text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joe Castillo, Defendant-Appellant.
    Gen. No. 53,732.
    First District, First Division.
    September 21, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Suzanne M. Kohut, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert A. Novelle and John A. Gibaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was found guilty of armed robbery. He received a sentence of five to fifteen years. On appeal defendant contends (1) that he was deprived of a fair trial and due process of law by an improper identification lineup and prejudicial final argument by the State; also, (2) the sole eyewitness identification was insufficient to prove defendant guilty beyond a reasonable doubt.

Early in the morning of February 13, 1967, at about 5:00 a. m., a cabdriver, Wallace Kupsik, was robbed by three passengers, male Mexicans, after he arrived at an address they had ordered. When the cab stopped, the passenger sitting in the middle of the back seat grabbed and secured the cabdriver by locking his left arm around the driver’s neck. Kupsik testified he was facing both the ceiling of the cab and the assailant holding him. The passenger to the left of the one holding the driver moved into the front seat and drove a short distance. The third passenger moved into a position in the far right of the front seat and removed the cabdriver’s glasses as they left the cab. During the robbery, until the assailants fled, the cabdriver’s head was held in the armlock by the assailant who wielded a beer bottle in his right hand. The assailant was later identified by Kupsik as the instant defendant, Joe Castillo.

Nine days after the robbery, February 22, 1967, the defendant and his two brothers were arrested for disorderly conduct. They were photographed, fingerprinted, and released on bail. The next day, February 23, 1967, they were arrested again. At the station their photographs were among a total of fifteen or twenty viewed by the cabdriver. He positively identified photographs of the defendant and his brother as two of his assailants.

A lineup composed of defendant, his brother, and two white policemen immediately followed. The policemen were both 5' 10", weighing over 200 pounds. The defendant and his brother were 5' 6"-5' 7" and weighed 110-130 pounds. The cabdriver identified defendant and his brother as two of his assailants. The two arresting officers testified that prior to the lineup, at the time of the arrest, the full constitutional warnings were given the defendant, the defendant stated he understood them, and the defendant never thereafter requested counsel. There was testimony for the defense that later requests for counsel were ignored.

On April 4, 1968, the court denied a pretrial petition of defendant to suppress any in-court identification of any witness the State had intended to call at the trial, because it would have been tainted by an improper lineup identification and related activity, including the illegal use of photographs.

At the trial, which commenced on April 25, 1968, the cabdriver made an in-court identification of the defendant and testified that defendant and his brothers, Jesse and David, robbed him. He further testified as to his identification of the defendant by photograph and at the lineup.

At the trial, and as witnesses for the defense, defendant’s brothers, Jesse and David Castillo, who had previously pleaded guilty to the robbery, testified that the third person involved in the robbery was not their brother Joe, but John Garcia. The night preceding the robbery was the first time they had ever met John Garcia. Jesse and David were in front of their house drinking. Between 10:00 and 11:00 p. m., Garcia came up to them and asked them for a drink, and all three of them started drinking. They went to Bessmer Park about 1:00 a. m., and sat on a bench for two or three hours. They then robbed the cabdriver. It was John Garcia who did all the talking with the cabdriver, and it was he who grabbed the cabdriver’s neck and held the beer bottle over his head.

David Castillo, on cross-examination, testified that neither he nor his brothers since February 23, 1967, made any attempt to locate John Garcia. Jesse testified that although he had visited Joe about five times since the robbery, they had never discussed it.

Considered first is defendant’s contention that his identification was “from a lineup which was patently a nonexigent showup, devoid of counsel’s presence,” and “denied defendant due process and right to counsel.”

Defendant contends that the standards for identification procedures set forth in Stovall v. Denno, 388 US 293 (1967) (the right to a fair lineup), and Gilbert v. California, 388 US 263 (1967) (the right to a lawyer at the lineup), were not met here and resulted “in an ineradicable taint of the identification on which his conviction was grounded.” See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152 (1969).

As argued by the State, the rule set forth in Gilbert does not apply here. It applies only to identification procedures conducted in the absence of counsel after June 12, 1967, and the identification lineup in this case took place on February 23,1967.

As to the composition of the lineup, which consisted of two short Mexicans and two or three heavy non-Mexicans, it is obvious that the lineup was fundamentally unfair for the purpose of identification. However, we are not persuaded that the receipt of the evidence of the lineup identification in this case and at the trial tainted the in-court identification by the cabdriver. In People v. Lee, 44 Ill2d 161, 254 NE2d 469 (1969), our Supreme Court stated (p 169):

“The test is whether the identification procedures were ‘unnecessarily’ suggestive and the methods used must be examined in light of the circumstances in each case.”

As argued by the State, we think the following factors make Kupsik’s testimony sufficient identification to support the conviction:

1. He had been robbed before and purposely took good note and observation of his passengers.
2. The lights in the cab went on when they entered and the victim was able to observe their faces, and particularly, that of Joe Castillo. The victim looked at them at this time for about 2 minutes.
3. It took 10 to 12 minutes to get to the requested intersection. During this time, traffic was light, dawn was breaking, the street lights were still on. The cabdriver, every few seconds, would look into his rear-view mirror and look at the faces of the three men behind him.
4. When he arrived at the destination, Joe Castillo put an arm around his neck. Distance between his and Joe Castillo’s face was but 7-9 inches. His face was right over the victim’s.
5. He watched Castillo face to face for the whole drive that lasted some 10 or 15 minutes. He looked right into his face.
6. It was only after the cab finally stopped and he was robbed that his glasses were pulled off. From the initial entry of the defendant into his cab, he had observed him for over 20 minutes at close and very close range.

Although we do consider the lineup procedure here to be unfair, we find no substantial prejudice to the defendant. The totality of the circumstances surrounding the occurrence gave the cabdriver ample opportunity to observe his assailant and provided an adequate independent basis for the in-court identification. (People v. Palmer, 41 Ill2d 571, 244 NE2d 173 (1969); People v. Cook, 113 Ill App2d 231, 238, 252 NE2d 29 (1969).) The identification testimony by the cabdriver was positive and convincing and was unshaken in lengthy cross-examination. We find it was sufficient to support defendant’s conviction beyond a reasonable doubt, and it was not tainted by the improper lineup. See People v. Dial, 95 Ill App2d 345, 238 NE2d 122 (1968).

Next considered is defendant’s contention that “prejudicial prosecutorial argument deprived the defendant of a fair trial and due process of law.” Defendant states that the prosecutor in closing argument to the jury said, “I feel he (complainant) is a reputable witness, a good witness, a truthful witness, and that he properly identified the person that robbed him on February 13, 1967 and that the brothers who testified are unbelievable, untruthful, incredible.”

The State asserts that the entire statement was: “We put on a cabdriver. And I feel he is a reputable witness, a good witness, a truthful witness, and that he properly identified the person that robbed him on February 13, 1967. And that the two brothers, who testified, are unbelievable, untruthful, incredible. But that will be up to you to determine that.”

The State further asserts that the foregoing remarks were made “after the State had commented about the preposterous meeting of ‘John Garcia’ and the two brothers, their immediate comradeship, their gathering at 1:00 a. m., at a snow-covered park in February, the subsequent execution of the robbery, and the immediate disappearance of ‘John Garcia.’ ”

Defendant argues that “for the prosecutor to characterize the defense witnesses as untruthful in the absence of clear evidence of that in the record, of which there is none, is an abuse of his power and breach of his duty.” Defendant cites Berger v. United States, 295 US 78, 88-89 (1935), where the United States Supreme Court delineated the role of the prosecutor as that of a servant of the law, whose interest in a case is that “justice shall be done.” As such, “ ‘he may prosecute with earnestness and vigor,’ but he shall not strike foul blows.” There the court said (p 88):

“[Ijmproper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”

Defendant also cites a number of Illinois cases which held it was prejudicial error for the prosecutor to opinionate in the absence of evidence. People v. Fuerback, 66 Ill App2d 452, 214 NE2d 330 (1966); People v. Provo, 409 Ill 63, 97 NE2d 802 (1951); People v. Hoffman, 399 Ill 57, 77 NE2d 195 (1948).

After examining the entire argument, we believe the remarks complained of were based on evidence in the record and come within the guidelines set forth in People v. Williams, 26 Ill2d 190, 186 NE2d 353 (1962), where it is said (p 194):

“Taken in context with the entire argument, and measured by the evidence in the record, we cannot agree with defendant that these comments exceeded proper bounds. While it is improper for a State’s Attorney to make statements the only effect of which is to inflame the passions or develop the prejudices of the jurors without throwing light on the issues, he may nevertheless draw inferences unfavorable to defendant if based on the evidence, and he may reflect unfavorably on the accused and denounce his wickedness even to the point of invective. Further, it is always proper for the prosecutor to dwell on the evil results of crime and to urge fearless administration of the law.”

We find no prejudicial error here.

A review of the totality of the evidence here shows that the defendant received a fair trial, and there was substantial positive identification evidence to support defendant’s conviction beyond a reasonable doubt. We conclude the improper evidence heretofore discussed could not have affected the verdict.

For the reasons given, the judgment of the trial court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BURMAN.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Booker, Defendant-Appellant.
    Gen. No. 53,734.
    First District, First Division.
    October 13, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Robert A. Novelle and Robert Best, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURMAN.

Not to be published in full.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Lawson, Defendant-Appellant.
    Gen. No. 53,779.
    First District, Third Division.
    October 1, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for plaintiff-appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, John Lawson, was indicted on a charge of burglary. After having waived a trial by jury, he was found guilty and sentenced to a term of two to five years in the penitentiary. In this appeal, he argues that the trial court committed reversible error in the admission of hearsay evidence.

Donald Grys, a security officer employed by American District Telegraph Company, testified that on August 16, 1968, at about 3:00 a. m., he was sent to the B-C Distributing Company, 2210 South Michigan Avenue, Chicago. When he entered the building he heard unusual noises, walked over to a counter, peered behind it and saw two men lying on the floor. He drew his gun and ordered the men to come out. Grys described the lighting as “very good” and said that he saw the faces and clothes of the men as he marched them toward the front door. He noticed that Lawson was attired in a lavender short-sleeve shirt and dark blue pants and was wearing an earring in his left ear. As Grys stopped to telephone, the burglars attempted to flee. He ordered them to stop; Lawson did, but the other man kept going. Grys took Lawson outside and entered the squad car to call for assistance; as he did so, Lawson fled. Grys pursued Lawson down the alley, but was unsuccessful in catching him. Approximately two minutes later, a policeman returned Lawson to the scene and Grys identified him as the man he had seen in the building and subsequently chased.

Further investigation showed that entry into the building had been forced. The cash register and a bag of jewelry and watches had been placed on the floor behind the counter where Grys first saw the two men.

Officer Paul Caley of the Chicago Police Department testified that he encountered the defendant about three blocks from the scene of the burglary. He stated that Lawson was “huffing and puffing,” was dressed in a lavender shirt and dark pants, and had a yellow metal earring in his left ear. He returned Lawson to the South Michigan address, where Grys identified him.

Lawson testified that he had been out drinking on the night of August 16th; that he boarded a bus about 2:30 a. m., fell asleep, and got off the bus at about 18th or 19th and State. When he entered a nearby alley to urinate, the police officers arrested him. He denied having committed the burglary.

In his testimony Officer Caley said that the defendant answered the description given over the police radio of one of the men sought in the burglary:

“I heard a broadcast of two men who were wanted for a burglary at the B-C Distributing Company, 2210 South Michigan. This was placed over our police radio.
«
“I proceeded toward the immediate area, and at Cullerton and Wabash, one of the offenders who answered the description of the brief broadcast, I observed him at 22nd — or make it Cullerton and Wabash.”

The defendant’s counsel objected to this testimony as being hearsay and asked that it be stricken. The trial court overruled the objection.

The objection should have been sustained. The officer’s testimony was hearsay and was improperly corroborative of Grys’ testimony identifying the defendant as the perpetrator of the crime. People v. Turner, 91 Ill App2d 436, 235 NE2d 317 (1968). The error was harmless, however, since other competent testimony established Lawson’s guilt beyond a reasonable doubt. Grys had ample time to view Lawson under excellent lighting conditions; he described his attire and noted the earring. The defendant, short of breath, was arrested minutes later only a few blocks from the scene of the burglary. When Lawson was brought back to the scene, Grys positively identified him as the person whom he had viewed inside the building and who subsequently eluded him. The evidence clearly established the defendant’s guilt. The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    Alice O’Brien, Plaintiff-Appellant, v. Casey J. Stefaniak, Defendant-Appellee.
    Gen. No. 53,464.
    First District, First Division.
    October 13, 1970.
    Barbera & Friedlander, of Chicago (Earle E. Friedlander, Philip Z. Levinson, and Jerome Marvin Kaplan, of counsel), for appellant.
    Querrey, Harrow, Gulanick & Kennedy, of Chicago (John F. Skeffington and Charles F. Scott, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which the jury returned a verdict in favor of the defendant, and judgment was entered thereon. On appeal, plaintiff asserts prejudicial trial errors in that (1) the court erred in refusing to permit the testimony of a witness who was not named in pretrial interrogatories; and (2) the court erred in receiving into evidence a survey of the premises involved.

On February 22, 1962, between 8:00 and 8:30 p. m., plaintiff, Mrs. Alice O’Brien, fell and injured her ankle in front of the residence and office of the defendant, Casey J. Stefaniak, who conducted an income tax service from his home located on the west side of the street at 766 State Line Road, Calumet City. His wife Clara and son Robert helped in the business. The bungalow-type home faced east and was built back three or four feet from the public sidewalk. Concrete stairs led from the front door to the private walk that led to the public walk. The stairs and private walk were on the north half of the building. The public walk, which ran north and south parallel to State Line Road, was separated from that street by a parkway about two feet in width.

Plaintiff was employed during the day from 2:00 to 8:00 p. m. and had driven to the premises of defendant to make an appointment to have defendant prepare her income tax return. She arrived at defendant’s premises fifteen or twenty minutes after 8:00 p. m. and parked her car on the east side of the street, facing north and a little south of defendant’s entranceway. She left the engine running and her purse in the car.

Plaintiff, the only eyewitness, testified she was wearing rubber-soled nurse’s oxfords and crossed the street into the city sidewalk, and as she proceeded to the premises she stepped into a hole on the right side of the sidewalk leading up to the building. She heard her foot make a popping noise, felt a terrible pain, stumbled and landed in a sitting position on the city sidewalk. Her screams brought three people out of the Stefaniak building, Clara Stefaniak, Robert Stefaniak, and a customer, Norman Wondraski. They covered her with a blanket and tried to get her on her feet or get her to lie down, but she could not pry her foot loose. After some time, she was taken to a hospital in an ambulance and given emergency treatment. Her injuries were severe and required extensive hospitalization and therapy treatment. She had a permanent partial loss of foot movements, used a cane, and had constant pain in her right ankle.

Evidence depositions of Dr. Robert G. Husted and Dr. E. W. Johnson were introduced in evidence on behalf of plaintiff. Dr. Husted stated that the plaintiff was a patient of his for several years before the occurrence, and that he treated her in the emergency room of St. Margaret’s Hospital on February 22, 1962. He testified that plaintiff stated to a nurse, who wrote down what she said in a hospital record, that she slipped and fell on ice. Dr. Johnson of Mayo Clinic, Rochester, Minnesota, testified that she told him she fell on icy irregular steps as she was going to get her income tax figured.

Defendant’s witnesses included the three persons who came to the aid of plaintiff lying on the sidewalk. Mrs. Clara Stefaniak, wife of the defendant, testified that on February 22, 1962, around 8:30 p. m., she was in her husband’s office with her son, Robert, and a customer, Mr. Norman Wondraski. Upon hearing a woman’s screams from outside the house, the three ran outside and found the plaintiff in a sitting position on the public sidewalk nearest the parkway. She was facing the house, south of the Stefaniak’s sidewalk, about three feet north of the driveway on the southern edge of the Stefaniak property. Mrs. Stefaniak also testified that there were ten inches of snow on the parkway, but the sidewalks were clear.

Robert Stefaniak, son of defendant, testified that there were six to eight inches of snow and ice on the parkway, and that he found plaintiff in a lying position about two feet north of the driveway on the southern edge of the property, which was south of the Stefaniak’s sidewalk. The plaintiff was lying on the ground facing east (away from the house) with approximately one-half of her body on the public sidewalk and her legs and feet on the parkway. He further testified that upon asking her what had happened, the plaintiff said “she was running across the street to get some tax service done. She attempted to jump over this little patch of ice and of course caught her foot on the ice, thereby slipping and hurting herself.”

Mr. Norman Wondraski testified that he reached the plaintiff last and stated that she wasn’t lying down but was on the ground, halfway on the parkway, facing toward the house. She was positioned south of the Stefaniak’s sidewalk. He stated he asked her what had happened and that she said she fell, indicating “out toward the street.” She asked him to run across the street, turn her car off and bring her her purse, which he did. He said that the car was not directly across the street, but south of the Stefaniak’s home.

At the close of plaintiff’s evidence, and again when both sides rested, the court denied permission to plaintiff to call as a witness for plaintiff, Sergeant M. Jaranowski, an officer of the Calumet City police department, who had attended the scene after the occurrence and whose name had not been included by plaintiff in answering defendant’s pretrial twice-submitted interrogatories seeking the identity of plaintiff’s witnesses who had knowledge of the facts involved in the lawsuit.

After the second refusal of permission to call Officer Jaranowski, plaintiff made an offer of proof which stated that if Officer Jaranowski were permitted to testify, he would state that on February 22, 1962, shortly after 8:30 p. m., he attended the scene of an accident at 766 State Line Road, Calumet City. Upon arrival, he found Mrs. Alice O’Brien lying in front of 766 State Line Road. At that time she was in close proximity to the sidewalk belonging to the Stefaniak property, her head to the southeast and her feet to the northwest.

Initially considered is plaintiff’s contention that the court erred in refusing to permit Officer Jaranowski to testify. The original interrogatories filed on January 29,1963, were as follows:

“a) What are the names and addresses of all witnesses in the possession of the plaintiff who were occurrence witnesses to the accident described in plaintiff’s complaint?
“b) What are the names and addresses of all persons in the possession of the plaintiff having knowledge of other facts concerning the matters and issues in this cause?”

This was answered on September 16,1963, as follows:

“a) None other than Plaintiff.
“b) Mr. and Mrs. Stefaniak, their daughter and son, 766 State Line Road, Calumet City, Illinois; policeman and ambulance driver who were called to the accident, names and addresses may be obtained from St. Margaret’s Hospital in Hammond, Indiana.”

On July 7, 1967, the defendant filed the following supplemental interrogatory:

“State the names and addresses of all persons, of whom you, your agents or attorneys, have learned since September 16, 1963, who, according to their statements at least:
“a. Witnessed the occurrence specified in the complaint.
“b. Were present at the scene immediately before or immediately after the occurrence specified in the complaint.”

The answer to the supplemental interrogatory filed on September 8,1967, stated as follows:

“a. None.
“b. Office personnel.”

Plaintiff asserts that neither the original nor the supplemental interrogatory required the disclosure of the identity of the officer. Also, that “an examination of the original interrogatory will show that the word ‘relevant’ was stricken out but that no other change was made in the language. In Reske v. Klein, 33 Ill App2d 302, the Court held that an interrogatory requesting the identity of persons having knowledge of relevant facts was improper. In Fedors v. O’Brien, 39 Ill App2d 407, the Court held that a witness could not be excluded because his name was not included in the answer to such an interrogatory.” Plaintiff argues that the mere striking of the word “relevant” did not materially change the general nature of the information sought and was clearly the type of interrogatory condemned in the Reske and Fedors cases; that striking the word “relevant” did not make the interrogatory more specific so the witnesses to the particular events sought by the interrogator could be identified. Plaintiff further asserts that the officer’s identity had been ascertained only a few days before the trial.

Plaintiff further argues that there was a close question of liability, and that Officer Jaranowski’s testimony would corroborate the plaintiff’s as to why she fell. Plaintiff states that counsel for plaintiff offered to have plaintiff’s counsel interview Officer Jaranowski prior to his testifying, and that the defendant never claimed surprise, but the trial court mentioned it. Plaintiff contends that the trial judge followed an incorrect procedure by not allowing the witness to testify, and that he should have either recessed or declared a mistrial. Authorities cited include Rosales v. Marquez, 55 Ill App2d 203, 204 NE2d 829 (1965); Hansel v. Friemann, 38 Ill App2d 259, 187 NE2d 97 (1963); and Nelson v. Pals, 51 Ill App2d 269, 201 NE2d 187 (1964).

In Rosales v. Marquez, the court stated (p 207):

“The nonimposition of the sanction has been approved in cases where there was no surprise, or the surprise was minimal, or where the surprise and the harm caused by it were alleviated by giving the adverse party an opportunity to talk to the witness prior to his testifying, or where the witness’ testimony was merely cumulative and corroborative.”

In Hansel v. Friemann, the court said (p 266):

“In the event that it appears to the court that substantial injustice would be done by allowing the witness to testify, or if it appears that the offended party would have chosen different jurors or procured other evidence, it may even be proper for the court to declare a mistrial. This approach, we feel, will allow for the elimination of the surprise, and will still permit the witness’s ultimate testimony and thus further the policy of presenting before the trier of facts all of the truth which may be obtainable.”

In Nelson v. Pals, the court stated (p 274):

“The proof in the case establishes a very close question of liability. Any additional facts could materially affect the verdict, if not bring about a contrary finding. The question of the exclusion of Loren Van Zuidam as a witness, in our opinion, is crucial.”

Defendant states that the original interrogatory submitted on January 29, 1963, did not ask for a list of witnesses possessing knowledge of “relevant” facts. Defendant asserts the word “relevant” was deleted and in plaintiff’s answers to the interrogatory the question was retyped and the word “relevant” was omitted.

Defendant maintains that the proposed testimony of Officer Jaranowski would be of little assistance to the plaintiff and would corroborate a fact not in need of corroboration and supply testimony not relative or probative of the issues presented. Defendant argues that the court’s ruling excluding Officer Jaranowski was a proper exercise of discretion. “The court found that the introduction of the witness took defendant by surprise, that the witness knew nothing about the facts at issue in the case, and that plaintiff had already testified regarding the place where she was lying, and that this was not in issue. A review of plaintiff’s offer of proof regarding proposed testimony of Officer Jaranowski bears out the court’s findings. The officer would testify only as to the position of plaintiff after the accident and nothing else. The record fails to indicate the probative nature of such testimony and likewise fails to indicate the necessity of corroborating Mrs. O’Brien on this nonessential and peculiarly cumulative point.”

Both sides rely on Rosales v. Marquez, 55 Ill App2d 203, 204 NE2d 829, where it is said (p 208):

“An interview with a witness shortly before he takes the stand is not always a satisfactory substitute for a pretrial deposition. A deposition not only permits a thorough examination under oath but also provides a provable record that can be used for impeachment purposes; it may disclose facts that should be investigated, information that should be verified, leads to other witnesses that should be pursued or aspects of the witness’ background that should be checked; it may also reveal data about the witness which would influence the selection of jurors.”

After considering this record and the authorities submitted by both sides, we find the interrogatories submitted were proper and did not call for a conclusion of the type prohibited in Reske v. Klein and Nelson v. Pals. The exclusion of Officer Jaranowski’s testimony was not an abuse of discretion by the trial judge. Plaintiff states that poor investigation was the reason why Sergeant Jaranowski had not been previously named. The trial was under way at the time and the offer of proof came after the close of all the evidence. The ruling was a proper exercise of sound discretion and within the guidelines set forth in Reske v. Klein. The pronouncements made in Dempski v. Dempski, 27 Ill2d 69, 187 NE2d 734 (1963), apply here. There the court said (p 77):

“The determination of whether or not there was wrongful or inexcusable noncompliance with the discovery order was, in the first instance, the responsibility of the trial judge, and from the record before us it does not appear that his discretion was improperly exercised.”

Next considered is plaintiff’s contention that the court erred in receiving into evidence a survey of the property involved. The survey showed that the Stefaniak private walk, which led from the public sidewalk to the entrance, encroached on the City property for about five inches. Prior to the court’s ruling that the survey was admissible, an extended discussion was had outside the presence of the jury. Plaintiff asserts that photographs of the property which were introduced into evidence by plaintiff and defendant adequately represented the premises, and that the survey added nothing. Plaintiff states that the oral descriptions by the witnesses who testified as to the exhibits were plain, and there was no necessity for any further explanation or illustrations used in the survey.

Plaintiff further contends there was no question that the defendant had notice of the defect in the premises, since he admitted that the broken sidewalk had been present for more than a year.

Plaintiff argues that “the reviewing courts have held that where the oral description is plain and no necessity for explanation or illustration appears, or where the testimony has given the jury everything necessary to a full understanding of the issues so that such documentary evidence could not materially benefit the jury, the map, diagram or other document should be properly excluded.”

The authorities cited by plaintiff to support her contention that the survey should be excluded include Cooley v. Makse, 46 Ill App2d 25, 195 NE2d 396 (1964); Moore v. Jansen & Schaefer, 265 Ill App 459 (1932); and Smith v. Sanitary District, 260 Ill 453, 103 NE 254 (1913). We have examined them and they are not persuasive here.

We conclude that the introduction of the survey into evidence was not error. The issue here is whether plaintiff fell because of the defect in defendant’s sidewalk and whether this defect was the proximate cause of her injury, or whether she fell because of the snow and ice on the property. The pronouncements made by the Illinois Supreme Court in Department of Public Works v. Chicago Title & Trust Co., 408 Ill 41, 95 NE2d 903 (1951), apply here. There the court stated (p 52):

“Plats, photographs, drawings and diagrams, which illustrate the subject matter of testimony, may be received into evidence for the purpose of showing a particular situation, explaining the testimony or enabling to apply the testimony more intelligently to the facts shown.”

After examining this record, we find there is no merit in plaintiff’s contention of prejudicial trial errors.

For the reasons given, the judgment is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: ME. JUSTICE ADESKO

text:
    Georgette Messenger and David S. Shapiro, Executors of the Last Will and Testament of Elmer Messenger, Deceased, and Georgette Messenger, Individually, Plaintiffs-Appellees, v. Milton D. Rutherford, Defendant-Appellant.
    Gen. No. 53,832.
    First District, First Division.
    October 13, 1970.

      Myer H. Gladstone, of Chicago, for appellant.
    Morgan, Lanoff, Cook & Madigan, of Chicago (Samuel, M. Lanoff and John A. Cook, of counsel), for appellees.
   ME. JUSTICE ADESKO

delivered the opinion of the court.

This appeal is from a judgment order of December 13, 1968, wherein the trial court made the following disposition: Entered partial summary judgment against the defendant in favor of plaintiffs-executors in the sum of $15,185; entered summary judgment against the defendant in favor of Georgette Messenger, individually, in the sum of $2,903.78; granted the plaintiffs’ motion to strike certain portions of defendant’s amended answer; and allowed the executors to withdraw a portion of their complaint over defendant’s objections. Defendant seeks to reverse the above portions of this order. The judgment order provided that the remaining issues of material facts be tried as contested issues.

This cause was begun in February of 1963, by the executors of the Estate of Elmer Messenger and by his widow for accounts stated to the defendant which were unpaid. The complaint alleged that the deceased and defendant had entered into separate oral agreements, from July 1958 to November 1958, relating to five oil and gas wells in the State of Oklahoma. These wells were known as Primm No. 1, Carder No. 1, Lloyd No. 1, Carpenter No. 3 and Sherry No. 1. Plaintiffs alleged that the agreements allowed defendant to purchase an undivided fractional interest for a fixed sum and if a productive well were discovered, then the defendant was to pay a fixed sum for original equipment, a proportionate share of operating costs and additional equipment expenses, and the defendant would receive a proportionate share of the income from the producing well. Plaintiffs alleged that prior to Elmer Messenger’s death, a just and true account was stated between the deceased and the defendant in the sum of $29,000 for the agreed fixed purchase price of defendant’s fractional interest in these five wells. The executors made an additional claim of $1,525.71, as an account stated for defendant’s proportionate share of operating expenses incurred from May 1, 1960 to March 31, 1961. This claim covered eleven wells, among which were five wells of the first claim included. The individual claim of Georgette Messenger, wife of the deceased, was for an account stated against the defendant for a proportionate share of the operating expenses of twelve wells from April 1, 1961 to March 31, 1962. This claim amounted to $2,903.78. All of these claims were evidenced by statements to the defendant which were attached as exhibits to the complaint.

Defendant’s answer admitted the oral agreements with the deceased, denied that defendant was to pay a fixed sum for his fractional interest in the wells and denied that he was to pay a proportionate share of the actual expenses of drilling, completing and equipping the wells. The answer further stated that by virtue of the oral agreements, the deceased was made defendant’s agent and that deceased owed defendant a fiduciary duty. It also alleged that the deceased failed to disclose his ownership and that of his wife and daughter in these wells; that deceased and his family failed to pay their proportionate share of expenses; that the deceased breached the several oral agreements by not charging the defendant for his proper portion of the actual costs; that the stated accounts overcharged the defendant by various amounts and that defendant’s actual share of the cost was an amount certain. Thus, defendant’s answer admitted an amount owed on the account stated but also claimed an amount as a counterclaim for overcharges on the five wells. No answer was made to the other claims asserted in the complaint.

Along with the answer, the defendant filed a counterclaim alleging that the deceased had breached other oral agreements with respect to the twelve other well drilling operations (none of the five wells of the executors’ first claim were involved), by overcharging the defendant by approximately $65,000. By reason of these overcharges, the defendant claimed a net indebtedness from the plaintiffs.

The plaintiffs moved to dismiss the counterclaim on the basis that the defendant’s claims were barred by the provision of the Probate Act, section 204 (Ill Rev Stats, c 3, § 204 (1969)). It appears that letters testamentary were issued on April 24, 1962, and the nine-month period for filing claims expired on January 24, 1963. Plaintiffs also moved to strike defendant’s answer and counterclaim. After a full hearing, the trial court on October 13, 1965, dismissed defendant’s counterclaim and struck certain portions of defendant’s answer. The defendant appealed this order and this court affirmed the dismissal of the counterclaim in Messenger v. Rutherford, 80 Ill App2d 25, 225 NE2d 94 (1967). In that appeal, the defendant contended that deceased’s fraud tolled the application of section 204 of the Statute as to filing of claims. Defendant did not argue his right to counterclaim against after-discovered assets of the estate. This court held that the counterclaim was barred by section 204. That part of the order striking portions of defendant’s answer was not considered since we concluded it was not a final and appealable order.

Thereafter, the plaintiffs moved for summary judgment on September 27,1967, seeking a judgment order for the amounts which defendant admitted owing on the five wells and for recovery of the amounts that defendant did not deny in his answer. While the plaintiffs’ motion was pending, the defendant obtained leave to file an amended answer. The amended answer contained allegations similar to those in the original answer. In the first four paragraphs, the defendant again asserted his contention as to his agreement to pay a proportionate share of the actual drilling costs of the five wells and that deceased was the defendant’s agent and owed a fiduciary duty to defendant, which the deceased breached. Defendant repeated allegations of overcharges made by deceased and again admitted his indebtedness for certain sums on the five wells that were subjects of the 1958 oral agreements. There were some minor differences which are not relevant to the issues. The fifth paragraph alleged that the deceased improperly collected net income from these five wells, of which the defendant claimed a portion. The remaining paragraphs of the defendant’s amended answer alleged that in an accounting with the defendant the plaintiffs owed the defendant the sum of $32,448. This figure was the result of alleged breaches of the oral contracts by deceased regarding the twelve drilling operations that had been asserted originally in defendant’s counterclaim. These allegations were substantially similar to the counterclaim and the defendant asserted that plaintiffs owed him a net indebtedness over and above the amounts they admitted owing as to the five wells of the executors’ original complaint. Defendant made no reply to the individual claim of Georgette Messenger.

On December 4, 1967, plaintiffs filed a motion to strike the amended answer. Plaintiffs alleged that those paragraphs dealing with the overcharges on the five wells that were the first claim of an account stated contained allegations of other co-owners’ interests, their respective contributions and other matters unrelated to issues of this suit. The remaining paragraphs were sought to be stricken on the ground that they were matters of setoff and counterclaim which were barred by the previous order of October 13, 1965 and its subsequent affirmance by this court on the previous appeal. Plaintiffs concluded by seeking judgment on the amounts admitted by the defendant.

The defendant filed an affidavit in opposition to the plaintiffs’ motion for summary judgment, which contained substantially the same averments found in the defendant’s amended answer. The defendant persisted in asserting his right based on the fraud of the deceased as to the five wells of plaintiffs’ first claim and that this alleged fraud allowed defendant to assert his claim for an accounting as to the other twelve wells. Plaintiffs reasserted their right to summary judgment by an additional affidavit asserting that defendant had admitted his indebtedness of $15,185 in both the amended answer and affidavit. Further, plaintiffs stated that the defendant’s contention in his amended answer and affidavit as to the amounts claimed from plaintiffs on the other twelve wells were barred by section 204 of the Probate Act, as was previously determined by the trial court and affirmed on appeal.

On March 5, 1968, the plaintiffs filed a motion to withdraw two paragraphs of the original complaint. This was the executors’ claim of $1,525.91, for defendant’s proportionate share of the operating expenses of various wells during May 1, 1960, to March 31, 1961. Plaintiffs also renewed their motion for summary judgment and filed an additional affidavit supporting said motion. The defendant filed additional counteraffidavits and objections to plaintiffs’ various motions. In one of defendant’s affidavits he alleged that he had a right to assert a counterclaim until a determination was made as to whether the deceased’s estate contained any after-acquired assets not included in the inventory filed in Probate Court. By way of affidavit, plaintiffs asserted that there were no non-inventoried assets of the deceased’s estate.

Upon this state of the record, the trial court entered the judgment order of December 13, 1968. The defendant contends that the trial court acted inconsistently and ambiguously in striking paragraphs 4(d) through 4(h) of the amended answer, which asserted his claim for overcharges as to the executors’ claim upon the five wells covered by the 1958 oral agreements. It appears from the record that the issues raised by these paragraphs are part of the claim as to the controversy over the terms of the oral agreements and the question of whether defendant was charged the proper amount on said agreements. By the trial court’s order, that claim is still pending except for those amounts for which partial summary judgment has been rendered. We are of the opinion that that part of the order dismissing paragraphs 4(d) through 4(h) is not a final and appealable order.

Even though we will not consider the merits of striking that portion of defendant’s answer, certain contentions of the defendant merit this court’s consideration. Defendant argues that the language of the order “that Paragraphs 4, 4(d), 4(c), 4(f), 4(g) and 4(h) of the amended answer be and they are hereby stricken” meant that the order disposed of all of that paragraph. We are convinced that the inclusion of “Paragraph 4” was a mistake. Plaintiffs’ motion to strike only sought to eliminate paragraphs 4(d) through 4(h) of the amended answer. Furthermore, in the order of December 13, 1968, the trial court stated that one of the issues was “if the agreement was as alleged by the defendant, the defendant was billed an appropriate portion of the cost so applicable to the wells set out in said paragraphs.” Defendant argues this language demonstrates inconsistency. However, the trial court also found that the defendant’s amended answer put in issue the terms of the said oral agreements. These allegations are contained in paragraphs 3, 4(a) through 4(c). This finding demonstrates that paragraphs 4(a) through 4(c) remained at issue by the trial court’s ruling and were not stricken by the judgment order.

Another inconsistency alleged is that in granting plaintiffs’ motion to strike defendant’s answer (as to paragraphs 4(d) through 4(h), and then granting the executors’ summary judgment for the debts admitted in those paragraphs, the trial court gave plaintiffs the benefit of those allegations to which they were not entitled if the amended answer were stricken. We find no merit in this contention. Defendant’s allegations made in his amended answer and affidavit are judicial admissions. The record is uncontradicted that as to the oral agreement for the five wells upon which the executors predicated a claim for an account stated the defendant admitted by verified pleadings that certain sums were owed on an account. These statements stand as judicial admissions upon which the plaintiff sought partial summary judgment. The rule is that “allegations contained in a pleading are judicial admissions and are conclusive against the pleader provided the pleading has not been amended, abandoned or withdrawn.” Precision Extrusion, Inc. v. Stewart, 36 Ill App2d 30, 50, 183 NE2d 547 (1962). Defendant’s admission of debt in the amount of $15,185.00 by his pleadings requires no proof by the plaintiffs. Rosbottom v. Hensley, 61 Ill App2d 198, 209 NE2d 655 (1965); Hudson v. Augustine’s, Inc., 72 Ill App2d 225, 218 NE2d 510 (1966).

Defendant also argues that the trial court erred in entering summary judgment since the defendant had imposed an arguable defense, made in good faith. Thus, defendant contends the plaintiffs’ right to summary judgment was not free from doubt. The purpose of the summary judgment is to determine whether an issue of fact exists between the parties. Sampson Co. v. Mandel Bros., Inc., 3 Ill App2d 92, 95, 120 NE2d 571 (1954). The statute itself provides that a party may seek summary judgment “for all or any part of the relief sought.” Ill Rev Stats, c 110, § 57 (1969). Thus, our Civil Practice Act provides for partial summary judgment which is what plaintiffs have received. The defendant has properly argued that he had a valid defense based on controverted facts. In State v. Illinois Cent. R. Co., 246 Ill 188, 92 NE 814 (1910), our Supreme Court stated, at pages 241-42:

“A stated account is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. ... It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff must either charge fraud or state particular errors. ... ‘A person seeking to open a settled account must specify in his claim either errors of considerable extent, both in number and amount, or at least one important error of a fraudulent nature.’ ”

The record in this case reveals that defendant has successfully put into issue these principles discussed in the Illinois Central case, supra. However, the fact remains that defendant’s pleadings have also admitted certain debts which are no longer an issue in the case. Thus, the judgment for the executors in the amount of $15,185 was correct and there is no error.

With regard to the summary judgment granted to Georgette Messenger on her individual claim of $2,903.-78, we hold that no error was committed in that ruling. The record discloses that throughout the long duration of this litigation, the defendant has not denied the allegations regarding the account stated on that claim. Accordingly, the trial judge correctly found that no issue of material fact existed on that claim and the summary judgment was properly granted.

Defendant contends that the trial court erroneously struck paragraphs 5 through 20 of the amended answer. The trial court found that the allegations were not germane and that they were barred by the prevous order of court which was affirmed in Rutherford v. Messenger, 80 Ill App2d 25, 225 NE2d 94 (1967). On that appeal, we affirmed the dismissal of defendant’s counterclaim as it applied to the decedent’s assets inventoried within the nine month period following the issuance of the letter’s testamentary. This court also stated, at page 29:

“Where a claim against an estate is filed and allowed after nine months from the granting of letters, the order or judgment allowing the same must be special, ordering payment only out of assets which have not been inventoried within nine months from the issuance of letters or accounted for by the administration.”

The amended answer in paragraphs 5 through 20 is subject to the same limitations that we expressed with regard to the previous dismissal of defendant’s counterclaim. These paragraphs of the amended answer are the same overcharges asserted by the defendant, with the addition of paragraph 5 that states defendant’s claim for his share of income from certain producing wells.

Defendant argues that his amended answer and affidavit relating to the subject matter contained in paragraphs 5 through 20 pleaded a cause of action in accounting between the executors that would necessitate an opening of the account stated and justify a recovery by the defendant in excess of the executors’ claim. Clearly, these claims are matters of setoff. Defendant’s recovery is barred as to the assets inventoried in decedent’s estate in the first nine months after issuance of letters testamentary by section 204 of the Probate Act. Defendant’s only recourse would be a recovery against assets not previously inventoried in decedent’s estate.

In an affidavit dated March 5, 1968, the plaintiffs asserted that no additional assets were inventoried after the expiration of the nine-month period for filing claims, that no such assets exist, that the defendant had not demonstrated the existence of any after-acquired assets and that there is no probability of discovering such assets. One of defendant’s responsive pleadings alleged that defendant had the right to prove the allegations of setoff contained in the amended answer (paragraphs 5 through 20) until the probate court could determine whether or not any after-inventoried assets existed. Defendant alleged that another person had filed a petition in probate court in that regard and that defendant also contemplated filing a similar petition to seek the return of certain assets to the decedent’s estate from the executors.

This argument is now presented by defendant in this court. It begs the question. Assuming the defendant was able to prove the allegations of setoff in his amended answer, his only recovery would depend on the findings of a court that after-inventoried assets existed. Defendant’s amended answer does not plead the existence of such funds. By allowing the defendant the opportunity to plead and prove the allegations of paragraphs 5 through 20 before it is determined that any funds exist for the satisfaction of that judgment would be ludicrous and a waste of judicial effort. We agree with the trial court’s finding that the allegations of these amended answers were not germane to the issues and that those allegations under the present state of the record do not state a cause of action for which any recovery may be had.

Defendant urges error when the trial court allowed the plaintiffs to withdraw a portion of their complaint as to certain operating expenses allegedly unpaid by defendant. The contention is that under section 52 of the Civil Practice Act (Ill Rev Stats, c 110, § 52 (1969)), the pleading of a counterclaim means that the plaintiff cannot voluntarily dismiss without the consent of the defendant. This argument is without merit. The case of People v. American Nat. Bank & Trust Co., 32 Ill2d 115, 203 NE2d 897 (1965), declares that a plaintiff’s right to voluntary dismissal is not restricted where the counterclaim fails to state a cause of action against the plaintiff. In light of our decision, regarding the dismissal of paragraphs 5 through 20, we conclude that the trial court properly allowed plaintiffs’ motion to withdraw that claim.

For the reasons given, the judgment order of December 13,1968, is affirmed.

Judgment affirmed.

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


text:
    Richard Jordan, Plaintiff-Appellee, v. Don Morrissey, Individually and as Agent of S. Rosen and S. Rosen, Defendants-Appellants.
    Gen. Nos. 54,231, 54,499. (Consolidated.)
    First District, Third Division.
    October 15, 1970.

      Medard Narko, of Chicago, for appellant.
    Donald G. Zerwer, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In this personal injury action arising out of a vehicular collision in downtown Chicago, a judgment for $750 was entered in favor of the plaintiff, Richard Jordan. The defendant maintains that Jordan’s testimony regarding the nature of his illness, his rebuttal testimony and his counsel’s closing argument constitute reversible error.

In the late afternoon of December 13, 1963, Jordan, a taxicab driver, was driving on Madison, a westbound, one-way street. He was in the southmost lane of travel, the one immediately adjacent to the cars parked along the south curb. As he drove the cab through the intersection of Madison and Clark Streets, he noticed to his left two cars parked behind a bread truck and several in front of it. When he was half-way past the truck, it pulled out, tore the rear quarter-panel and fender off his cab and hooked onto the cab’s bumper.

Jordan was thrown forward over the steering wheel, hitting his head on the visor. He testified that following the accident he experienced sharp pains in his back and legs. He went to see a physician; x rays were taken and he received some heat treatments. Over defense counsel’s objections, his attorney asked him: “What did the doctor tell you what was wrong with you or with your back as a result of the accident?” Jordan replied: “The doctor told me I had a slipped disc.” He testified further that his average weekly earnings as a cabdriver were $125; that he lost three weeks of work and that shortly after his return to work his employment with the cab company was terminated because he was unable to perform his duties due to the accident.

The driver of the truck testified that he was making deliveries in the downtown area for Rosen’s Bakery and had parked his panel truck along the south curb of Madison Street, approximately 25 feet west of Clark. After he reentered the truck to drive away, he looked out of his rear-view mirror and noticed cars coming in the two northernmost lanes, but none coming in the lane nearest to him. The implication of this was that Jordan was changing lanes just as the truck moved from the curb. He said that after the accident both he and Jordan, in response to a police officer’s inquiry, stated that they were not hurt.

Jordan offered no medical testimony other than his own. His statement that his doctor told him he had a slipped disc was incompetent hearsay evidence and the objection to it should have been sustained. Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 126 NE2d 731 (1955). The error was corrected, however, later in the trial when the court ordered the statement stricken and instructed the jury to disregard it. Under the circumstances of this case, this was sufficient to alleviate any prejudice to the defendant. Mattice v. Klawans, 228 Ill App 126 (1923).

A payroll supervisor for the taxicab company, called by the defendant as a witness, testified that the reason Jordan’s employment with the company came to an end was not due to his health, but to his low bookings and revenue shortages. In rebuttal, Jordan gave the testimony the defendant claims was error. He explained that he did have a revenue shortage the day he was fired, but that it occurred because he used the cab to take his wife to the hospital to have a baby.

The defendant terms Jordan’s rebuttal testimony “patently prejudicial” and “self-serving sympathetic information.” The defendant has no reason to complain; he brought this on by his own tactics. It was during cross-examination by the defendant that Jordan falsely stated that his leaving the cab company was due to ill health caused by the accident. It is apparent from the record that the defendant wished to elicit this testimony because he was prepared to impeach it. The defendant states that Jordan’s rebuttal testimony was improper because the sole relevant and material issue was whether he was forced to leave his position for reasons of ill health. The defendant is correct, this was the issue, and the defendant was within proper bounds in presenting evidence that Jordan did not leave his job for health reasons; but he had no right to go beyond this and show that Jordan was discharged for dishonesty. Once this collateral issue was injected into the case, it was Jordan’s privilege to meet it. His explanation, that the reason the meter indicated more revenue than he accounted for was because he used the cab to take his wife to the hospital, was far less damaging to the defendant than the defendant’s accusation of dishonesty was to him.

The court overruled Jordan’s objections to the defendant’s testimony concerning his discharge but sustained the defendant’s objection to his attempted explanation. This upset Jordan’s attorney so much that it colored his final argument. So many improper remarks were made by him that a new trial must be had. For example:

“ [T]his case stinks. It stinks for a couple of reasons. It stinks because there is a dispute as to the lost time testimony . . . most of the dispute has come because [of] in my opinion, inadmissible evidence, and certainly prejudicial evidence.”
it
“I told you already how I feel that this shouldn’t be before your eyes or ears .... I submit that the termination of his employment by shortages . . . has no bearing or issue in this case.”
tt
“Now, I’m going to . . . ask you for some money in this case despite the fact that it stinks .... I state to you under oath and as a lawyer that I don’t myself receive any part of this judgment. I’m employed by . . . .”
it
“I suggest that this [$750.00] is a fair and reasonable element [amount] of damages that my experience and talking with others has led me to believe.”
tt
“This case took a much different turn as the trial proceeded, as I felt it would when we started this case, that it stinks. The doctor refused to come in to testify.”
it
“Well, I’m going to tell you . . . that Mr. Morrissey [the truck driver] will not have to pay this judgment himself .... So there is no reason for you to be sorry for Mr. Morrissey .... I don’t again blame this on Mr. Morrissey but other people. Now, why do we have to get into a lawsuit like this? I assume that now you know some of the true facts of the case, some of you might wonder why we get this far. Well, there are two legitimate issues here in all fairness to Mr. Morrissey and whoever is on the other side of the case.”
Jordan’s Attorney: “Well, your Honor, I don’t know what [defense counsel] is trying to get at as trying to say that Mr. Morrissey — if he’s going to say Mr. Morrissey has to pay this judgment, I wish he’d say so then because he doesn’t and he knows it.”
Defense Counsel: “I object.”
Jordan’s Attorney: “I don’t know why we have to kid ourselves.”
“The fact that he terminated for reasons other than health was the only issue, and it was not brought into this case by us or myself or Mr. Jordan. It was brought in by other people. And when I take [defense counsel] out of the picture, I don’t think it’s too hard to see who brought it in. In fact it’s not hard to see at all.”

The attorney committed error in criticizing the rulings of the court and in talking law to the jury; in stating that he would not be compensated from the damages awarded Jordan and what those damages should be based on his experience and conversations with others; in informing the jury why he had no corroborative medical testimony; in stating that Morrissey would not have to pay the judgment, and in persistently intimating the existence of insurance.

The rule in this State is that the existence of insurance coverage is not to be presented to the jury in a personal injury case. Horst v. Morand Bros. Beverage Co., 96 Ill App2d 68, 237 NE2d 732 (1968); Fitzgerald v. Brown, 86 Ill App2d 289, 230 NE2d 80 (1967). Whether Morrissey had to pay the damages and whether the insistence of “other people” forced this lawsuit to trial were in no way relevant to the question of Morrissey’s liability. See Ferrer v. Vecchione, 98 Ill App2d 467, 240 NE2d 439 (1968).

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Andrew J. Horwitz, Plaintiff-Appellant, v. Donna Horwitz, Defendant-Appellee.
    Gen. Nos. 53,703, 53,465. (Consolidated.)
    First District, Fourth Division.
    October 21, 1970.

      Jerome Berkson, of Chicago, for appellant.
    Stanley F. Kaplan, of Chicago, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

This is a consolidation of appeals by plaintiff. The first appeal is taken from an order directing plaintiff to pay $600 to defendant’s attorney to defend a post-divorce decree petition by plaintiff for modification of visitation rights prior to a hearing on that petition. The second appeal is taken from an order directing plaintiff to pay $1,000 to defendant’s attorney to defend the initial appeal.

After a contested hearing, the plaintiff was granted a divorce on the grounds of adultery on July 1, 1965. The decree awarded plaintiff custody of the parties’ four minor children with defendant afforded visitation rights. The visitation rights were subsequently limited and modified on July 26,1967.

On September 11, 1967, plaintiff filed a petition to deny defendant all visitation rights alleging specific instances where defendant jeopardized the life and well being of the children while they were in her custody pursuant to her rights of visitation. Defendant responded to this petition on October 17, 1967, denying the material allegations as set forth in the petition. On January 22, 1968, defendant moved for a change of venue from Judge Suria, who granted the motion, and sent the matter to Judge Hunter, Presiding Judge of the Divorce Division, for reassignment. Defendant’s motion listed Judges Hunter, Iseberg and Drymalski as acceptable to defendant.

On February 15, 1968, defendant filed a petition seeking attorney’s fees and costs in defense of plaintiff’s pending petition of September 11, 1967, and attorney’s fees and costs for the taking of evidence depositions. On March 8, 1968, Judge Hunter entered an order directing plaintiff to pay $1,500 to defendant’s attorney for defense of plaintiff’s petition. This order was subsequently vacated on April 24, 1968, by Judge Hunter and leave was granted defendant to file an amended petition for fees and costs. Defendant’s amended petition recited a schedule of actual and anticipated hours and effort by her counsel amounting to $3,480. Plaintiff responded to this amended petition on May 3, 1968, denying defendant’s right to fees and costs.

Pursuant to defendant’s motion for change of venue of January 22, 1968, the case was assigned to Judge Plusdrak. However, on May 14, 1968, defendant moved for a change of venue from Judge Plusdrak. Defendant’s motion listed Judges Plusdrak, Iseberg, Wells and Wham as unacceptable to defendant. Judge Plusdrak granted the motion and sent the matter to Judge Hunter for reassignment. Judge Hunter then assigned the case to Judge Friedlund.

On July 25, 1968, Judge Friedlund, without hearing any evidence, entered an order directing plaintiff to pay defendant’s attorney $600 for defense of plaintiff’s petition of September 11, 1967. Plaintiff filed a notice of appeal from this order on August 20,1968.

On September 26, 1968, defendant petitioned for fees and costs to defend plaintiff’s appeal. Plaintiff moved to strike this petition on September 30, 1968, denying defendant’s right to fees and costs. However, on October 25, 1968, the court ordered plaintiff to pay defendant’s attorney $1,000 to defend plaintiff’s initial appeal, again without hearing any evidence. Plaintiff appeals this order also.

Plaintiff initially contends that the trial court exceeded its “jurisdiction” in ordering him to pay $600. to defendant’s attorney for defense of plaintiff’s post-decretal petition. Plaintiff does not question the right of the trial court to award attorney’s fees in post-divorce decree proceedings in the trial court, only the court’s power to award them before an adjudication on the merits.

It has been held that attorney’s fees may be awarded in post-decree proceedings in the trial court to modify the provisions of the decree. Martin v. Martin, 332 Ill App 661, 76 NE2d 353 (1947). The allowance of said fees depends upon the peculiar circumstances of the individual case. Mabbatt v. Mabbatt, 78 Ill App2d 455, 223 NE2d 191 (1967). Where the proceedings are brought to modify the custodial provisions of the decree, the husband is liable for legal services rendered necessary to properly present the needs of the children to the court. Pike v. Pike, 123 Ill App 553 (1905). However, where the custodial modification is sought primarily for the convenience of the parties and not the welfare of the children, the attorney’s allowance will be disallowed. Gerson v. Mathes, 252 Ill App 607 (1929). It has also been held that an additional factor to be considered is the identity of the party precipitating the circumstances which necessitated the incurrence of attorney’s fees. Moore v. Black, 10 Ill App2d 339, 134 NE2d 347 (1956). Therefore, in Mabbatt, supra, where the welfare of the children was involved and the husband’s conduct necessitated the legal proceedings, it was held that the court properly awarded attorney’s fees to the wife.

However, the attorney’s fees in the above cases and others cited by the parties were not awarded in advance, but only after a full adjudication on the merits of the post-decretal petition. We believe this is as it should be, and therefore, find that an allowance of attorney’s fees before such a determination of the circumstances, as in the present case, is premature and an abuse of discretion.

Plaintiff next contends that the trial court erred in ordering plaintiff to pay $1,000 to defendant’s attorney for defense of plaintiff’s initial appeal.

The only authorization for attorney’s fees to defend an appeal in divorce matters is section 15 of the Divorce Act (Ill Rev Stats 1965, c 40, § 16) which in its pertinent part provides:

“The court may, in its discretion reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case. In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and such equitable alimony during the pendency of the appeal as to such court shall seem reasonable and proper.”

However, this provision by its express terms applies only to matters culminating in the original divorce decree and does not authorize an allowance of attorney’s fees to defend an appeal from a post-decretal order. Therefore, the trial court erred in ordering plaintiff to pay defendant’s attorney an allowance for defense of plaintiff’s initial appeal.

We note that plaintiff also complains that the trial court erred in granting defendant’s changes of venue, particularly because of the absence of any apparent authority whatsoever for a second change of venue. However, since we have determined to reverse the trial court’s orders granting the attorney’s fees, we need not discuss the contention.

The orders directing plaintiff to pay defendant’s attorney the sums of $600 for defense of the petition filed on September 11, 1968, and $1,000 for defense of the initial appeal are reversed and the cause is remanded.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.

       On September 21, 1967, Judge Suria entered an order denying defendant attorney’s fees and expense money for defense of plaintiff’s petition resulting in the July 26, 1967, order.


author: MR. JUSTICE McNAMARA

text:
    Capitol Records, Inc., Plaintiff-Appellant, v. Gary A. Spies, Defendant-Appellee.
    Gen. No. 54,315.
    First District, Third Division.
    October 22, 1970.
    Rehearing denied November 12, 1970.
    Arvey, Hodes & Mantynband, of Chicago (Sidney R. Zatz, J. Herzl Segal, and Jack H. Oppenheim, of counsel), for appellant.
    Julius Lucius Echeles, Jo Anne F. Wolfson, Frederick F. Cohn, and Alan A. Ackerman, of Chicago, for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff Capitol Records, Inc. filed a complaint in the Circuit Court against defendant Gary A. Spies, doing business as Tape-A-Tape, alleging that Spies was pirating certain performances from recordings made by Capitol and praying that he be temporarily and permanently enjoined from such further action. After a hearing, the trial court denied Capitol’s motion for a temporary injunction, and it brings this interlocutory appeal. Ill Rev Stats 1969, c 110A, § 307(a)(1). The issue on appeal is whether Spies may be enjoined from making and selling tapes of Capitol’s recordings.

Capitol’s complaint alleged that it was a California corporation engaged in the manufacture and sale of phonograph records and magnetic tapes. For this purpose, it had entered into contracts with various performers. Pursuant to these contracts and at great expense to itself, Capitol had embodied the performances of these various artists upon master recordings. It then manufactured copies for sale from these master recordings. The sale of each recording created liabilities on the part of Capitol to pay royalty fees to the artists and others who own various copyrights. To promote the sale of these recordings, Capitol expended large sums in advertising.

The complaint went on to state that Spies was engaged in pirating and appropriating these performances onto magnetic tapes, and subsequently selling them for a profit. Spies used the names of the performing artists on his tapes. He had not obtained any permission or a license to copy these performances from Capitol, and had paid nothing to Capitol for the appropriation. The complaint stated further that the above acts by Spies were calculated to take unlawful advantage of Capitol’s goodwill, and constituted unfair competition and wrongful appropriation of the work, skill and expenditures of Capitol. The above acts by Spies also caused a likelihood of confusion as to the source of the tapes, and were deceptive trade practices. The complaint further charged that Spies had been unjustly enriched at the expense of Capitol, the performing artists and others having an interest in the performances. Capitol charged that these acts were causing irreparable damage, and prayed for an injunction, damages, and an accounting by Spies.

In his answer, Spies stated that what he did was permissible, and that he did not obtain the permission of Capitol because it was not necessary. He denied that he wrongfully appropriated Capitol’s preformances; denied that there was a likelihood of confusion as to the source of the manufacture of his tapes; denied that his acts constituted unfair competition; and denied that he was unjustly enriched at Capitol’s expense. The answer also stated that Spies attached a disclaimer to each tape which stated that no relationship existed between Tape-A-Tape and the original recording company or with the original recording artists, and that no permission or license had been sought from any party to produce the tape.

At the hearing on Capitol’s motion for a temporary injunction Capitol introduced evidence that it was in the business of manufacturing and distributing phonograph records, tapes and related items. It had contracted for the exclusive services of various performers, and in return had to pay the performers certain royalties and other fees. It also had to pay royalties to composers and copyright owners. Capitol spent between $50,000 and $75,000 on each record album before releasing it for sale.

Spies testified at the hearing that he had purchased Capitol records in a retail store and then taped them on a tape recorder. He sold about 1,500 tapes in five months. He placed a disclaimer on each tape, although some of the disclaimers may have been taken off. His tape cartridge was a different color than that of Capitol. He also testified that the persons who purchased his tapes did not confuse them with those of Capitol.

The trial judge, indicating that he was acting under the compulsion of two United States Supreme Court decisions, Sears, Roebuck & Co. v. Stiffel Co., 376 US 225 (1964), and Compco Corp. v. Day Brite Lighting, Inc., 376 US 234 (1964), and Compco Corp. v. Day Brite Lighting, Inc., 376 US 234 (1964), stated that he was unable to prohibit Spies from making and selling tapes of Capitol’s recordings, and denied its motion for a temporary injunction. This appeal follows.

In the Sears case, defendant manufactured and sold lamps substantially similar to those made by plaintiff, and at a lower price. The lamp was not patented, and defendant copied a product designed by plaintiff. In the Compeo case, defendant manufactured and sold fluorescent lighting fixtures substantially similar to that of plaintiff. The fixture was not patented, and defendant also copied plaintiff’s product. In each case, the trial court had held that defendants were guilty of unfair competition, but the Supreme Court reversed those decisions, holding that the copying of unpatented products was permissible, despite any State laws to the contrary. The Supreme Court went on to say that to permit a State by use of its law of unfair competition to prevent the copying of an article which could not be patented would be to allow the State to keep from the public something which federal law has said belongs to the public.

We believe that the facts of the instant case are clearly distinguishable from the Sears and Compco decisions, and we find that the trial court erred in denying Capitol’s motion for a temporary injunction. Whereas in those cases the court was concerned with the copying of products which were not patented, in the instant case Spies was actually appropriating another’s property. Rather than the Sears and Compco decisions, we find that the case of International News Service v. Associated Press, 248 US 215 (1918), is controlling. In that case, plaintiff gathered news at substantial cost to itself and distributed it to its members. Defendant would take the distributed news and sell it to its subscribers. The Supreme Court held that defendant was engaged in unfair competition and should be enjoined from pursuing such activity, and stated at pp 239-240:

“In doing this defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill and money and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself the harvest of those who have sown.”

Cases decided subsequent to Sears and Compco have distinguished between the copying of an unpatented or uncopyrighted product and the appropriation of another’s property. In Grove Press, Inc. v. Collectors Publication, Inc., 264 F Supp 603 (DC Calif 1967), defendants were enjoined from photographing and reproducing an uncopyrightable book published by plaintiff. The court stated at pp 606-607 as follows:

“Unfair appropriation of the property of a competitor is unfair competition and redressable in a sitúation of this kind despite the holdings in [Sears and Compeo]. (Citations omitted.)
“Defendants’ first edition is more than mere copying of Plaintiff’s work, the Grove edition. In view of Plaintiff’s expenditure of substantial sums in setting type and engraving plates, it would constitute unfair competition for Defendants to appropriate the value and benefit of such expenditure to themselves by photographing and reproducing Plaintiff’s book through the offset-lithography process, thereby cutting their own costs and obtaining an unfair competitive advantage.”

Several decisions subsequent to Sears and Compco in other jurisdictions have held that the activities precisely in issue in the instant case should be enjoined. In Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc2d 878, 252 NYS2d 553 (1964), defendant made records from tape recordings of plaintiff’s record albums. The trial court enjoined this activity, stating that “neither of these learned decisions (referring to Sears and Compco) stands for the proposition that this plaintiff is not entitled to protection against the unauthorized appropriation, reproduction or duplication of the actual performances contained in its records.”

In Capitol Records, Inc. v. Erickson, 2 Cal App3d 526, 82 Cal Rptr 798 (1969), defendants acquired Capitol’s tapes and records at nominal cost, and without plaintiff’s permission, made and sold tape cartridges of these recordings. Defendants attached a disclaimer to their tape cartridges similar to the one used in the case at bar. The evidence in that case also indicated that Capitol went to great expense to produce its recordings. In affirming the trial court’s issuance of a temporary injunction, the court held that defendant unfairly appropriated artistic products by Capitol’s efforts, and that the appropriation constituted unfair competition. The court also found that defendant’s use of a disclaimer did not negate the confusion to the public as to the source of the recorded performance. See also Tape Industries Ass’n of America v. Younger, — F Supp — (1970). Nor are we persuaded by Spies’ argument that the California courts have reached such results because, unlike Illinois, by statute that State specifically prohibits “tape piracy.” Although referring to the statute, the decisions hold specifically that defendants were improperly appropriating plaintiffs’ property.

The decisions limiting the effect of Sears and Compco and relying on the principles set forth in International News Service have been noted with approval by a number of commentators dealing with the subject. For example, in 2 Callmann Unfair Competition, Trademarks and Monopolies, § 60.4(c), at p 522, it was stated:

“Despite the proliferating confusion generated by Sears and Compco, as reflected in subsequent decisions, it seems that the courts are increasingly inclined to limit the Supreme Court’s sweeping statements wherever possible to the area of patented and copyrighted articles rather than to apply them to other areas of unfair competition.”

Consequently, we hold that the Sears and Compco decisions do not apply to the case at bar. The evidence reveals that Spies was not merely copying unpatented or uncopyrighted articles, but that he was actually taking and appropriating Capitol’s product itself — the actual sounds recorded on the albums. Spies was thus relieved of the necessity of contracting with various performers so that he might produce a recording; he needed only to wait until a párticular rendition produced by Capitol became popular and then was able to take advantage of the existing market. It seems evident that the Supreme Court in Sears and Compco did not intend to condone this form of unfair competition.

Although we have found no Illinois decision factually similar to the instant case, the rationale behind prohibiting certain forms of unfair competition has been enunciated. Schulenburg v. Signatrol, Inc., 50 Ill App2d 402, 200 NE2d 615 (1964), involved the use of an alleged trade secret by former employes. The court, in enjoining such use, stated at pp 411-12 as follows:

“The short cut used by defendants enabled them to compete with plaintiffs on equal terms by sparing them the necessity of spending time and money in acquiring the ‘know-how/ Competition is a desideratum in our economic system, but it ceases to serve an economic good when it becomes unfair.”

This decision was affirmed by the Illinois Supreme Court, 33 Ill2d 379, 212 NE2d 865 (1965). See also James C. Wilborn & Sons, Inc. v. Heniff, 95 Ill App2d 155, 237 NE2d 781 (1968).

Accordingly, the order of the Circuit Court is reversed, and this cause is remanded with instructions to grant Capitol’s motion for a temporary injunction, and for further proceedings not inconsistent with the views expressed in this opinion.

Order reversed and cause remanded with directions.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: TRAPP, J.

text:
    David Gordon, Plaintiff-Appellant, v. Department of Registration and Education of the State of Illinois, Defendant-Appellee.
    Gen. No. 53,572.
    First District.
    October 23, 1970.

      Block, Levy & Becker, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellee.
   TRAPP, J.

The Circuit Court affirmed an order of the Department of Education and Registration which suspended the license of plaintiff as a registered pharmacist for a period of thirty days. Plaintiff appeals.

The complaint of the Department charged that Gordon, a registered pharmacist, was guilty of gross immorality within the provisions of section 7(f) of the Illinois Pharmacy Practice Act (c 91, § 55.7(f), Ill Rev Stats 1963), in that on February 20,1964, Gordon was convicted upon his plea of nolo contendere in the United States District Court upon two charges of dispensing drugs without a prescription in violation of the provisions of Title 21, United States Code, § 331(k).

At the hearing before the Pharmacy Examining Committee, the Department introduced a certified copy of the record of the United States District Court including the information filed and the convictions and sentences upon pleas of nolo contendere. The report of proceedings before the examining committee discloses no objection to the introduction of the record in the United States District Court, and no motion directed against such evidence. Gordon was called and refused to testify concerning the charges. While not specifically framed as an exercise of the right against self-incrimination, it seems to have been accepted as such.

Upon motion for rehearing before the Pharmacy Examining Committee, Gordon contended that the conviction in the Federal Court was for a misdeameanor and that there was no legislative authority to suspend a pharmacist’s license upon conviction of a misdemeanor.

Upon this appeal, Gordon argues that no evidence was introduced which shows that he was guilty of “gross immorality” within the provisions of the Pharmacy Act; that the Department has no power or authority to suspend a pharmacist’s license upon conviction of a misdemeanor; that the plea of nolo contendere was not an admission for purposes of this proceeding, and that there was no competent evidence that the drugs sold were addictive or could be used for improper purposes.

It is not necessary to review at length Gordon’s arguments that the conviction in the United States District Court upon the plea of nolo contendere is not admissible into evidence.

The issue of the admissibility of the certified record was not raised by objection before the administrative body hearing the complaint. Matter of defense not presented to the administrative agency may not be raised in the court in review or upon appeal. Leffler v. Browning, 14 Ill2d 225, 151 NE2d 342; Jewell v. Carpentier, 22 Ill2d 445, 176 NE2d 767. As has been said, orderly procedure requires holding a party to his own conduct, for otherwise a party would have the benefit of surprise and deprive the opposing party of an opportunity to contest the issue. Abbott Pub. Co. v. Annunzio, 414 Ill 559, 112 NE2d 101.

The issue of the admissibility of a conviction upon a plea of nolo contendere has been considered by the Supreme Court in the matter of discipline of lawyers. In re Eaton, 14 Ill2d 338, 152 NE2d 850, concerned disbarment proceedings following a plea of nolo contendere upon a charge of mail fraud. The record of such conviction was the only evidence presented. Respondent moved to strike the complaint, contending that the judgment upon the plea did not amount to a conviction and that the record of the indictment and conviction was inadmissible into evidence. The Court determined that there was no logical distinction between a conviction upon a plea of guilty and a plea of nolo contendere, and that discipline was imposed upon the conviction rather than upon an admission implicit in the plea. Thus in Illinois, for purposes of disciplinary proceedings, a conviction upon a plea of nolo contendere is equivalent to a conviction under any other plea. In re Revzan, 33 Ill2d 197, 210 NE2d 519. See also 29 Am Jur2d 760, § 702.

It is urged that a conviction upon a misdemeanor is not “gross immorality” within the meaning of the Illinois Pharmacy Practice Act. We consider this in the light of the preamble of such Act, c 91, § 55.1, Ill Rev Stats 1963. It determines that pharmacy is a professional practice affecting public health, safety and welfare and is subject to regulation and control in the public interest. The State Board of Pharmacy made a finding that the separate sales of legend drugs without prescription on the same date to the same person indicated a woeful disregard of regulations and was contrary to the public interest.

We consider the term “gross immorality” in the light of the issues presented. Immorality has been defined as that which is inimical to public welfare according to the standards of the community as expressed in law or otherwise. Black’s Law Dictionary. In the legal sense, “gross” denotes conduct which is wilful and flagrant. Indiana Board of Pharmacy v. Haag, 184 Ind 333, 111 NE 178; Rose v. Baxter, 18 Ohio Dec 658. In the absence of a statutory definition, “gross immorality” may be measured by the standards of the profession concerned. Mingo County Medical Soc. v. Simon, 124 W Va 493, 20 SE2d 807.

It is argued that the Illinois Pharmacy Practice Act provides for suspension or revocation of a license only where there has been a conviction of a felony and that a conviction for a misdemeanor does not authorize a suspension of a license. Such argument requires the conclusion that the legislature had no interest or concern with the maintenance of standards of ethics in the profession of pharmacy, and did not intend to provide any means for providing professional discipline. There are, indeed, many misdemeanors which are not concerned with professional practice and conviction upon such may not be a concern of public interest or welfare. We are not persuaded, however, that when it created the State Board of Pharmacy of the Department of Registration and Education, the legislature intended to disregard all professional standards and practices and to permit any violation of such, as long as it was not labelled a felony. For us to find and declare such a legislative intent would be an unreasonable and stultifying conclusion. We determine, therefore, that a conviction of a misdemeanor which concerns the practice of pharmacy is “gross immorality” within the intent and purpose of the Illinois Pharmacy Practice Act. The judgment of the Circuit Court is affirmed.

Affirmed.

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