

“(b) Outside a business, residential or suburban district or on any controlled access highway, no vehicle other than a pole trailer or a semi-trailer which is being towed by a truck tractor . . . shall be towed on a roadway except by a drawbar and each such vehicle so towed shall, in addition, be coupled with 2 safety chains or cables to the towing vehicle. . . .” (Section 227(b), c 95%, Ill Rev Stats 1967.)

That section is a part of article XVI which, in its first section (§ 221, c 95%, Ill Rev Stats 1967) in setting forth the scope and effect of the article, provided:

“(b) The provisions of this Article governing size, weight and load do not apply to fire apparatus, equipment designed for snow and ice removal operations on highways and owned or operated by the State of Illinois or any political subdivision thereof, or to implements of husbandry temporarily operated or towed upon a highway, . . . .” (Section 221(b), c 95%, Ill Rev Stats 1967.)

In our opinion, subparagraph (b) of section 221 does not apply to the fertilizer-spreader towed on the highway in this case, as this spreader was not intended or designed to be used “temporarily . . . upon a highway,” nor was it so used, within the intent and meaning of this statute. The obvious intent of this statute is to exempt implements used exclusively for agricultural purposes, such as a disc, combine, harrow, and the like, to permit a farmer to move from one field to another. The spreader here in use was so constructed and so used as to be frequently on the highways. It was not an “implement (s) of husbandry temporarily operated or towed upon a highway.” It created the same hazard any other trailer would create. Thus, the Legislature, in article XVI of the Uniform Act Regulating Traffic on Highways, treated it the same as other trailers.

We further observe that section 227 is a safety section and does not itself except an implement of husbandry from its operation. Rather, it specifically says “no vehicle other than,” and then sets out the exceptions, which are a pole trailer or a semitrailer. (Emphasis added.) We can only conclude that the fertilizer-spreader towed in this case was required to have safety chains. The trial court was correct in denying the motion to strike this allegation from the complaint. It also was not in error in permitting questions and testimony as to the absence of safety chains and in instructing as it did on this question.

Defendant alleges as a further point of error the failure of the court to permit State Trooper Frank Martens to give his opinion as to which lane the impact occurred in. Considerable foundation evidence was produced as to the number of auto accidents the trooper had investigated and the nature of his duties. It was shown that he arrived at the scene of the accident within a relatively short time after its occurrence and before the vehicles were moved. He also testified from his personal observation as to measurements he made, location of the vehicles, and skid marks and debris which he observed at the scene. He further testified as to the damage to the hitch on the pickup truck and the pin and clip used to affix the fertilizer-spreader to the hitch of the truck.

The use of expert-opinion testimony in automobile-collision cases has been a matter of numerous recent decisions in this State. In Thomas v. Cagwin, 43 Ill App 2d 336, 193 NE2d 233 (2nd Dist 1963), a police officer who arrived at the scene of the accident was permitted to testify and give his opinion as to the point of impact. This was held not error. Likewise, in Siebens v. Konicek, 108 Ill App2d 300, 247 NE2d 453 (2nd Dist 1969), it was held not error to permit an investigator for the county sheriff’s office to give his opinion as to point of impact based upon location of debris. However, in Denver v. Hickox, 81 Ill App2d 79, 224 NE2d 468 (4th Dist 1967), this court reversed and remanded the judgments for error in permitting a State police officer to give an opinion as to speed of a car at the time of impact where the officer was not shown to have a knowledge of the principles of mechanics or physics to make such a determination. We noted there that our courts have not abandoned the principle that such opinion evidence should be received with caution.

As we noted in Abramson v. Levinson, 112 Ill App2d 42, 250 NE2d 797 (1st Dist 1969), whether the testimony of a reconstruction expert and the expression of an opinion in the reconstruction of an accident by an expert is admissible is a question to be first determined by the trial court. One of the factors which first must be demonstrated is that the area of inquiry requires the employment of principles of physics, engineering or other science or scientific data beyond the ken of the average juror. Further, as was stated in Thomas v. Cagwin, supra, this type of evidence should be treated with caution and “its admissibility rests within the sound discretion of the trial judge . . . .” (193 NE2d at 235.)

In the instant case, the area of inquiry was as to the point of impact, based largely upon location of the debris. However, the State trooper did not testify positively as to location of the debris. He testified that he could not recall where the debris was in relation to the center of the south or north lane. Further, he was not positive as to length and location of skid marks. Under the testimony given by the trooper, we cannot hold it error not to have permitted him to give his opinion as to point of impact. The trial judge did not abuse his discretion in refusing the testimony.

Defendant further contends that plaintiff did not prove defendant was negligent by any direct evidence, and that the circumstantial evidence relied on for this proof was mere guess, conjecture or surmise. A similar contention is made as to proof by plaintiff of her decedent’s due care.

While it is true that the mere fact that one vehicle has come into contact with another does not prove negligence, yet in many cases direct proof of facts is not available. The evidence in this case and the reasonable inferences which the jury might draw therefrom are sufficient for the jury to have concluded that the fertilizer-spreader came loose from the truck and collided with the truck of plaintiff’s decedent. Such conclusion, coupled with the failure of defendant’s truck and spreader-trailer to have two safety chains in violation of section 227 of chapter 95%, Ill Rev Stats 1967, or the alleged failure of defendant to securely hitch the trailer to the truck, would be sufficient proof of negligence of defendant to sustain the jury verdict. Other evidence in the record sustains this conclusion. Jackson testified that he heard a “thud,” looked in his rearview mirror and saw Freehill’s truck sideways in the road; that he did not notice anything unusual about the handling of the truck; and that he did not lose control of his vehicle after he heard the “thud.” This evidence, along with the testimony as to the damage to the hitch and pins, is indicative that the trailer was not attached to the truck at the time of the collision.

From the evidence introduced, the jury could reasonably conclude that defendant failed to take the precautions a reasonably careful person would to make certain that the trailer would not get loose, and that it failed to comply with the statute on safety chains. These were jury questions.

There was no evidence that Freehill was guilty of contributory negligence and the reasonable inferences from the evidence were that he exercised due care.

The questions of negligence and due care were jury questions, as there was sufficient evidence which, together with reasonable inferences to be drawn therefrom, sustains the jury verdict on the question of liability.

Defendant also relies on certain other alleged errors in testimony which related only to the question of damages. Over objection, Donald Roderick, a city fireman, who as a sideline does tree clearing, bulldozing and demolition, was permitted to testify for plaintiff that he was familiar with the reasonable value of a person’s services with a stump-removal machine. This was Free-hill’s occupation. Roderick testified that if he were renting his machine per hour, he would charge $15 per hour. He further testified that Freehill would probably make $10,000 to $20,000 a year working the regular hours per week in the regular working season. He testified he was unable to state the manner in which Freehill charged for stump removal, nor did he know how many stumps Free-hill may have taken out in the two prior years.

No preliminary proof was given as to the nature and extent of the business Freehill conducted, the extent of any investment or expenses he had, nor that this work was decedent’s principal source of income. There was no testimony as to the charges Freehill made or whether he rented his machine. The entire testimony of Roderick was not as to what decedent charged or made as income but rather as to the charges he would make and as to what an average operator could make. There was no testimony as to the comparison of Roderick’s operation with that of Freehill.

The law in Illinois is clear that where the the decedent leaves a widow or lineal heirs there is a presumption that such person has sustained some substantial pecuniary loss by reason of death. Ferraro v. Augustine, 45 Ill App2d 295, 196 NE2d 16 (1st Dist 1964). However, evidence introduced of pecuniary loss must not be speculative or uncertain. In the instant case, the testimony of Roderick was of a highly speculative and conjectural type. Damages to be recoverable must be actual. Central Illinois Light Co. v. Stenzel, 44 Ill App2d 388, 195 NE2d 207 (3rd Dist 1964). Testimony as to damages or loss of earnings which is speculative, remote and uncertain is improper. Looby v. Buck, 20 Ill App2d 156, 155 NE2d 641 (2nd Dist 1959). It was error to permit the testimony of Roderick under the circumstances. As there is no competent evidence in the record on loss of earnings of decedent, it was error for the court to give Plaintiff’s Instruction No. 10 which contained loss of earnings as an element of damages. Levinthal v. Chicago Transit Authority, 345 Ill App 185, 102 NE2d 545 (1st Dist 1951) (abst).

Further, Audrey A. Freehill, decedent’s spouse, was permitted to testify over objection as to the condition of her health. She testified that her health had been bad since 1956 and that she had been treated for cancer. Defendant moved to strike the testimony and advise the jury to disregard it. The court denied that motion. Motion then was made to have a juror withdrawn and a mistrial declared. The court denied that motion also. She then was permitted to testify as to the expenses she incurred for treatment of the cancer, as well as the prognosis for her future care and treatment.

The testimony as to the health and expenses of the surviving spouse was highly prejudicial and inflammatory. In an action for wrongful death, the wealth, health, poverty or helplessness of the beneficiary cannot be considered in determining the damages for the wrongful death. Wilcox v. Bierd, 330 Ill 571, 162 NE 170 (1928); Chicago, P. & St. L. Ry. v. Woolridge, 174 Ill 330, 51 NE 701 (1898). In the instant case, it was reversible error to permit that testimony.

The joint income tax returns of Emmett J. Freehill and Audrey A. Freehill were offered by defendant’s counsel on cross-examination of Audrey A. Freehill either to refresh her recollection or to impeach her in connection with decedent’s earnings. She testified that she did not recall the income, but that she and her husband filed joint returns signed by both. The court refused to permit their use. Decedent’s earnings were in issue in the case. Where a litigant has put in issue his income, the privilege from discovery of his income tax returns is waived. Hawkins v. Potter, 44 Ill App2d 314, 194 NE2d 672 (4th Dist 1963); Wigington v. Faulkner, 51 Ill App2d 220, 201 NE2d 252 (4th Dist 1964) (abst). Since these returns were subject to discovery, they were available for impeachment or refreshment purposes.

Defendant complains of error with respect to the giving of certain other instructions and the refusal of certain instructions. We have examined these and find no reversible error in the court’s ruling on these instructions in view of our determination of the other points herein decided.

In view of the substantial errors in rulings on evidence and instructions on the issue of damages, this case must be reversed and remanded for a new trial on that issue, although we find no reversible errors on the issue of liability.

Reversed and remanded for new trial on the issue of damages only with instructions to enter judgment in favor of plaintiff on the issue of liability.

SMITH and TRAPP, JJ., concur.


text:
    City of North Chicago, a Municipal Corporation of Lake County and the State of Illinois, Plaintiff-Appellee, v. Amelia J. Connell, et al., Defendants, Joseph J. Drobnick, et al., Defendants-Appellants.
    Gen. No. 69-222. (Abstract of Decision.)
    Second District.
    July 9,1970.
    Rehearing denied August 7,1970.
    Mark J. Drobnick, of Waukegan, for appellants; Warren W. Browning, of Waukegan, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: ME. JUSTICE ABEAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arthur John Beksel, Defendant-Appellant.
    Gen. No. 69-84.
    Second District.
    July 29, 1970.

      Eugene E. Pigatti, Jr., of Eockford, for appellant.
    Philip G. Eeinhard, State’s Attorney of Winnebago County, of Eockford and William E. Eeu, Assistant State’s Attorney, for appellee.
   ME. JUSTICE ABEAHAMSON

delivered the opinion of the court.

Defendant, Arthur John Beksel, was committed to the sanitarium at Menard for an indeterminate period as a sexually dangerous person. A criminal complaint was filed in the Circuit Court of Winnebago County by Pearl Franklin, the mother of Susan Edwards, against him alleging that he committed the offense of indecent liberties with the child in violation of paragraph 11-2, chapter 38, Ill Rev Stats 1967, on May 13, 1968. Thereafter, a two-count indictment filed October 17, 1968, recited that “Arthur Beksel, a person of the age of 17 years and upwards (1) committed the offense of indecent liberties with a child, in that he performed an act of sexual intercourse with Susan Jane Edwards, a child under the age of 16 years in violation of par 11-4 (1), ch 38, Ill Rev Stats, and (2) committed the offense of indecent liberties with a child in that he, with intent to arouse his sexual desires lewdly fondled or touched the private parts of Susan Jane Edwards, a child under the age of 16 years, in violation of par 11-4(3), ch 38, Ill Rev Stats.”

On October 22, 1968, the State filed a petition, under section 105, chapter 38, Ill Rev Stats entitled “An act in relation to sexually dangerous persons, and providing for their commitment, detention and supervision,” requesting the court to appoint two qualified psychiatrists to make a personal examination of the defendant to ascertain whether the defendant is a sexually dangerous person and that they file a report in writing of the results of their examinations.

The petition, as amended on October 24, 1968, alleged that the defendant is charged in the indictment with the offense of indecent liberties with a child (Susan Jane Edwards); that defendant is charged also with the offense of rape, the victim being a 13-year-old girl (Susan Longardner) and that on October 17, 1960, the defendant entered a plea of guilty to the offense of assault with intent to commit a lewd and lascivious act upon a 16-year-old girl, for which he was placed on probation for three years, served six months in the county jail and paid a fine of $300; also, that defendant is suffering from a mental disorder which has existed for more than one year prior to the filing of the petition, coupled with criminal propensities towards acts of sexual assault and acts of sexual molestation of children and is deemed a sexually dangerous person.

The court appointed Drs. Graybill and Hamann to make the examinations. Dr. Graybill examined the defendant on October 25, 1968, and on November 12, 1968, reported that his clinical diagnosis of the defendant indicated a severe depressive reaction in a sexually deviate personality. “There is no doubt that this man is sexually dangerous but he appears motivated at this time to seek some form of help. Long-term institutional care with individual psychotherapy is recommended for Mr. Beksel,” said Dr. Graybill. Dr. Hamann’s report of November 21, 1968, stated on October 29, 1968, he examined the defendant and that defendant was not mentally retarded or defective, but would be classified as having a sociopathic personality disturbance with sexual deviation. He further stated that if the charges were true against the defendant, he would classify him as a sexually dangerous person.

On October 22, 1968, at the time of arraignment on the indictment, a privately retained attorney appeared on behalf of the defendant. The petition under the Sexually Dangerous Persons Act was filed under the same case number as required. On November 14, 1968, Attorney Alex Victor withdrew as defense attorney and the Public Defender was appointed by the court to represent the defendant. On February 10, 1969, a bench trial was held on the petition and the judge, after hearing all the evidence, found that defendant was a sexually dangerous person and ordered him committed to the Illinois State Penitentiary at Menard. This appeal followed.

The issues as presented to this court are: (1) Can a person be committed as a sexually dangerous person if the acts are against an adult or whether they must involve children and, if so, what does the word “child” mean, as far as age is concerned, under the Act; (2) was defendant denied his right to counsel before signing a waiver and confession, before being examined by psychiatrists, and before being put in a lineup; (3) was the confession coerced, and in such a proceeding is not defendant entitled to the constitutional guarantees required in a criminal prosecution; (4) was the finding of guilty contrary to the law and the evidence.

The statute involved is chapter 38, section 105-1.01, Ill Rev Stats 1967, as follows:

“All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons.”

This Act does not define “children” and we have found no case wherein any Illinois court has been called upon to establish the age limitation for the purpose of this Act. Both the State and the defendant urge that “children” be defined as applied to this Act since it appears to be a question of first impression.

Before reaching that question, it seems proper to first determine the issue presented as to whether the Act only applies to persons who commit sex crimes upon children. We are of the opinion that the language of the Act, “coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward act of sexual assault or acts of sexual molestation of children” does not require the interpretation that both “sexual assault” and “sexual molestation” refer to children. The statute has the word “or” between these two types of sex crimes and “or” in its normal context means just what it says, i. e., the defendant has to be suffering from a mental disorder which has existed for not less than one year and has demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children. The phrase “sexual assault” appears to refer to sex crimes involving force (assault), and acts of sexual molestation of children are acts which basically involve the incapacity of the victim to consent to primarily consensual acts (molestation). Logically, a sexually dangerous person is a person who is suffering from a mental disorder and who has criminal propensities for sexual assault, regardless of whether the victim is a child or an adult. In either event, he has a mental disorder, is dangerous to society, and should properly receive treatment for the protection of society and his own rehabilitation.

It is to be noted that at least two of the crimes herein alleged and described later in this opinion involve forceful sexual assault. Therefore, reading the language of the Act in its natural import, we believe a person can be found guilty of being a sexually dangerous person although the forceful acts involved are against adults, as well as to children. Even if the Act is construed as to involve children only, we believe that the definition of children should come from section 11-5 of the Criminal Code (Ill Rev Stats 1967, c 38, par 11-5) entitled “Contributing to the sexual delinquency of a child” wherein it is provided as follows:

“(a) Any person of the age of 14 years and upwards who performs or submits to any of the following acts with any person under the age of 18 contributes to the sexual delinquency of a child:
“1) Any act of sexual intercourse or
“2) Any act of deviate sexual conduct or
“3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both; or
“4) Any lewd act done in the presence of the child with the intent to arouse or to satisfy the sexual desires of either the person or the child or both.”

The defendant urges since “children” is not defined in the Act in question, that chapter 23, section 2401, Ill Rev Stats 1967, “Charities and Public Welfare,” should apply and that, therefore, a child under the Sexually Dangerous Persons Act should be a child “under the age of 13 years.” This section reads as follows:

“In all cases in which a person of the age of 17 years and upwards is charged with a violation of a statute or ordinance, the basis of the charge being a sexual crime against a child under the age of 13 years, the trial of such charge shall be in a circuit court.”

As no child herein involved is under the age of 13 years, it is defendant’s contention that the court could not find the defendant guilty under the Sexually Dangerous Persons Act.

Although the precise question of whether a child under the Act in question means a child under the age of 18 or a child under the age of 13 was not reached, this court in People v. Harter, 86 Ill App2d 461, 230 NE2d 15, affirmed a judgment of the trial court determining the defendant to be a sexually dangerous person where an information charged defendant with contributing to the sexual delinquency of a minor of the age of 17 and cited in the opinion, at page 467, the definition of “child” under section 11-5 of the Criminal Code. As we are dealing with sex crime repeaters who have a mental disorder of at least one-year duration and who have criminal propensities, we perceive no reason for covering less than all sex crimes involving children under this Act, and particularly, no reason for limiting the criminal sexual activity to children under the age of 13. The children with whom the defendant was found to have committed sex crimes in our case were 13, 14 and 16 years of age, and come within the definition of “children” which we have applied to the Sexually Dangerous Persons Act.

As to defendant’s claim that his various constitutional rights were violated, we must first determine if the safeguards normal to criminal prosecution are to be followed, even though the proceedings under the Sexually Dangerous Persons Act are civil in nature. This Act provides for involuntary confinement, although it is primarily for the treatment of the defendant rather than criminal punishment. Since the defendant’s individual liberty is involved, certain safeguards of a criminal prosecution must be applied to proceedings under this Act, although this does not mean that such proceedings are a criminal prosecution or that all of the safeguards of a criminal procedure must be followed. The People v. English, 31 Ill2d 301, 307, 201 NE2d 455. In the English case, it was held that a defendant cannot be compelled to disclose criminal conduct as well as mental condition, although he may be compelled to submit to psychiatric examinations which do not call upon his testimonial capacity. In People v. Potter, 85 Ill App2d 151, 156, 228 NE2d 238 it was held not only that under the Sexually Dangerous Persons Act a defendant is entitled to his constitutional privilege against self-incrimination, but that he is also entitled to appointment of counsel prior to psychiatric examination unless such rights were knowingly and understandingly waived. Thus, it was said that the “road map” laid down in Miranda must be followed to proceedings under the Act as to in-custody interrogation. (See Miranda v. State of Arizona, 384 US 436.)

In our case, the record reveals that the defendant, upon being taken into custody, was advised at least three times prior to psychiatric examinations of his constitutional rights, and that at the time the psychiatrists were appointed his privately retained counsel was present. There is some confusion as to whether counsel realized that he was representing the defendant on the sexually dangerous petition, as well as upon the crime charged in the indictment, but he was made aware of the fact that they were both filed under the same case number when the psychiatrists were appointed. He then apparently realized they were all a part of the same proceeding. for which he was retained. The privately retained attorney remained counsel until his withdrawal, which was after the psychiatric examinations were completed. The defendant made no objection during the testimony of Dr. Graybill and Dr. Hamann on the grounds of self-incrimination. Under the circumstances here present, we see no violation of defendant’s right against incriminating himself. Furthermore, not having asserted his claim of privilege against self-incrimination at the trial, defendant has waived this right and cannot now complain on review that the admission of the testimony violated his constitutional rights. The People v. Bruckman, 33 Ill2d 150,152, 210 NE2d 537.

Defendant further claims he was not advised of his right to counsel prior to a lineup, upon which he says identification was based. Miranda v. State of Arizona, 384 US 436; United States v. Wade, 388 US 218 (1967); Gilbert-v. California, 388 US 263 (1967). This lineup concerns the identification of him by Susan Edwards. He states in regard to a lineup identification that he was placed in a lineup without the benefit of advice as to his right to counsel. The only testimony in the record concerning the lineup comes from Susan Edwards, and that was on cross-examination when she was asked if she was ever present at a police lineup. She testified that she was present at a police lineup about two months after the May 13th incident, but she was not asked whether the defendant was in that lineup. On redirect examination she testified that the defendant was in that lineup, but there is absolutely no testimony that she identified him at that time. She did make an in-court identification of the defendant. There is no objection to identification procedure in the record and there are no facts in the record concerning the lineup, except that five men were present. Therefore, there are no facts before us that would indicate that the lineup was in any way unfair or that the defendant was, or was not denied counsel at the time of the lineup. Defendant in his own testimony does not make any statement that he was denied counsel or that there was an unfair lineup. The lineup question is raised for the first time on review and since there was no objection pertaining to this matter in the trial court, it cannot be considered on appeal. The People v. Bruckman, supra.

Other contentions of the defendant are that in regard to his confession in the Longardner incident defendant was denied his right to counsel, that his confession resulted from coercion, and that the State failed to call all witnesses to his interrogation. Defendant did testify that he was advised of his rights prior to the interrogation and confession. Detective England testified that defendant did not make a request for counsel and that he was in a position at all times to hear defendant’s conversations. The admissibility of a confession is for the trial court to decide and the court need not be convinced of the voluntary character of the confession beyond a reasonable doubt. The People v. Golson, 32 Ill2d 398, 402, 207 NE2d 68. Furthermore, on the issue of right to counsel, there is no requirement that the State call all persons involved in the interrogation. People v. Goad, 78 Ill App2d 105, 110, 222 NE2d 558.

There was no motion to suppress the confession, but this matter comes up solely on the testimony elicited during the trial. It is true that where coercion is alleged in the obtaining of a confession the State must produce or satisfactorily explain the absence of material witnesses. The People v. Wright, 24 Ill2d 88, 92, 180 NE2d 689. Defendant testified that Detectives Wright and Wortman did not mistreat him, but that Detectives England and Ritter did mistreat him. It appears that first Detectives Wright and Wortman interrogated him and that thereafter interrogation was continued by England and Ritter. Under the circumstances, as revealed by the record, the testimony as to Wright and Wortman was not material to the issue of coercion. The absence of Detective Ritter from the trial was explained and Detective England stated that there was no mistreatment. The written waiver of defendant’s constitutional rights prior to the signing of the confession was properly admitted into evidence. In addition, the facts reveal that there was no unreasonable detention of defendant without counsel. We cannot say that the trial court’s decisions on these matters were manifestly erroneous.

Finally, it is contended that there is no adequate proof in the record upon which to base the finding that the defendant is a sexually dangerous person. Defendant also states that there is no competent testimony that any of the offenses were committed by him. The record of the defendant’s plea of guilty to assault with intent to commit a lewd and lascivious act upon a 16-year-old girl in 1960 was admitted into evidence; a policewoman identified Arthur John Beksel as the same person who pled guilty to that act in 1960; and the defendant himself admitted that he pled guilty to that offense. The assault against Susan Longardner was adequately proved by the testimony of Susan and James Longardner. Without going into the details of the assault, the evidence established that the defendant went into her bedroom at night, hit her with a flashlight and attempted to have sexual intercourse with her. Susan herself could not identify the man because of the lack of light, but her brother, James, clearly saw the defendant and identified him.

Susan Edwards testified to the attack upon her and rape, and identified the defendant. Her testimony is corroborated by that of her mother, Pearl Franklin. Defendant denied that he was guilty of each charge, but admitted knowing Susan Longardner’s mother and Susan Edwards’ sister. The evidence sufficiently establishes the three separate acts of sexual assault by a preponderance of the evidence (People v. Harter, 86 Ill App2d 461, 468, 469, 230 NE2d 15) and the psychiatric examinations by two psychiatrists establish that the defendant suffered from a mental disorder of over one year’s duration and was a sexually dangerous person.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: RICHARD MILLS, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hubert W. Brown, Defendant-Appellant.
    Gen. No. 11,105.
    Fourth District.
    July 23,1970.

      Phillip D. Wynn, of Carlinville, for appellant.
    Thomas P. Carmody, State’s Attorney of Macoupin County, of Carlinville, for appellee.
   RICHARD MILLS, J.,

delivered the opinion of the court.

Brown was indicted in separate counts for theft and criminal damage to property, both of the felony rank. A jury of peers adjudged him guilty on both counts. He was granted three years’ probation, with nine months at the State Farm as a condition thereof.

This cabal had its inception when some 460 pounds of #9 bare copper wire were cut down from the communication lines of the Chicago, Burlington & Quincy Railroad in Macoupin County. The scenario occurs on four days in February, 1968, being a Friday, Saturday, Sunday and Monday, February 2, 3, 4 and 5. The actors are Bradford, Davis, Cantrell and Brown. Upon the trial, the plot unfolded thusly:

On Friday night, the quartette left Kennett, Missouri, in Brown’s white Pontiac and drove to Chicago. Brown purchased a black Dodge convertible on Saturday in Chicago in the company of the other three, and then they all drove southward in both automobiles (two in each car) until they stopped in the middle of the afternoon on Saturday at a truck stop at Bloomington, Illinois. Brown gave the others $5 and instructed them to purchase some wire cutting pliers, which they did. During the early evening of Saturday, all four drove in the black Dodge over to Pekin, then later returned to the Bloomington truck stop where they stayed overnight using the free bunk quarters for truckers. The next morning, Sunday, they drove both cars on south to the general area of the crimes and searched for wires to cut. They parked the black Dodge at the junction of U. S. Route 66 and Illinois Route 48, a few miles north of Litchfield, and all rode in the white Pontiac the few miles to where the C B & Q tracks cross State Route 108. Bradford served as lookout while Brown, Davis, and Cantrell proceeded to cut down the copper wire from the C B & Q lines. While the criminal acts were being perpetrated, law officers appeared at the scene. Brown sounded the alarm and the covey flushed. Bradford and Davis fled in the white Pontiac and were later apprehended after a high-speed chase. Brown and Cantrell ran off into the darkness and made their way back on foot the distance of about four miles to where the black Dodge had been left. Brown and Cantrell then drove back to Kennett, Missouri, during the early hours of Monday morning.

Brown interposed a defense of alibi, maintaining that: Cantrell was not with the other three on the trip; that he (Brown) went out with two girls in Bloomington on Saturday evening, did not drive to Pekin, left the truck stop after 11:30 p. m. on Saturday evening, drove to Missouri and arrived at Kennett at approximately 9:00 a. m. Sunday morning. After the jury verdict of guilty on both charges, Brown filed a post-trial motion for a new trial based on newly discovered evidence, which was denied. And now on this appeal Brown contends that (a) the trial court erred in denying a new trial because of newly discovered evidence, (b) that the value of the copper wire was not proved, and (c) that he was not proved guilty beyond a reasonable doubt. On the other hand, the People’s theory is: Brown did not exercise reasonable diligence in discovering the “new” evidence, which was merely cumulative anyway; the value was adequately proved; and defendant was proved guilty beyond a reasonable doubt.

First of all, let us survey the motion for new trial based upon newly discovered evidence. To support the motion, Brown submitted the testimony of Harvey Warren (an attendant at the truck stop in Bloomington), a payroll sheet from the truck stop, the statement of Carol Ward (one of the girls Brown said he had a date with on Saturday night), and a gasoline purchase receipt from “Jim” (at Uniontown Oil Co., Uniontown, Missouri), as well as affidavits of the defendant and his counsel.

Warren directly contradicted prosecution’s trial witness, Robinson, who was also an attendant who worked at the Bloomington truck stop. Warren maintained that he, not Robinson, worked the night shift of Saturday-Sunday, and that he last saw Brown between 10:00 and midnight Saturday. Now, both Brown and his counsel were aware of the existence and identity of this possible witness prior to trial, and even on the night before the jury was selected defense counsel talked with Warren on the telephone. At no time was Warren subpoenaed to testify on behalf of the defense. As a matter of fact, defense maintains that although counsel talked with Warren, they did not know where to locate him. The following appears in the report of proceedings on the motion for new trial:

MR. DOBBS: “Mr. Warren, I talked to you on the phone in July. You did tell me that you didn’t want to get involved in this, didn’t you?”
WITNESS: “That’s correct. I don’t — .”
MR. DOBBS: “The only information you had would be that Hubert left the station while you were still there?”
WITNESS: “That’s all I could say, yes.”
MR. DOBBS: “Do you recall whether or not I asked you for your address?”
WITNESS: “I don’t remember that you asked or that I refused to give it to you. I told Mr. Schwartz because I hadn’t refused to get it — give it to anybody. I don’t remember you asking for it. I don’t remember refusing to give it to you.”
MR. DOBBS: “I think that’s all.”
THE COURT: “You may step down.”

Brown maintained that he had a date with a girl that Saturday evening in question, but it wasn’t until his counsel talked with Harvey Warren the night before trial that they discovered her name. Carol Ward said in her statement that she had known Brown for about a month, was out with him on the Saturday evening in question, returned with him to the truck stop at 11:30, left him there and went out for another drink. When she returned an hour later, Hubert wasn’t there.

A “payroll account time sheet” from the truck stop firm was also offered to support the motion for new trial. It reflected that both attendants, Robinson and Warren, worked on February 2, 3 and 4. It does not indicate what hours or what shift either of them worked.

The gasoline receipt from Uniontown, Missouri, is dated “2/4, 1968,” was made out to “cash,” and simply signed by “Jim.” Brown’s affidavit states that although he and both of his attorneys interviewed “Jim” in Uniontown six days before the hearing on the motion for new trial, none of them “thought to obtain the last name of this individual.”

“Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequence of an adverse verdict, such application should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and to show there has been no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse.” People v. Holtzman, 1 Ill2d 562, 569, 116 NE2d 338, 342. “A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. ... To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.” People v. Baker, 16 Ill2d 364, 158 NE2d 1, 6; see also, People v. Dukes, 19 Ill2d 532,169 NE2d 84, 87.

The law in Illinois seems to be unmistakably clear: a request for new trial based on newly discovered evidence is subjected to the most cautious and circumspect exploration, must sustain the burden of showing proper and timely perseverance and diligence, must demonstrate that the evidence could not have been uncovered or revealed earlier with due vigilance, must yield proof not merely cumulative to the evidence on trial but reflecting a conclusive and final quality that would likely change the verdict, and, ultimately, is a matter reposing within the sound discretion of the trial bench — the exercise of which will not be altered unless manifestly abused.

By any test, the motion for new trial was properly denied by the trial court. The existence of Harvey Warren (and through him Carol Ward and the payroll sheet) was not only known to Brown and his counsel, but his lawyer actually talked with Warren by phone prior to trial. From the above colloquy between defense counsel and Warren herein recited, it seems obvious that little effort, if any, was made to have Warren present before the jury. Certainly no subpoena was issued for his testimony. And as to “Jim” in Uniontown, Missouri, there is absolutely nothing in this record that would give the slightest reason, valid or invalid, why his gasoline receipt to “cash” was not available at time of trial. By no stretch of the imagination can it be said that any of this was “newly discovered evidence” since on its face it had already been discovered prior to trial (Warren), or could have been discovered prior to trial by the simple exercise of due diligence.

This alleged “newly discovered evidence” must also fall by the wayside since it failed to be of such a conclusive character as to probably change the result upon retrial. All of the statements and testimony of Harvey Warren and Carol Ward, the data on the payroll sheet and the affidavits concerning “Jim” in Uniontown, Missouri, even if admissible and sufficiently timely, would merely be cumulative of testimony already presented. The jury viewed a parade of witnesses called by defendant to corroborate his defense of alibi, and had ample opportunity to ponder such testimony for its vague, ambiguous and ephemeral qualities. The sum and substance of all this tendered material simply runs to the alibi defense of Brown, is cumulative as to, and directed solely to, that issue of alibi, could in no way be considered conclusive in character and would probably not change the result of this case on retrial. There was no “manifest abuse” of discretion by the trial court, and the mislabeled “newly discovered evidence” was properly rejected. It was neither new nor conclusive — it was both old and cumulative.

Next, the State’s proof of value of the copper wire is challenged. Witness Carpenter, over defendant’s objection, testified at trial as to the replacement cost of the copper wire and also as to the scrap value of the wire on February 4. A special agent for the C B & Q for 30 years, he stated that he obtained the replacement cost from the railroad’s communication department, and the amount of scrap value “from the detective on the Junk and Freight Squad of the St. Louis Police Department.” Brown, in his brief, contends “That the testimony of Carpenter as to the replacement cost and the scrap value of the copper wire is ‘hearsay’ is too obvious for comment, and as such should not have been admitted over defendant’s objection.” He does not see fit to cite any decisional authority, however, as to why such hearsay cannot be admitted. To acknowledge that it is hearsay is to concede the obvious. Yet, we find countless illustrations in the annals of criminal law where hearsay evidence is readily, properly and validly utilized. To simply cry “Hearsay, Hearsay” is akin to the allegorical “Wolf, Wolf.” There is ofttimes a similar dearth of cause for alarm.

We recall that in People v. McCoy, 101 Ill App 2d 69, 242 NE2d 4, 6, we stated that “The fundamental purpose of the hearsay rule was and is to evaluate the quality of the evidence by subjecting the source of the assertion to cross-examination by the party against whom it is offered. Absent the opportunity for cross-examination and in the face of an appropriate objection, the objection must be sustained and the proffered evidence rejected.” We note in the instant case on appeal that not only was defendant given an opportunity to cross-examine Carpenter, but that upon such cross-examination he asked not one question concerning the value of the wire, the basis or source of the information, or any other aspect of this question. Wharton’s Criminal Evidence, Volume 1, § 276, “Value,” asserts that “When the nature of the offense or the punishment varies with the value of the property which has been affected, hearsay or reputation evidence in the form of the market value of the property is admissible. The prosecution is not restricted as to the use of such evidence, and any evidence from which the jury can reasonably infer value is admissible.” Defendant has failed to show this court any authority to the contrary.

The People’s other witness as to value was Mr. Hopper, who testified that he worked for a scrap metal and junk firm and that for 15 years his firm had bought and sold copper wire in the area at least once a week. Defendant did not cross-examine Hopper. But Brown did object to the allowance by the trial court of the addition of Hopper to the list of witnesses for the state. It is true that Hopper’s name was not endorsed on the original list of witnesses for the people, and that it was only during the course of the trial that the state’s attorney asked leave of court to add his name. But it is also noted that both in chambers on the record, and in open court on the record, the trial judge made the witness available to defendant’s counsel for examination. At neither time was the offer accepted, and (as already pointed out), defendant’s counsel did not see fit to cross-examine Hopper at all.

The permission of a witness to testify is purely a discretionary matter and has been so held upon numerous occasions by our courts. “The rule is firmly established that it is within the discretion of the court to allow a witness to testify whose name is not on the list furnished to the defendant and this discretion will not be reviewed unless it appears the defendant has sustained the burden of showing surprise or prejudice.” People v. LaCoco, 406 Ill 303, 94 NE2d 178, 184; People v. Hopkins, 29 Ill2d 260, 194 NE2d 213, 216. Here, Brown has shown neither surprise nor prejudice. An analogous plight arose in the LaCoco case, where the court said: “In view of the circumstance that defendants were afforded an opportunity to talk to Lusader, did not ask for a continuance, or make any showing of prejudice and proceeded with the trial, it cannot be said that the trial judge abused his discretion in permitting Lusader to testify.” (P 184.) A like situation, and identical ruling, occurred in People v. Knox, 94 Ill App2d 36, 236 NE2d 384, 387. We conclude that the trial judge did not misuse his discretion in permitting the witness Hopper to testify, and since defendant in this appeal does not challenge the expertise of Hopper’s valuation testimony, it is not necessary for us to proceed further with the question of value. It was quite adequately and suitably established.

Lastly, Brown argues that the state failed to. prove him guilty beyond a reasonable doubt. We have carefully and minutely examined the record in this appeal, and come to but one unassailable finale: there was ample evidence for that body of peers to conclude that Brown owned the car, planned the trip, planned the crime, directed the purchase of the wire cutters, selected the site of the offense, was present at the scene, showed his accomplices how to cut and roll the wire, performed much of the work himself, sounded the alarm when the police arrived and then escaped on foot. There was abundant testimony from which the jury could, and did, deduce that defendant’s alibi was cut out of whole cloth. Even in his own testimony, Brown corroborated much of the testimony of the accomplices, Bradford, Davis and Cantrell, relative to the trip. The jury chose to continue to believe the trio, and disbelieve Brown, on the points of variance.

We hold that there was ample and sufficient evidence to establish guilt beyond a reasonable doubt, and that the trial court committed neither error nor an abuse of discretion in refusing to grant a new trial on the basis of newly discovered evidence. The judgment of the Circuit Court is affirmed.

Affirmed.

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