author: DOVE, J. MORAN, J.,

text:
    Thelma E. Cunningham, Administrator of the Estate of Donald D. Cunningham, Deceased, and Thelma E. Cunningham, Individually, Plaintiffs-Appellees, v. Central & Southern Truck Lines, Inc., a Corporation, and William T. Shaver, Defendants-Appellants.
    Gen. No. 67-31.
    Fifth District.
    December 31, 1968.

      Gosnell & Benecki, of Lawrenceville (Edward Benecki and Charles Quindry, of counsel), for appellants.
    Roscoe D. Cunningham, of Lawrenceville, for appellees.
   DOVE, J.

About ten-thirty o'clock on the evening of November 21, 1964, Donald D. Cunningham, accompanied by Ross Montgomery, his employee, was driving his G. M, Tractor and attached semitrailer, loaded with oil field pipe, in an easterly direction on U. S. Route 50 in Lawrence County. Coen Reed, also an employee of Cunningham, was driving a pickup truck belonging to Cunningham in an easterly direction on Route 50, to the rear of the tractor-trailer driven by Cunningham. West of the pickup truck, and also proceeding east on the same highway, William T. Shaver was driving a tractor-trailer belonging to defendant, Central and Southern Truck Lines, Inc. The truck driven by Cunningham made a right turn off of U. S. Route 50 into a gravel road leading south, referred to in the record as Gulf Oil Road. The truck driven by Shaver came in contact with the truck driven by Cunningham, or the pipe loaded thereon, and as a result of the impact, Mr. Cunningham was pushed forward in the cab and against the steering gear, receiving injuries from which he died the following afternoon.

Thereafter a two-count complaint was filed in the Circuit Court of Lawrence County by Thelma E. Cunningham, widow of Donald D. Cunningham, and against Central and Southern Truck Lines, Inc., the owner of the truck involved in the collision, and against Wm. T. Shaver, its driver. The first count of said complaint was brought by Thelma Cunningham, in her representative capacity as administrator of the estate of Donald D. Cunningham, and sought to recover for the alleged wrongful death of Cunningham. In the second count she, individually, sought to recover the damages she sustained in the payment, by her, of her husband’s funeral expenses.

The defendants filed a joint answer admitting some of the allegations of the complaint, but denying all of the alleged charges of negligence. The corporate defendant, Central and Southern Truck Lines, Inc., filed a counterclaim and thereafter an amended counterclaim, which alleged, among other things, that counterdefendant’s intestate, Donald D. Cunningham, in making the right turn, caused the rear portion of his trailer “to be on the left half of the roadway obstructing the path of counter-claimant’s motor vehicle,” and that when he, Cunningham, turned the tractor and trailer he was driving onto the intersecting highway, he left “extending out onto the paved portion of the highway and across the center line into the left traffic lane, approximately seven feet of iron oil field casing with no light of any kind thereon to warn drivers of vehicles following, of the presence of said pipe.”

The issues made by the pleadings were submitted to a jury, resulting in a verdict for the plaintiff on count two for $1,179. On count one, the jury found for the plaintiff, administrator, and assessed damages at $50,000 and apportioned them as follows:

To Thelma E. Cunningham.......$20,000
To Timothy Dee Cunningham.....10,000
To Scott Nelson Cunningham..... 10,000
To Laura Marie Cunningham..... 10,000

The jury found against the corporate counterclaimant on its counterclaim and answered a special interrogatory finding that Donald D. Cunningham was in the exercise of ordinary care for his own safety at the time of, and immediately prior to, the collision. Upon the return of the verdicts, the court entered judgment on count two for the plaintiff, and against the defendants, for $1,179, and upon its own motion entered judgment for the plaintiff on count one and against both defendants for $30,000, and apportioned the judgment among the parties in interest as follows:

To Thelma Cunningham..........$12,000
To Timothy Dee Cunningham..... 6,000
To Scott Nelson Cunningham..... 6,000
To Laura Marie Cunningham..... 6,000

The post-trial motion of defendants was subsequently heard and overruled, and defendants appeal.

The evidence is that on November 21, 1964, Donald D. Cunningham was engaged in the oil field contracting business in Lawrence County and surrounding area, and had been so engaged for some time, and that Ross Montgomery and Coen Reed were two of his employees. At the direction of Cunningham, Messrs. Reed and Montgomery took a G. M. Tractor and semitrailer belonging to Cunningham to Clay City, Illinois, and there picked up a load of oil field pipe casing, which was to be delivered by them to a well site in the Bridgeport area. They arrived in Clay City about 2:30 o’clock in the afternoon, and after loading their truck proceeded to their destination. They had some mechanical trouble with the truck, and at Noble, Illinois, they stopped and phoned their employer, Donald D. Cunningham, and he came in his pickup truck and did some work on the truck, which up to this point had been driven by Montgomery. Mr. Montgomery refused to drive any further, and when the truck and semitrailer left Noble about eight o’clock in the evening, it was being driven by Cunningham and Montgomery accompanied him, riding in the cab of the truck to the right of, and beside, Cunningham. After leaving Noble they stopped twice and Cunningham and Montgomery did some further work on the truck. The Gulf Oil Road intersects Route 50 about two miles west of the Bridgeport intersection, and runs in a southerly direction. When Cunningham, accompanied by Montgomery, reached a point approximately 1,000 feet west of the Gulf Oil Road, the evidence is that Cunningham gave a right turn signal. At that time the pickup truck, driven by Coen Reed, was proceeding easterly on Route 50 some 200 or 250 feet to the rear of the truck being driven by Cunningham, and to the rear of this pickup truck driven by Reed, proceeding in an easterly direction, was the truck of defendant, Central and Southern Truck Lines, Inc., being driven by defendant, Wm. T. Shaver.

Mr. Montgomery, who was in the cab of the truck being driven by decedent, was called as a witness for the plaintiffs, and he testified that he was 31 years of age, and that prior to November 21, 1964, he was employed by Cunningham as an operating engineer, and had been for four or five months; that at about 2:30 o’clock on the afternoon of that day he and Coen Reed, at the direction of Cunningham, loaded fifty-five 5%-inch casing pipe on the GMC tractor and flatbed trailer belonging to Cunningham; that the length of each pipe was 31 feet, 9 inches; that 13 pipes made up the bottom row on the bed of the truck; 12 pipes were in the second row; 11 on the third row from the bottom; 10 on the fourth row; and 9 on the top or fifth row; that each row had one less, because the pipes, as one witness expressed it, “set in the groove of the other pipe as they are stacked and the collars (or couplings) are staggered so they will fit.” After being so loaded, the pipes were fastened on the trailer by three log chains and boomers. The overhang of the pipe at the front of the semitrailer and back of the cab was two feet, and the overhang at the rear of the semitrailer was four feet.

Mr. Montgomery further testified that as they proceeded east on Route 50 toward the Gulf Oil Road intersection, they were going between 45 and 50 miles per hour; that he observed through the rearview mirrors that Coen Reed was driving the pickup truck, which was to their rear, about 200 or 250 feet; that the tractor in which he was riding slowed down to five miles per hour to make the right turn off of main Route 50 and into Gulf Oil Road; that at the time of the impact the left rear wheel of the attached trailer was on the pavement, and that the right wheel of the trailer was either off the pavement or just at its edge; that he did not realize that a vehicle had struck the tractor-trailer in which he was riding, but “thought the boomers had broke loose and had let the pipe go forward and unload.”

Mr. Montgomery further testified that there was a light on each comer of the bed on the rear of the Cunningham trailer, and a bar light in the center consisting of three lights, and turn signal lights were located on each side of this bar light; that the signal lights at the rear were on the same circuit with the tractor lights, and that all these lights, as well as the lights on the tractor, were functioning on the night in question. He also testified that there was no light or lantern attached to any of the pipe which extended over the rear end of the trailer, but a couple of red flags had been attached to the ends of the pipe. As a result of the collision, all of the casing pipe fell from the trailer and came to rest south of the pavement and east of the traveled portion of Gulf Oil Road. The tractor-trailer unit driven by Shaver stopped on the north side of the pavement on Route 50, headed east.

On direct, as well as in his cross-examination, this witness was positive that none of the pipes on the truck, as it made the right turn from Route 50 into Gulf Oil Road, extended into the westbound traffic lane on Route 50, and that when it stopped on Gulf Oil Road, the rear of the semitrailer was six feet and seven inches south of the south edge of the pavement. He further testified that after the Cunningham truck stopped, he, Montgomery, got out of the cab, walked to the driver’s side and observed that Mr. Cunningham’s body was “jammed in between the steering wheel and the back of the truck”; that he then lifted him from the cab, and shortly thereafter he was removed to the hospital at Lawrenceville.

Counsel for appellants insist that the trial court erred in refusing to permit defendant, ffm. T. Shaver, to testify, and argue that inasmuch as Montgomery testified on behalf of the plaintiffs to the transaction between the defendant Shaver and decedent, that, in order to place the parties on an equal footing, defendant Shaver should have been permitted to testify to the same matters concerning which Montgomery testified. Counsel say that the evidence discloses that Montgomery was at the time of the occurrence in question, an employee and agent of decedent, and engaged in the transaction of his business; that at the time of the occurrence and prior thereto Montgomery was in the cab of the tractor then being driven by decedent, and testified on behalf of plaintiffs as an occurrence witness, and having so testified, Shaver became a competent witness to testify to the same transaction, and was not barred by any of the provisions of the Evidence Act.

The applicable sections of the Evidence Act (Ill Rev Stats 1967, c 51, § 2), are:

“No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, . . . when any adverse party sues or defends as . . . administrator, heir, legatee or devisee of any deceased person, . . . unless when called as a witness by such adverse party, so suing or defending, and also except in the following cases, namely: U
“Second, when in such action, suit or proceeding any agent of any deceased person shall, in behalf of any person or persons suing, or being sued, in either of the capacities above named, testify to any conversation or transaction between such agent and the opposite party or party in interest, such opposite party or party in interest may testify concerning the same conversation or transaction.”

It is true that at the time of the occurrence in question Montgomery was in the employ of Cunningham, but he did not testify to any conversation he had with Shaver. The transaction about which he testified had to do with the collision of two motor vehicles, one driven by Shaver, and the other driven by decedent, in which Montgomery was riding. This was not a transaction between Montgomery and the defendant Shaver and his employer, as contemplated by the statute, but the transaction was between Montgomery’s employer, Cunningham, the decedent, and defendant Shaver, and his employer, Central and Southern Truck Lines, Inc. It is only when an agent testifies to a transaction between himself and the opposite party, that the opposite party may testify concerning the same transaction. (Moore v. Botto, 159 Ill App 322.)

In an action by an administrator of a deceased driver of a motor vehicle against the owner and driver of a truck which struck decedent’s automobile, thereby causing intestate’s death, the truck driver is not a competent witness (Schampon v. Speis, 285 Ill App 23, 25, 1 NE2d 499), but where an administrator sues in his individual capacity rather than in his representative capacity, a party interested is not incompetent to testify on his own motion. If the adverse party does not sue as administrator of a deceased person, an interested party defendant is not incompetent to testify. (37 ILP, Witnesses, § 48.)

In the instant case, by count one Thelma Cunningham, in her representative capacity, as administrator of the estate of her deceased husband, sought to recover for his alleged wrongful death. Defendant, William T. Shaver, as to the issues made by the pleadings as to this count, was an incompetent witness to testify in his own behalf, and upon this record, as to this count, the ruling of the trial court was correct. By the second count, however, Thelma Cunningham sought to recover the damages she individually sustained, in the payment by her of her husband’s funeral expenses, and as to this count, defendant William T. Shaver was a competent witness.

The record discloses that at the conclusion of plaintiffs’ case, counsel for plaintiffs suggested a conference in chambers. At this conference counsel for plaintiffs stated that they would invoke section 2 of the Evidence Act as a bar to the testimony of defendant, Shaver, and requested the court to instruct counsel for appellants not to place defendant Shaver on the witness stand. Counsel for defendants stated that it would be prejudicial to defendant not to attempt to have this witness testify. The court then said: “You may make your objection at the time the witness takes the stand, and I will rule on the motion at that time.” At the resumption of the hearing the next morning, counsel for defendants called Mr. Shaver as their first witness, and he was sworn. Thereupon counsel for plaintiffs said: “Your Honor, inasmuch as the plaintiffs bring this action as administrator, we ask that the witness be barred from testifying.” The court then stated: “All right, I will grant the motion,” and counsel for defendants called another witness.

To sustain the ruling of the trial court, counsel for appellees argue that when defendant Shaver was tendered as a witness, it was the duty of counsel for appellants to make an offer of what they expected to prove by him, and by failing to do so, they have waived their right to insist upon this error, and counsel cite Dirksmeyer v. Barnes, 2 Ill App2d 496, 119 NE2d 813.

The Dirksmeyer case was an action brought by an administrator. At the conclusion of plaintiff’s case, defendant was called as a witness to testify on his own behalf and was sworn, took the witness stand, gave his name and place of residence and to the next question an objection was made by counsel for the plaintiff to the defendant testifying against the plaintiff, administrator, and this objection was sustained. In affirming a judgment for the plaintiff, the Appellate Court said that the ruling of the trial court was correct, because counsel for defendant had not informed the court as to what the defendant would testify to, or made any offer of proof, so that the trial court could ascertain and determine whether the proposed testimony was competent. The record in the instant case discloses that at the close of plaintiff’s case, counsel for the plaintiffs, at a conference in chambers stated that “the plaintiff will avail herself of the protection of section 2 of the Evidence Act and will invoke same as a bar to testimony by the defendant, William T. Shaver, and accordingly, we ask the Court that defendant’s counsel be instructed not to place William T. Shaver on the stand. We think it would be highly prejudicial to the plaintiff’s interest.” Counsel for defendants then said it would be equally prejudicial to the defendant not to attempt to have this witness take the stand and testify in his own behalf and suggested that an instruction would adequately explain to the jury why defendant was not permitted to testify. At the conclusion of the colloquy in chambers the Court said he thought an instruction would be adequate: that it was necessary for counsel to invoke the rule at the proper time; that counsel could make his objection at the time the witness takes the stand and that he would rule on the motion at that time. Upon convening court the following morning the record shows that when Mr. Shaver’s name was called as a witness, he was sworn, but before any question had been directed to the witness, counsel for plaintiffs addressed the court, stating: “Inasmuch as the plaintiffs bring this action as administrator we ask that the witness be barred from testifying.” The court then replied: “AH right, I will grant the motion.” Counsel for defendants then called another witness.

The trial court fully understood the character of the evidence defendants would seek to elicit from defendant, Shaver, had he been permitted to testify. The motion of counsel for appellees, interposed immediately after he was sworn, was that the defendant, Shaver, “be barred from testifying.” His testimony as to the occurrence under Count one of the complaint, was incompetent but under the second count he was a competent witness and the court erred in sustaining appellees’ motion. Although there was no merit in counsel for appellants’ contention, in chambers, that because Montgomery was the agent and servant of decedent, and had testified on behalf of the plaintiffs, that the so-called “Dead Man’s Rule” did not apply to defendant, Shaver, there is, under the facts disclosed by this record, no merit in appellees’ contention of waiver. The record in this case is distinguishable from the records in the Dirksmeyer case and the other cases relied upon by counsel for appellees.

Counsel for appellants also insist that the trial court erred in admitting in evidence a diagram identified as Plaintiffs’ Exhibit No. 11, prepared by Charles E. Carr. This exhibit was a pen and ink drawing depicting a flatbed trailer and the cab of a tractor to the rear of the trailer. The exhibit was a large white cardboard three feet wide and five feet long. A black line appearing at the bottom of the exhibit was intended to indicate the surface of a pavement. The two circles, one within the other, represented the right rear wheel of a flatbed trailer. Above this wheel are five horizontal lines, representing the pipe loaded on the trailer. Above the 5th horizontal line is another horizontal line extending the entire length of the exhibit and six perpendicular lines, one indicating the back end of the tractor, one indicating the front end of the trailer, and one indicating the rear end of the pipe, and one indicating the top of the cab of the tractor which was being driven by defendant Shaver at the rear of the flatbed trailer.

At the end of each of these five solid lines are broken lines, (------), and the distance from the rear end of the trailer to the end of the broken lines is indicated as six feet and one inch. Other numbers appear on this exhibit, one indicating that the distance from the end of the bed of the trailer to the end of the pipe loaded thereon is four feet. A horizontal line indicates that the top of the seat in the tractor cab is the same distance from the surface of the highway as the bed of the trailer (4 feet and 6 inches), and beginning at a point two feet and six inches above this line there appears a straight, slanting line to a point representing a light at the left rear side of the flatbed of the trailer.

Charles E. Carr testified on behalf of the plaintiffs, and stated that he prepared this exhibit from estimates which he had made and from photographs, and from what he had been told. He further testified that this exhibit was prepared on a scale of one inch equals one foot; that it represents a flatbed, single rear-axle trailer being approached from the rear by another truck. He testified that the figures “4' 6"” and “2' 6"” appearing on the exhibit indicated that the eye level of the driver of the approaching truck was seven feet from the road surface; that the figures “4' 6"” indicated the height of the end of the trailer; that the figures “26' 0"” represented the length of the trailer bed; that the figures “4' 0"” indicated the pipe overhang and that the figures “6' 1 indicated a projected pipe overhang of six feet and one inch.

This witness further testified that he had not measured Shaver’s tractor or seat level or Shaver’s eye level when seated in the truck he was driving but the slanting straight line beginning at the indicated eye level of the driver of the Shaver truck ends at a light located at the rear of the trailer one foot below the top of the bed of the trailer and recessed nine inches forward.

This witness further testified that with a four-foot pipe overhang on the trailer, an approaching truck must be within 15 feet and 3 inches of the rear end of the trailer before the overhang would block the driver’s vision of the light on the rear of the trailer, and with a six-foot, one-inch overhang, the approaching truck must be within 22 feet, 3% inches of the rear end of the trailer before the line of vision to the rear light of the trailer would be blocked by such overhang.

Mr. Carr further testified that he was a Lawrence County oil producer, maintaining an office in Lawrence-ville, and that he had completed a 27-month course in radio engineering. He testified that he had ordered the pipe which Cunningham and Montgomery were hauling from Clay City to his well location near Bridgeport; that he went to the intersection where the collision occurred the following morning, observed the pipe strewn along the shoulder of the paved portion of Route 50, inspected the pipe, described the condition thereof, and expressed the opinion that the condition of the pipe indicated to him that the force which damaged the pipe had been applied to the pipe ends in line with the pipe.

There is evidence in this record describing the trailer truck driven by defendant Shaver which this drawing was intended to illustrate. Ross Montgomery had testified that the length of the Cunningham trailer was 26 feet, and that he estimated that the height of the bed was four feet and six inches and that the pipe overhang at the rear of the trailer was four feet. The projected six-feet, one-inch overhang shown on Exhibit 11 was based, according to appellees’ brief, not upon any evidence, but upon what appellants’ counsel said in his opening statement that he intended to prove. There is no evidence as to the distance of the lights below the bed of the trailer truck or the dimensions of the wheels, the flexibility of the springs, or the effect of an eleven-ton load on the springs and tires. This exhibit was not based upon any measurements made by the person who prepared it, or measurements of the vehicles involved, before or after the occurrence, but upon information furnished the witness who prepared it, by others.

Mr. Carr had no training in drafting, and he was permitted to use his drawing, Exhibit 11, to justify and reinforce his conclusions. The slanting line on this exhibit running from the assumed eye level of Mr. Shaver to the point indicated as a rear light on the tractor trailer emphasized Mr. Carr’s conclusion that the defendant Shaver, could have easily observed the lights on the rear of the Cunningham truck. This opinion, and others which this witness expressed, clearly invaded the province of the jury and were highly prejudicial. 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 the jury to apply the testimony more intelligently to the facts shown (Smith v. Sanitary Dist. of Chicago, 260 Ill 453, 103 NE 254; Department of Public Works and Buildings v. Chicago Title & Trust Co., 408 Ill 41, 95 NE2d 903).

In Pratt, Read & Co. v. New York, N. H. & H. R. Co., 102 Conn 735, 130 A 102, it appeared that the plaintiff had paid, through its insurance carrier to one of its employees, Rogers, compensation which had been awarded him for injuries he had sustained when a passenger in a motor bus while being transported to the company’s place of business, such transportation being a part of Rogers’ wages. This action was brought by Rogers’ employer to recover for injuries Rogers received when the motor bus in which he was riding with other employees collided at a grade crossing with a passenger train operated by the defendant. The defendant recovered a judgment and the plaintiff appealed. The Supreme Court of Errors of Connecticut reversed the judgment because of erroneous instructions. It appeared that upon the trial a map, identified as defendant’s exhibit 1, made by the engineer of the train involved in the collision was offered and admitted in evidence over plaintiff’s objection. In its opinion the court referred to the exhibit and said:

“Rulings upon evidence are not erroneous except in one instance. Defendant’s Exhibit 1, a map made by its engineer, and representing the locus at the time of the accident, and containing a number of lines thereon representing lines of vision was admitted in evidence over plaintiff’s objection and exception. The lines of vision had no place upon the map. It appears that they were testified to by the engineer. Placing them upon the map before it was introduced in evidence gave them undue prominence over other oral testimony, since the map as an exhibit went to the jury room. The matter was one within the sound discretion of the Court. Under the circumstances of this case, its admission was not harmful error.”

In the instant case the exhibit prepared by Mr. Carr depicted the relative positions of the trailer truck, which decedent was driving and the tractor driven by defendant Shaver. It singles out these two motor vehicles. The evidence is that the pickup truck driven by Coen Reed was 200 or 250 feet to the rear of the Cunningham truck when it started to make its right turn into Gulf Oil Road. There is no evidence in the record that the truck driven by Mr. Shaver ever occupied the position on the highway depicted by Mr. Carr on this exhibit. This map went to the jury room. It gave undue prominence to Mr. Carr’s testimony and indicated by lines and numbers, the conclusions of the witness who prepared it. The admission of this exhibit in evidence, together with the court’s ruling with reference to defendant Shaver’s competency as a witness, necessitates a reversal of the judgments appealed from. (Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 370, 371, 181 NE2d 386).

It is also insisted that the Court erred in refusing to sustain objections to questions propounded by counsel for plaintiffs to Joe Muiré, a witness called by plaintiffs, and also erred in sustaining an objection by counsel for defendants to a question propounded by counsel for defendants to Wilfred Gibson, a witness called by the defendant. Mr. Gibson testified that he was an Illinois State Police Trooper, and had received training for his work at the Illinois State Police Training Academy at Springfield; that he had been a Trooper for eleven years, and during that period he had investigated 528 collisions. He further testified that while on duty at Lawrenceville the evening of the occurrence, he learned of this accident, and immediately went to investigate. He stated that the rear end of the Cunningham tractor-trailer was in the gravel road six feet and seven inches from the paved portion of Route 50, facing south; that the other involved truck was standing 43 feet east of the east edge of the gravel road; that the tractor portion of this vehicle was on the north shoulder of Route 50, and the back wheels were on the paved portion of Route 50, extending into the west traffic lane five or six feet; that he observed the pickup truck driven by Coen Reed, and talked to both Reed and Shaver; that he examined the lights on the Cunningham truck involved in the collision, and tested them by the activating switch, and all of them, including the taillights and the turn signal lights, worked; that the stoplight was not tested because it was activated by the brake pedal, and due to the damage to the cab, he was unable to do so. This witness, without objection, testified that from his investigation, the point of impact was in the eastbound lane of traffic, and concluded, “the truck was turning off on the gravel road and the point of impact would have been between the east and west edge of the intersection on the cement.”

Mr. Gibson further testified that there was no debris on the highway, but that he observed skid marks leading to defendant’s truck; that these skid marks were 75 to 80 feet in length and began in the eastbound lane of traffic and that they went in a northeasterly direction. Toward the end of his direct examination by counsel for defendants, he was asked: “Now, Officer Gibson, did you form an opinion, based upon your training as an Illinois State Highway Patrolman, in your eleven years’ experience in the investigation of accidents, and the investigation you conducted in this specific accident, did you form an opinion as to how these vehicles came to collide at this intersection?” This question invaded the province of the jury, and the court promptly and properly sustained an objection thereto. We have examined the transcript of the record, and read therefrom all the testimony of Mr. Gibson and Mr. Muiré, and find no reversible "error in the rulings of the trial court.

On the second day of the trial the three children of the plaintiff, Thelma E. Cunningham, aged 6, 9 and 12, were present in court. The record shows that, in chambers, counsel for defendants called the attention of the court to this fact, and stated that the only purpose of their being in the courtroom would be to arouse sympathy on the part of the jury, and requested the court to “instruct counsel for the plaintiffs to instruct the children to go home, since their presence is not necessary to the issues in this cause.” The court stated that anyone is entitled to be in the courtroom, and that he saw no necessity to entirely exclude them from the courtroom, but that they would continue to be seated with other spectators. The court adequately protected the rights of everyone by its ruling.

It is also argued that the trial court erred in refusing to give one instruction tendered by defendants, and erred in giving to the jury six instructions tendered by the plaintiffs. The record shows that at the conference on instructions thirteen instructions were tendered by counsel for defendants. Twelve of these instructions were given without objection. When the court took up for consideration the 13th tendered instruction by defendants, counsel for defendants stated: “This instruction is submitted to the court tentatively only, even though it is our instruction, for the purpose of the court determining the form in which it should be. It is prepared more on the pleadings than it is on the evidence. We, ourselves, have objections to it. Some of the acts of negligence, as taken from the complaint, do not apply to the facts of this occurrence. We reserve the right, at this time, to re-do it, even though it was prepared for us. We think it should be revised in this respect in regard to the first paragraph.”

Counsel for defendants then stated that paragraphs 2 and 3 should not be included in this instruction, and that certain allegations on page 2 of the instructions should be omitted, and then said: “Turning to the third page of defendant’s instruction 13, which instruction is tendered at this time purely for the court’s consideration, and revision, we believe . . . At this point, after counsel for defendants had criticized his own instruction in language covering 2% pages of the transcript, the court interrupted and said: “I will sustain your objection as to the first word of the second line of the first sub-paragraph on page 3.” Counsel for defendants then said: “The court has indicated that he will give defendants’ tendered instruction 13 in the form in which it was presented to the court for its consideration, and defendant has objected, and the court has overruled the objections to the instruction. Is that correct?” The court replied: “Yes, I have.” Counsel for defendants then said: “If the court itself desires to give instruction 13 as its own instruction, we have no objection, and if the court gives it as its own instruction, may we renew our objection?” Counsel for plaintiffs then said: “It is his own instruction.” The court then concluded the discussion with reference to defendants’ tendered instruction 13, by saying: “I know, but it will be given as the court’s instruction. I will show it given over objection.”

In insisting that it was error to give this instruction, counsel for defendants state that counsel for plaintiffs had submitted an issue instruction which the court had refused; that in submitting this instruction counsel for defendants did so “for the sole purpose of aiding the court in determining the final form which it should take.”

At the conference on instructions the trial court was tendered this instruction by counsel for defendants, had patiently listened to counsel criticize his own composition, and finally heard counsel who tendered the instruction state, “If the court desires to give instruction 13 as its own instruction, we have no objection.” In view of the record, defendants are in no position to complain of the action of the trial court in giving this instruction, or in its rulings on the other instructions complained of.

For the errors indicated, the judgment of the Circuit Court of Lawrence County is reversed, and this cause remanded for a new trial.

Reversed and remanded.

EBERSPACHER, J., concurs.

MORAN, J.,

dissenting:

The majority has ordered a new trial in this case because of the trial court’s refusal to allow defendant William T. Shaver to testify and because of the claimed erroneous admission of Exhibit No. 11 prepared by Witness Carr.

Defendant for all practical purposes conceded in the trial court that Shaver was disqualified from testifying and therefore should not be permitted to raise this question in this court. At the end of plaintiff’s testimony and before plaintiff had rested his case, plaintiff, in chambers, announced to the court that he would invoke section 2 of the Evidence Act as a bar to Shaver’s testimony. In answer, defendant’s counsel in so many words admitted that Shaver was an incompetent witness, his only contention being that plaintiff’s motion was premature and that plaintiff would have to make his objection when Shaver was offered as a witness. Defendant’s counsel stated, “The right to invoke Section 2 of the Evidence Act is the right the plaintiff is entitled to in this cause, and we must exercise that right at the proper time.” After this conversation and after defendant had made another objection, the court discharged the jury to be reconvened at 9 o’clock the next morning. The court reconvened the next day at 9:45 a. m., with both counsel present and the jury in the box. The court then announced that plaintiff had rested his case. The defendant then called Shaver as his first witness. He was sworn. Plaintiff: “Your Honor, inasmuch as the plaintiff brings this action as administrator, we ask that the witness be barred from testifying.” The Court: “All right, I will grant the motion.” Defendant: “The defendant and counterplaintiff would like to call defendant’s next witness.” At this state of the proceeding it was incumbent on the defendant to urge upon the trial court some reason why the defendant was qualified to testify, but he said nothing.

At no time in the trial was the trial judge or opposing counsel notified of the contention that defendant now makes in this court — that is, that Shaver was qualified to testify against Mrs. Cunningham on Count II. If he had, I am sure plaintiff’s counsel would have dismissed Count II since there was only $1,149 involved. Instead, both parties accepted as true the fact that Shaver was disqualified generally to testify. Under these circumstances we should follow the rule that a point not raised in the trial court cannot be urged on appeal. Dirksmeyer v. Barnes, 2 Ill App2d 496, 119 NE2d 813; Ragen v. Bennigsen, 10 Ill App2d 356, 135 NE2d 128; Daily v. Meredith, 56 Ill App2d 230, 205 NE2d 640. I cannot agree that at any place in the record counsel for defendant in any way or at any time urged in the trial court that Shaver was a competent witness for any reason. In fact, this must have been a complete afterthought, because he did not urge it in his original post-trial motion, but did by amendment to his post-trial motion.

I also disagree with the conclusion that Carr was not qualified to testify as an expert. To be an expert, one must have qualifications superior only to that of the general public in the particular field in which he is testifying. Qualifications are almost always a problem exclusively for the trial court unless such qualifications are so bad that it is an abuse of discretion to permit such testimony as an expert. See Gard on Evidence, Rule 219. The record discloses that drafting was a regular part of Carr’s employment for sixteen years and he functioned as a petroleum engineer whereby he had to be able to make maps, surveys and do all types of drafting work. Therefore, the trial judge did not abuse his discretion in allowing Carr to testify as an expert.

The testimony of Carr as to the length of the trailer, the location of the lights, and the height of the bottom of the trailer was proper — assuming that there was no testimony in the record as to what these actual distances were — because he testified that he knew the size of the wheel and from this he could make this schematic drawing from plaintiff’s exhibit No. 2, which was admitted into evidence without objection. Disregarding his testimony that he could determine the distance involved when he once knew the size of the wheel, there was other testimony in the record which substantiated the drawing.

Assuming that the exhibit was not accurate in all details, I still do not think it was error to admit it. This exhibit was in the nature of demonstrative evidence, the purpose of which was to make more clear to the jury the contentions of the plaintiff. Great latitude has been allowed in the admission of such exhibits and the admission or rejection of such evidence has universally been held to be within the discretion of the trial court. This is true even when the drawings have not been completely accurate. See annotation in 9 ALR2d 1044. In Department of Public Works and Buildings v. Lotta, 27 Ill2d 455, 189 NE2d 238, at p 458, our Supreme Court said that whether a map constitutes a fair representation of the facts is a matter for the trial judge to decide in the first instance.

For the foregoing reasons, I dissent from the majority opinion.


source: Caselaw Access Project

author: JUSTICE MORAN.

license: Public Domain

text:
    Betty Runge and Elroy Runge, Plaintiffs, v. Larkin I. Smith, Defendant, and Larkin I. Smith, Defendant, Counterplaintiff and Appellee, v. Betty Runge, Plaintiff, Counterdefendant and Appellant.
    Gen. No. 68-30.
    Fifth District.
    December 31, 1968.
    Ryan and Heller, of Mattoon (Harlan Heller, of counsel), for appellant;
    Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: SPIVEY, J. MORAN, J.,

text:
    Doctors Convalescent Center, Inc., a Corporation, Plaintiff-Appellant, v. East Shore Newspapers, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 68-41.
    Fifth District.
    December 31, 1968.

      Richard Shaikewitz and Emerson Baetz, of Alton, for appellant.
    Walker & Williams, of East St. Louis (Ralph Walker and Edward Maag, of counsel), for appellee.
   SPIVEY, J.

The Circuit Court of St. Clair County on defendant’s motion dismissed plaintiff’s cause of action for libel.

The sole question presented is the sufficiency of plaintiff’s complaint.

On July 27, 1967, plaintiff filed its complaint alleging that prior to July 14, 1966, it was engaged in the operation of a nursing home for the ill and infirm and that among its patients were subnormal and mentally retarded children, some of which are wards of the State of Illinois, placed in the home by authorized agencies of the State; that it extended to subnormal and mentally retarded children the custody and care required of it and operated the institution under such conditions as are required.

That on or after June 1, 1966, and at times prior and subsequent thereto the defendant, through its editors, reporters, agents and servants, did conspire and confederate with one Jack McAllister, a former convict, Edith Heide, an employee of the Illinois Department of Public Health, William Boyne, Melvin Luna, and other persons unknown to the plaintiff, to cause to be printed, published, circulated and distributed in defendant’s newspaper certain statements pertaining to the operations of plaintiff’s nursing home and the care of its patients.

The alleged libelous newspaper accounts went into a great amount of detail to describe conditions at the home and its operation; these included lack of adequately trained personnel and supervision, acts of cruelty toward and physical abuse of the patients, lack of medical attention and lack of physical supervision of the patients. The accounts also recited diet deficiencies resulting in malnutrition and lack of sanitary care. The accounts were based on reports and interviews with persons who had visited the home or who had contact with the patients after their transfer to other facilities. They recited the deaths of several of the patients and suggested they resulted from the deficiencies and a substandard operation.

The accounts further charged State authorities with being lax in their responsibility toward their wards at the plaintiff’s center, and for shunting responsibility from one to another. It was pointed out that funds for the care of the State’s wards are authorized by the State Department of Mental Health, the licensing is delegated by the Department of Public Health to the East Side Health District, and the Department of Children and Family Services placed youngsters in plaintiff’s center and no public agency exercised its responsibility in the case.

Plaintiff further alleges that the facts published by defendant are false and that the articles published were and were meant by the defendant to be a single connected attack on the plaintiff, and the intermixture of nonaccusatory assertions was designed to create an atmosphere of authenticity to hurt and damage the plaintiff, and that the conduct of the defendant was malicious and designed to harm the plaintiff in its business.

Several issues have been presented by this appeal, (1) was the subject matter of the several publications of sufficient public interest and concern to permit the application of the qualified or privileged doctrine, (2) the sufficiency of the allegations of the complaint, and (3) the Statute of Limitations.

In New York Times v. Sullivan, 376 US 254, 11 L Ed2d 686, it was held that before a public official “May recover in libel it must be established that the article was published by the newspaper with actual malice, that is, with knowledge it was false or with such a reckless disregard of whether it was false or not.”

New York Times in itself did not define who may be a public official, however the court quoted with approval Coleman v. MacLennan, 78 Kan 711, 98 P 281, which said, “This privilege extends to a great variety of subjects, and includes matters of pubic concern, public men, and candidates for office.”

In his work on the Law of Torts, 2nd Ed, Í955, Prosser in chapter 19, section 95, states at p 620, “The press, or anyone else, is privileged to discuss the administration of public affairs, and the conduct or qualifications of public officers or candidates and public employees as well as work to be paid for out of public funds ... in which the public has a legitimate interest.”

In the Restatement of the Law of Torts, chapter 25, section 607, it is said that the privilege of criticism applicable to public officials extends to criticizing the work of independent contractors paid for out of public funds, and the work of employees of such contractors.

The conditional privilege afforded the press has been held to be applicable to public persons as well as public officials. Curtis Pub. Co. v. Butts, 388 US 130, 18 L Ed2d 1094, 87 S Ct 1975.

In Turley v. W.T.A.X., Inc., 94 Ill App2d 377, 236 NE2d 778, the conditional privilege rule was applied to a professional architect-structural engineer who was employed in his professional capacity to design, acquire furnishings and equipment for a county building in Sangamon County, Illinois.

The Supreme Court of Delaware in News-Journal Co. v. Gallagher (Del), 233 A2d 166 (1967), in holding that the conditional privilege applied to comments made against one who was performing for a fee, work for the State Highway Department in collecting rentals on houses condemned by the Highway Department, had this to say in commenting whether or not the plaintiff was a public officer within the meaning of the New York Times rule, “Whether or not that be true, it cannot be disputed that he was a public figure in the city and county by virtue of his political position. Moreover the publicity arose out of work he was performing for the State.”

The Supreme Court of the United States in Rosenblatt v. Baer, 383 US 75, 15 L Ed2d 597, 86 S Ct 669, in determining the status of the superintendent of a county owned ski lift stated, “The thrust of the New York Times is that when interests and public discussion are particularly strong, . . . the Constitution limits the protections afforded by the law of defamation. Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply.”

Justice Black specially concurring said in part, “The article here sued on as libelous discusses the use of the public’s money to take care of the public’s business by a paid agent of the public. . . .” Continuing, Justice Black said, “And the right to criticize a public agent engaged in public activities cannot safely, and should not, depend upon whether or not that agent is arbitrarily labelled a ‘public official.’ Nor should the right to criticize depend upon how high a position in government a public agent may occupy. Indeed a large percentage of public moneys expended is distributed by local agents handling local funds as the respondent in this case did.”

We conclude from the tenor of these cases and many others covering the same subject matter that one is a public official if he, the alleged defamed, is carrying out a function of government or is participating in acts relating to matters in which the government has a substantial interest.

The alleged libelous publications by the defendant appear to us as criticisms directed not only against the plaintiff but also certain departments of the State of Illinois.

The plaintiff was engaged in operating a nursing home for the care of the ill, infirm, and subnormal and mentally retarded children, some at least of which were placed in plaintiff’s nursing home as wards of the State of Illinois through authorized agencies of the State of Illinois. A fee was paid plaintiff by the State of Illinois for this care.

These wards of the State were placed in plaintiff’s establishment until such time as a vacancy occurred in State owned and operated institutions for the care of subnormal and mentally retarded children.

Plaintiff’s institution was licensed by the Department of Public Health of the State of Illinois, funds were authorized for the children’s care by the Department of Mental Health of the State of Illinois, and children were placed in the institution by the Department of Children and Family Services of the State of Illinois.

Children found to be subnormal and mentally retarded become wards of the State and the Director of Children and Family Services is vested with the care and training of those wards who then has the right to place the actual physical care and training in State institutions or licensed institutions other than those operated by the State such as the Doctors Convalescent Center, if space is not available in a State institution. In so doing the Director is delegating his responsibility for the care and training of the ward. (C 23, §§ 5001-5041, 111 Rev Stats.)

There are few functions of the State of Illinois in which the public has greater interest and concern that institutionalization of unfortunately subnormal and mentally retarded children.

While it is true that all of the patients in plaintiff’s institution were not wards of the State of Illinois, yet we further believe that the public interest is equally as great in all persons young or old so afflicted.

We are compelled to place plaintiff’s institution in the category of that of a public official.

Concluding as we have we now turn to the sufficiency of the allegations of the complaint.

The complaint alleges a conspiracy and confederation to cause to be printed, published and circulated statements pertaining to the operation of plaintiff’s nursing home and the care of its patients, libelous matters that were false, malicious and designed to harm the plaintiff in its business.

Under the rule laid down in New York Times and other cases previously cited in this opinion the complaint is insufficient in that it fails to allege sufficient facts showing actual malice, that is with knowledge it was false or with such a reckless disregard of whether it was false or not. Such allegations are necessary. Suchomel v. Suburban Life Newspapers, Inc., 40 Ill2d 32, 240 NE2d 1, wherein it was said, “The omitted ingredient of a factual allegation of knowing or reckless disregard of falsity is not supplied by the repetition of adverbs and adjectives.”

To like effect, Arlington Heights Nat. Bank v. Arlington Heights Federal Savings & Loan Ass’n, 37 Ill2d 546, 229 NE2d 514; Turley v. W.T.A.X., Inc., 94 Ill App2d 377, 236 NE2d 778.

Compatible with this rule of pleadings is Coursey v. Greater Niles Tp. Pub. Corp., 40 Ill2d 257, 239 NE2d 837, cited by plaintiff. In that case the court affirmed the sufficiency of the allegations of “actual malice” by saying, “The amended complaint did considerably more than repeat the epithet of ‘actual malice.’ As previously noted, it charged that ‘the defendants, and each of them, intending to injure the plaintiff’s good name and to injure him in his livelihood, with knowledge that it was false and with a reckless disregard to whether it was false or not. . . .”’

In the instant case proof of malice, as alleged, would not support a judgment for the plaintiff.

Pleadings are construed most strongly against the pleader. (Zanbetiz v. Trans World Air Lines, Inc., 72 Ill App2d 192, 219 NE2d 98.)

Neither do we find from the publication itself any matter that would supply or infer that the alleged libelous publications were activated by actual malice, that is, with knowledge that it was false or such a reckless disregard of whether it was false or not.

Suggestion has been made that the allegation of a conspiracy changes the complexion of the necessity of an allegation of actual malice. With this we do not agree.

A civil action will not lie for mere conspiracy since it is the damage done in pursuance of a conspiracy which gives the right of action. (Kovar v. Bremer, 294 Ill App 225, 13 NE2d 656.)

The requirement of actual malice applies to individuals as well as to the news media. (Arlington Heights Nat. Bank v. Arlington Heights Federal Savings & Loan Ass’n, 37 Ill2d 546, 229 NE2d 514.) In this case the complaint was dismissed on motion.

While we entertain some doubt as to the sufficiency of the charge of conspiracy it would not be necessary to pass upon that question. We conclude that assuming a conspiracy has been properly alleged the motives of the conspiracy must be based upon actual malice, that is to say, that they were published knowing the facts to be untrue or with such a reckless disregard of whether the facts were true or not.

We conclude that the trial court was correct in dismissing the suit for want of a sufficient complaint.

In view of the foregoing we deem it unnecessary to discuss the other matters presented in the ease.

The Circuit Court of St. Clair County is affirmed.

Affirmed.

EBERSPACHER, J., concurs.

MORAN, J.,

dissenting:

I agree that the plaintiff corporation, Doctors Convalescent Center, should be classified as a public official under the doctrine set forth in New York Times v. Sullivan, 376 US 254, 11 L Ed2d 686.

However, I believe that we should reverse and remand this case for trial because the complaint can be construed to state a cause of action on the theory that the articles were published with actual malice. Plaintiff’s allegations of a conspiracy to publish libelous matters that were false, malicious and designed to harm the plaintiff in its business, presuppose willful deliberation and are therefore sufficient to state a cause of action. In Dyer v. Davis (La App), 189 So2d 678, 681 (1966), Writ refused 250 La 533, 197 So2d 679, the court said:

“We note that in Article 9 of his petition, plaintiff alleges a conspiracy between defendants in the publication of the allegedly offensive editorial and in Article 10 avers as a fact that the defamatory nature of the comment was known to defendants. In paragraphs 14 and 16 it is avowed in substance that the alleged conspiracy was deliberate, willful, false, and malicious. For the purposes of disposing of the exception of no cause of action, it suffices to state the allegations noted bring the case within the rule of the New York Times decisions, supra, which in effect hold that as regards public officials, to be actionable a libel must be with ‘actual malice,’ which means it must be knowingly false or made with reckless disregard of whether it was false or not. The essence of the verbiage chosen by plaintiff to state his case is what determines whether he has in fact stated a cause of action. The language employed in the case at bar in substance charges actual malice in that it alleges a deliberate and willfully false statement, the equivalent of knowingly false. We hold, therefore, the petition states a cause of action in law.”

The Supreme Court of the United States in New York Times did not prescribe any federal constitutional rules as to how to plead actual malice, but merely laid down the theory that for a public official to establish actual malice a libelous article must be shown to have been published with knowledge or with a reckless disregard of whether or not the article was false. I would therefore hold that the allegation of conspiracy along with the allegations that the statements were false and malicious do not negate the necessity of an allegation of actual malice but rather that they constitute an allegation of actual malice.

Plaintiff also specifically alleges that:

“To the extent that the assertions set out in Paragraph 5 were not technically false, they were made without necessary qualification and in such distorted form as to give a false impression wholly unfair to the plaintiff. The entire series of articles published by the defendant as herein alleged was, and was meant by the defendant to be, a single connected attack upon the plaintiff, and the intermixture of non-accusatory assertions was designed to create an atmosphere of authenticity further to hurt and damage the plaintiff.”

I believe this language describing the reporting being complained of takes this case out of the decision in Suchomel v. Suburban Life Newspapers, Inc., 40 Ill2d 32, 240 NE2d 1, wherein the court decided that actual malice was not apparent on the face of the libelous article because it appeared to be a straightforward report of both sides of a public controversy. The allegation in the present case in substance charges the defendant with intentional false reporting. Then too, in Suchomel the complaint was dismissed on motion for a summary judgment, whereas the complaint in the present case was dismissed on motion directed toward the complaint itself.

The above language quoted from the complaint protesting the manner of reporting brings this case within the ambit of the decision announced in Coursey v. Greater Niles Pub. Corp., 40 Ill2d 257, 289 NE2d 837. The court there stated that the complaint incorporated by reference the article in question which on its face gave rise to factual inferences tending to support the charge of actual malice.

The complaint here alleges that there were printed and published of and concerning the plaintiff, a corporation engaged in the business of operating a nursing home for the care of mentally retarded children, false assertions that it had permitted children under its care to be kept under conditions which were “indescribable” and “unbelievable,” to be beaten, to be given injections by untrained personnel, to have their bodies “covered” with their own excrement, to play with excrement and vomitus, to be kept under conditions “terrifying to them,” to be “filthy” and to stand in “desperate need” of bathing and cleansing, to go about in ragged clothing, without shoes, socks or underwear, to bite and beat each other, to suffer a coma while dehydrated, with an infected throat and bruises, to be “miserable” and “neglected,” to exist under conditions which called for a thorough investigation, to remain in temperature in the 40s, naked except for diapers, to suffer from malnutrition, and from uncleanliness to the extent of open sores on the body and scales on the scalp, and to suffer from various diseases evidencing neglect. The content of the articles in the instant case could also give rise to factual inferences tending to support the charge of actual malice.

For the purposes of considering the motion in this case, we must assume that all of the allegations are true and that therefore the articles complained of were the result of a conspiracy by the defendants to injure the plaintiff’s business by the malicious publication of false statements. These are factual allegations from which actual malice may reasonably be said to exist. I see no purpose in searching for the magic words “. . - with knowledge it was false or with such a reckless disregard of whether it was false or not,” in order to find an allegation of actual malice. New York Times does not so require. The design and willful deliberation which are part of a conspiracy along with the charge of intentional false reporting indicate the presence of knowledge or reckless disregard of it. The only way plaintiff can recover is to prove the designing and planning of the conspiracy which presupposes actual knowledge and to prove that the “intermixture of nonaecusatory assertions was designed to create an atmosphere of authenticity further to hurt and damage the plaintiff.” This latter charge complains of the result of the conspiracy and on its face requires the plaintiff to prove knowledge. A design or conspiracy to create such an atmosphere could only be based on the knowledge that the statements were false. If they were true, there would be no need to conspire to create this atmosphere for the truth itself would be sufficient to achieve the aims of defendant.

When all the allegations are admitted to be true, as must be done, I see no conclusion except that the complaint is sufficient to state a cause of action. Ordinarily, where specific facts are set out in a pleading, the pleader need not state the legal conclusions to be drawn from such facts. In other words, it is sufficient if the pleader states the facts and leaves the court to find the law. (71 CJS 38, Pleading, § 15.) This doctrine is the backbone of our Civil Practice Act which calls for liberal construction of pleadings. “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.” (Ill Rev Stats, c 110, § 33(3).) “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” (Ill Rev Stats, c 110, §42(2).) Liberal construction of pleadings has been the policy of this court. Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc., 72 Ill App2d 488, 218 NE2d 823. The statement by the majority, “(p) leadings are construed most strongly against the pleader,” conflicts with the letter and spirit of the Civil Practice Act and with what we had to say in Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, supra, and Fanning v. Lemay, 78 Ill App2d 166, 222 NE2d 815.

Plaintiff’s complaint sets out in full the newspaper accounts which were the subject matter of this suit. In addition, it specifically alleges that these articles were the result of a conspiracy, were false and reported in a distorted form, and were maliciously designed to harm the plaintiff in its business. When these allegations are admitted as true and construed as a whole, as they must be, the conclusion is inescapable that actual malice is present. At the very minimum, a charge of conspiracy which presupposes a willful deliberation along with a charge that the articles were false establishes a reckless disregard of whether or not the articles were false. To take the time necessary to consider and deliberate and then still publish false articles appears to me to be squarely within the actual malice requirement of New York Times. I therefore dissent.

I would reverse the judgment of the trial court and remand this case for trial.


author: MR. JUSTICE MORAN

text:
    Edward R. Schear, Plaintiff-Appellant, v. City of Highland Park, a Municipal Corporation, James F. Shelton, and the Hartford Accident & Indemnity Company, Defendants-Appellees.
    Gen. No. 68-56.
    Second District.
    December 31, 1968.

      Jerome M. Brooks and Thomas E. Ryan, of Chicago, for appellant.
    Fuqua, Fuqua, Winter and Homer, of Waukegan, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is a personal injury action in which plaintiff appeals from the dismissal of his amended complaint and the amendment to his amended complaint. The issues presented are primarily concerned with the interpretation of certain provisions of the “Local Governmental and Governmental Employees Tort Immunity Act,” Ill Rev Stats c 85, § 1-101, et seq. (1965), enacted on August 13, 1965.

The original complaint filed on May 5, 1967, by plaintiff, Edward Schear, charged that on July 1, 1965, defendant, James F. Shelton, negligently operated a motor vehicle, owned by the City of Highland Park, which vehicle collided with Shear’s auto, causing plaintiff severe injury and damages.

Answer to the complaint was filed on June 2, 1967, wherein the individual defendant admitted operating the vehicle but denied the other material allegations of the complaint. On June 16, 1967, an amended complaint was filed making the City of Highland Park an additional defendant.

On August 23, 1967, on behalf of both defendants, a motion was filed to dismiss the amended complaint, setting forth the six-months’ notice provision and the one-year limitation period as contained in the Tort Immunity Act (Ill Rev Stats 1965, c 85, §§ 8-101, 8-102 and 8-103) and citing sections of Ill Rev Stats 1963, c 24, §§ 1-4-1, 1-4-2 and 1-4-3.

The circuit court dismissed the complaint as to both defendants and by a separate order granted plaintiff leave to file an amendment to the amended complaint allowing joinder of the Hartford Accident and Indemnity Company as a party defendant. Such amendment was filed on December 20,1967, charging Hartford, as liability carrier for the City of Highland Park, its agents and employees, with the financial responsibility for plaintiff’s injuries and alleging that, by its insurance contract with the City, the company waived any defenses allowable under the special privileges and immunities granted in the Tort Immunity Act (supra).

Defendant filed a motion to strike and dismiss the amendment and on March 19, 1968, a final order was entered, striking the amendment to the amended complaint and denying plaintiff leave to file a second amended complaint. Judgment was entered for the defendant.

At the time of the accident, there was a one year statute of limitations on personal injury actions against municipalities. (Ill Rev Stats 1963, c 24, § 1-4-1.) When the Tort Immunity Act was adopted in 1965, this same limitation period of one year was retained. (Ill Rev Stats 1965, c 85, § 8-101.) As has been noted, plaintiff’s amended complaint, wherein the city was for the first time made a defendant, was not filed until almost two years after the accident.

Although the Tort Immunity Act did not change the limitation period for personal injury actions against municipalities, it did somewhat change the notice requirement. The statute in effect on the date of the accident, (c 24, § 1-4-2) provided that, within six months after an injury was sustained, a person contemplating suit “. . . against any municipality for damages on account of any injury to his person,” was required to file a written notice with the city, stating his name, address, the date and place of the accident, and the name of his attending physician. Section 1-4-3 of the statute provided that, if the required notice was not given, the suit should be dismissed with prejudice.

The Tort Immunity Act of 1965 contains a similar notice requirement, but with one important addition that is relevant here: It provides that the six months’ notice must be given before suit is commenced against “. . . a local public entity” (which included a municipality) “. . . or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury . . . .” (Ill Rev Stats 1965, c 85, § 8-102.) Section 8-103 provides that if the required notice is not given, then “. . . any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury,” shall be dismissed with prejudice.

After plaintiff filed his amended complaint, the defendants filed a motion to dismiss, supported by an affidavit of the City Clerk to the effect that no six months’ notice had ever been served. The grounds of the motion were this failure to serve the notice and the failure to file suit against the city within one year. The lower court granted the motion as to the city on the basis that no notice had been given and suit had not been commenced within one year. The motion was also granted as to the employee, Shelton, on the theory that the notice requirement of the 1965 Tort Immunity Act was retroactive, inasmuch as it was procedural rather than substantive. (The one-year Statute of Limitations applies only to the action against the city, and does not apply to Shelton, as to whom the limitation period would be the general two-year statute on actions for personal injury.)

We believe that the lower court was correct in dismissing the amended complaint against the city, but that it erred in dismissing the complaint against Shelton. We think the dismissal of the city was proper because the city was not sued within one year and a one-year statute of limitations was in effect at all times. Plaintiff now seeks to argue that a one-year statute in favor of governmental bodies is unconstitutional in view of the fact that the general limitation period for personal injury actions is two years. However, this point was not raised in the lower court. Accordingly, it was waived and we do not consider it.

At the time of the accident, it was not a prerequisite to a suit against Shelton that any notice be filed. This requirement did not apply to suits against city employees until the new Act became effective on August 13, 1965. We disagree with the lower court that this requirement can be applied retroactively since it is merely “procedural.” Failure to comply is a complete bar to the action and we, therefore, regard the requirement as a matter of substance rather than procedure. We think it clear that the retroactive application of the notice requirement would deprive the plaintiff of a cause of action which had accrued prior to the time the requirement first became law. We believe that cases involving statutes of limitation are closely analogous. In Tatge v. Hyde, 84 Ill App2d 310, 228 NE2d 179 (1967), a statute shortening the limitations period in regard to actions against personal representatives of deceased persons was held to be prospective only, so that it did not bar an action which accrued prior to its passage but which had not been filed until after its passage. The court reviewed the authorities and quoted from Carlin v. Peerless Gas Light Co., 283 Ill 142, 144, 119 NE 66 (1918), where the Supreme Court had held that a statute shortening the time within which to bring a wrongful death action “. . . will be given a prospective effect unless there appears a clear intention to the contrary, and then only where reasonable time is allowed in which to enforce existing rights.”

In the instant case, we find nothing in the 1965 statute to indicate a legislative intention that the notice requirement be made retroactive. Moreover, while a retroactive application of the requirement would have given this plaintiff a reasonable time within which to file the notice, this would not have been true of persons whose actions against municipal employees had accrued more than six months but less than two years prior to August 13, 1965. In this connection, we believe the following language of the court in Tatge v. Hyde, supra, at page 317, is relevant:

“Applying the pronouncements made in the Carlin case, we believe that although it appears in the instant case that a reasonable time in fact was left at the time of the effective date of the amendment to enforce plaintiff’s cause of action, nevertheless a retroactive construction would include cases in which a reasonable time might not have existed to enforce an existing cause of action. It is reasonable to assume that if retroactivity was intended by the legislature, an effective date would have been included in the amendment.”

See also the general statement of the rule in 25 ILP, Limitations, § 7, pp 183-184:

“A statute of limitations will be given prospective effect, and not a retroactive operation, unless a legislative intent to the contrary is clearly manifested. Such statutes, since generally they operate only in futuro, ordinarily leave existing liabilities to be governed by the statutes already in force. Thus a statute reducing the time within which to commence an action on any instrument ordinarily operates prospectively only, and does not apply to instruments executed prior to such date.
“Even when a legislative intent is manifested to give a statute of limitations a retroactive operation, effect will be given to such intent only if a reasonable time is allowed in which to enforce existing rights.”

On the same date that the amended complaint was dismissed, plaintiff filed another pleading designated as an amendment to the amended complaint, and this was also dismissed. In this pleading he joined the Hartford Accident and Indemnity Company, alleging that this company had issued a policy of liability insurance which covered the city and Shelton for the occurrence in question and that this policy contained a waiver by the company of “any right to refuse payment or to deny liability within the limits of said policy by reason of the nonliability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided by law.” It went on to allege that the attorneys who appeared for the city and Shelton were actually acting on behalf of the insurance company and that, in moving to dismiss the amended complaint on the basis of the statute of limitations and the six months’ notice requirement, the company breached this provision of the policy. The pleading concluded with the allegation that “as a result of the direct violation of the terms of the policy issued by the Hartford Accident & Indemnity Company, said defendant, the Hartford Accident & Indemnity Company, would be legally responsible for the negligent acts, if any, of the defendants, City of Highland Park, a municipal corporation, and James F. Shelton.”

This amendment was predicated upon the plaintiff’s understanding of the following provisions of the 1965 Tort Immunity Act:

“9-103 (a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. Such insurance shall be carried with a company authorized by the Department of Insurance to write such coverage in Illinois. The expenditure of funds of the local public entity to purchase such insurance is proper for any local public entity.
“9-103 (b) Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.”

The meaning of these insurance provisions has not been the subject of any reported Illinois case as yet, and there appear to be substantial questions of interpretation presented. See the discussion in Comment, 61 Northwestern UL Rev 265, 273-275 (1966). Plaintiff argues that the one-year statute of limitations and the six months’ notice provision are contemplated by the language “nonliability of the insured public entity” and “its immunity from suit by reason of the defenses provided in this Act” in subsection (b). We do not believe this language is subject to that construction. Sections 2-102 through 6-109 of the Act purport to confer tort immunity upon various local entities and their employees in various kinds of situations. For instance, section 2-102 provides that “Notwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in any action brought directly against it by the injured party.” The next section, 2-103, simply to provide another example, provides that “A local public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” We believe that this is the kind of nonliability “and defenses and immunities” referred to in subsection (b) of section 9-103. If the defense of limitations were contemplated by this language, this would mean that the insurance company could not raise the statute even if the suit were to be brought some twenty years after the alleged injury. Clearly, it is unreasonable to suppose that such a result was intended by the legislature.

We have already held that the notice provision does not apply to plaintiff’s suit against Shelton, so the only question we really have to decide in connection with the amendment to the complaint is whether subsection (b) of section 9-103 precludes the defense of limitations insofar as the city is concerned. For the reasons indicated, we hold that it does not. Consequently, since the city is not liable, we do not reach the question of plaintiff’s standing to bring a direct action against the insurance company, nor the sufficiency of the pleading in other particulars.

The judgment of the lower court will be affirmed insofar as it dismissed the complaint against the City of Highland Park and the Hartford Accident and Indemnity Company. The portion of the judgment which dismissed plaintiff’s amended complaint against the defendant Shelton will be reversed, and that portion of the cause will be remanded to the lower court with directions to require the defendant Shelton to answer the amended complaint.

Affirmed in part, reversed in part, and remanded.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Ree Harmon, Defendant-Appellant.
    Gen. No. 50,768.
    First District, Fourth Division.
    December 31, 1968.

      William C. Starke, of Chicago (Starke, Anglin, Savage, Frazin, Stewart & May, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Two indictments were returned against Willie Ree Harmon on March 24,1964. The first indictment charged that on March 5, 1964, the defendant murdered Minnie Thomas Cook; the second indictment charged that on the same day the defendant murdered Willie Dean Stewart. Defendant entered a plea of not guilty and was tried before a jury which returned a verdict that he was not guilty of the murder of Minnie Cook, but found him guilty of the murder of Willie Dean Stewart. A motion for a new trial was denied, and the court sentenced the defendant to a term of not less than 25 nor more than 50 years in the penitentiary.

In this court the defendant urges that he was not proved guilty beyond a reasonable doubt; and that the court erred in failing to instruct the jury in the presence of the defendant, his attorneys and the State, in response to a question presented by the jury to the court during the deliberations of the jury. Since the case is being reversed on the ground that the court erred in failing to so instruct the jury, it is not necessary to have a detailed statement of the evidence presented before the court. The evidence was in sharp conflict.

After all the evidence was heard and the jury had been instructed, the jury retired for deliberation. The defendant’s attorneys went to dinner at a nearby restaurant and left with the bailiff a written note giving the name, address and telephone number of the restaurant so they could be reached if their presence should be required. Quoting from the State’s brief: “In the course of deliberation the jurors phrased a question for the court concerning the possibility of accidental homicide in the slaying of Willie Dean Stewart.” On a hearing of the motion for new trial the bailiff testified that in responding to a “buzz”'from the jury room,

“At the time I communicated with the Jury, the Foreman or other persons in the Jury Room asked me certain questions. They asked me something in regard to legal questions, and I told them I couldn’t answer them. I did not submit the questions that they submitted to me to the Judge. I merely went back and told the Judge what they wanted me to do. . . . After communicating with the Judge, the Judge merely told me that they heard the evidence and leave the law up to the Judge. I then went back to the Jury Room, informed them what the Judge told me, and they thanked me and I closed the door and came out.”

At that time the defendant was not brought into the presence of the court, nor did the witness communicate with any of the counsel in the case, nor did the court ask him to communicate with counsel.

The court then stated the following recollection of the situation:

“The Bailiff knocked on my door. I opened the door and said, ‘What is it?’ He said, ‘The Jury has a legal question.’ I said, ‘Call the attorneys.’ My recollection is that he said, ‘They are not here.’ I said, ‘Tell the Jury the legal questions will be resolved by the Court. They have the problem of the facts. They have all the Instructions.’ ”

Counsel for the defendant then was given leave to file affidavits, and in support of the motion for new trial, William C. Starke, an attorney for the defendant, filed an affidavit to the effect that both he and his co-counsel left word with the “court captain” that they could be reached at Febo’s Restaurant, in the event their presence should be required by the court, and that at no time were they called at the restaurant.

Irwin L. Frazin, an attorney for the defendant, also filed an affidavit in which he stated that he had a conversation with John O’Grady, a member of the jury, who advised him that during its deliberations the jury had occasion to present to the court by a bailiff a question “the contents of which was whether a homicide would be murder or accidental if a person pointed a gun at a second person, the gun accidentally discharged, and a third person was killed.” Frazin also stated that he was further advised by O’Grady that to the best of his recollection, the response returned by the court by a bailiff was that the jury had all the facts and should continue to deliberate. Frazin further stated that after he read to O’Grady the question of the jury and the response of the court, O’Grady told him that to the best of his recollection it was correct; and that O’Grady said he would not sign an affidavit.

The court overruled the motion for a new trial.

In its brief in this court the State argues that the jury had been properly instructed in the first instance, and that the court gave the jury 15 instructions. The jury apparently had a doubt as to whether the homicides would be murder or accidental death. The first of their doubts was as to the result of a person pointing a gun at a second person, the gun accidentally discharging and killing a third person. There is sufficient in the record to cause the jury to consider that factual question. The State quotes in this court from Instruction No. 11:

“The Court instructs the jury, in the language of the statute, that a person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death, he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another.”

That instruction does not cover the point raised by the jury, since under this instruction there would necessarily be an intent to kill or do great bodily harm to the person who is killed, or to another. Nor is there anything in the other instructions which would have any tendency to enlighten the jury on the point raised.

In People v. Porter, 11 Ill2d 285, 143 NE2d 250, the rule is laid down that the instructions considered as a whole must fully state the law relating to the theories for prosecution and defense. In People v. Hudson, 258 Ill App 378, the court said at page 381:

“It has been frequently held that a court may give additional instructions in a criminal case after a jury has retired in the presence of the defendant and his counsel where also an opportunity is given to the defendant to submit further instructions if he so desired.”

In People v. Tilley, 411 Ill 473, 104 NE2d 499, the question was raised as to whether the judge committed reversible error in communicating with the jury after they had retired to consider their verdict. The trial had ended on a Saturday, and the jury deliberated all night without arriving at a verdict. The next morning the judge went to the jury room in the company of a bailiff, and inquired whether there was any hope of arriving at a verdict. One of the jurors said they wanted further information, and the judge told them to read the instructions. He explained that any new instructions would have to be given in the presence of the attorneys and the defendant. One of the jurors then asked the meaning of defendant’s waiver as to proof of having performed the abortion, and inquired whether defendant in that statement admitted performing an abortion. The judge answered that he had not because the defendant specifically denied that he had performed the abortion. The court found that the jury had been sufficiently instructed, and held that under the decision in People v. Brothers, 347 Ill 530, 180 NE 442, the rule had been announced that judgments will not be reversed when it is apparent that no injury has resulted from a communication to the jury, either by the court or by third persons. The court further held that while the communication by the judge with the jury was “highly imprudent,” it was clear that the statements in themselves could by no possibility work an injury to defendant’s interest. There was a strong dissenting opinion by Mr. Justice Bristow, and the Supreme Court affirmed the judgment.

In People v. Beck, 305 Ill 593, 137 NE 454, a conviction was reversed. The jury had sent a note by the bailiff to the judge asking if it was unlawful to manufacture intoxicating liquor for one’s own use before July 1, 1921. The judge, in the absence of the defendant and his counsel, told the jury he could not instruct them orally in response to the inquiry, and read an instruction to them. The court held the instruction was erroneous, but further held that regardless of the question of the correctness of the instruction, the action of the court was error for which the judgment must be reversed. The court held at page 596:

“The defendant was entitled to a public trial by jury, in every part of which he had a right to participate, to be present at every stage of the proceedings, to know everything that was done, to make objections, and to take such action as he might think best for securing his rights and for his protection. The law is well settled in this State that it is error for which a judgment will be reversed for a trial judge to hold any communication with the jury after their retirement to deliberate upon their verdict, except in open court.”

To the same effect is People v. McGrane, 336 Ill 404, 168 NE 321.

In State v. Beeny, 115 Utah 168, 203 P2d 397, the defendants were convicted of rape. After the jury had deliberated for more than two hours they returned to the courtroom and the foreman stated that they would like to know, in view of the fact that defendants admitted having sexual intercourse, whether the jury could consistently find them guilty of a lesser charge than rape. The indictment included other sexual offenses. The court tried to contact counsel for both sides and failed to get in touch with defendant’s counsel. The court told the jury that it was not permitted to reinstruct them in that case, and asked if the jury was having difficulty understanding the meaning of any instruction. The foreman replied: “I think we are fairly clear on the instructions, other than in the one set of circumstances that we outlined in the question.” The court told the jury that the matter was not for the court, but for the jury to decide, and sent them back. They returned a verdict of rape. In its opinion the court laid down the rule that when the jury retired for deliberation, if there was any disagreement as to the testimony, or if they wished to be informed on any point of law, they must require the officer to bring them into court. The information must then be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel. Under the circumstances, the court should have delayed the proceedings for such length of time as would have sufficed to make diligent effort to secure counsel’s presence. The court held that failure to clarify the instructions was prejudicial to the rights of the defendants, and the judgment was reversed and the case remanded for new trial.

In 23A CJS, Criminal Law, § 1376, at page 1000, it is said:

“If jurors differ as to the instructions they should come into court and have them repeated, or if they wish more information as to the law they should request it of the court, and it has been held that it is not only the right but the duty of the court to reinstruct on any question of law arising from the facts on which the jury say they are in doubt, and on which they ask further instructions. Where the jury make their difficulties explicit, the judge should clear them away with concrete accuracy; and where the question asked is not clear, it is the duty of the court to seek clarification.”

The statement is supported by numerous cases from other jurisdictions.

In People v. Gonzalez, 293 NY 259, 56 NE2d 574, the court laid down the rule that “if to a proposed question the Court gives no answer at all or an answer that fails to answer, then the error is reversible.” Also see People v. Gezzo, 307 NY 385, 121 NE2d 380.

In the case before us, as we have pointed out, the instructions given to the jury did not fully state the law as to the particular matter about which the jury requested further information; and even under the rule laid down in Tilley, previously referred to, the failure to further instruct the jury was prejudicial to the defendant.

In any event, the procedure followed by the trial court in its communication with the jury outside the presence of the defendant and his attorney was, in itself, sufficiently prejudicial to require reversal of the conviction.

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

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.