text:
    Robert Stephenson, Plaintiff-Appellee, v. Air Products and Chemicals, Inc., Defendant-Appellant.
    Gen. No. 68-94.
    Fifth District.
    October 10, 1969.

      Chapman, Strawn & Kinder, of Granite City, for appellant.
    Carr, Raffaelle & Cook, of East St. Louis (Rex Carr, of counsel), for appellee.
   GOLDENHERSH, P. J.

Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $300,000.

In the first trial of this case, the jury returned a verdict in favor of plaintiff, the circuit court ordered a new trial on the issue of damages only, and this court denied plaintiff’s petition for leave to appeal.

The injuries of which plaintiff complained in the first trial were suffered on July 7, 1961. Prior to the second trial, plaintiff amended his complaint to allege that as a result of his permanent injuries he “has been caused to suffer additional injuries. . . .” Defendant filed a motion stating that upon taking plaintiff’s deposition it learned of a fall allegedly suffered on June 24, 1966, and plaintiff Was contending the fall occurred because of the condition of his leg as the result of the injuries sustained in July 1961. In compliance with an order entered by the circuit court, and to meet issues raised in defendant’s motion to strike or make more definite and certain, plaintiff amended his complaint to allege that as a direct and proximate result of the injuries previously suffered “and inherently related to these same injuries, plaintiff was caused to fall on the 24th day of June, 1966, at Irving School in St. Louis, Missouri, while he was in the exercise of ordinary care for his safety and without the intervention of any intervening cause or condition, plaintiff did sustain severe and additional injuries to his head, body and right foot, including a fracture thereof, which said injuries are permanent and permanently disabling.”

Plaintiff testified that he is 41 years of age, has a tenth grade education; prior to July 7, 1961, his health was good; he has been employed as a painter for 15 years; in July of 1961, a flagpole fell while he was painting it and he fell 20 to 25 feet to the rooftop on which it was mounted; he was treated by various physicians; he returned to work in 1963; he could not do the required lifting and his fellow workers helped him; his leg “folded up” on him on many occasions; he described falls while working in 1963 and 1964, and on other occasions when he was not working. In June 1966, while painting in a school his left leg “folded up” and he fell off a pick and broke his foot. A pick is a walk board that is placed on two ladders.

Louis Mifflin testified that he is a painter, had known plaintiff 10 or 15 years, was working with plaintiff on July 7, 1961, when a flagpole at defendant’s premises gave way while plaintiff was working near its top; he worked with plaintiff on various jobs; prior to July 7, 1961, plaintiff had performed his work well, but on jobs between 1963 and 1966, plaintiff “performed his work very poorly” and needed help in carrying paints and ladders; plaintiff sustained several falls; he was working with him on June 24, 1966, when plaintiff started to make a step, “his leg collapsed” and he fell 8 feet off a pick.

Donald Cook, a painter, testified that he had worked with plaintiff at various jobs since April 1963, plaintiff fell on a job in “the middle of 1965” and said “his leg gave way on him”; he described falls suffered by plaintiff later in 1965 and May 1966.

Raymond Reed, a painter, had worked with plaintiff on various jobs since April 1963; on a job in September, 1964, plaintiff’s leg gave way and he fell, he was laid off the job several times and Reed, as shop steward, intervened to get him back on; plaintiff needed help to lift things on the job; he fell on another occasion.

Dr. Bart Cole, an orthopedic surgeon, testified that he was called by Dr. Bowers to see plaintiff, who was then confined to St. Elizabeth’s Hospital in Granite City. Plaintiff stated he had suffered a fall, prior to which he was in good health. He complained of pain in his neck, back and shoulders. The doctor identified X rays which he stated revealed loss of normal cervical lordosis and scoliosis. He made a diagnosis of cervical radiculitis and a lumbosacral joint derangement. Plaintiff was seen by Dr. Cole three times in 1961, seven times in 1962, in April 1963 and June 1964. He continued to have trouble with his neck, shoulder and back. There was a limitation of motion in lateral bending and a loss of left ankle reflex.

Dr. Cole saw plaintiff in 1966 at St. Mary’s Hospital in East St. Louis. He gave a history of an injury several days earlier when his leg “gave way” and he fell. X rays revealed a compression type fracture of the right heel bone. X rays taken in January 1967 showed the loss of cervical lordosis and scoliosis as observed earlier, but with some improvement.

Examination in January 1967 showed a loss of motion in the right foot and an X ray in June 1967 showed subtaler arthritis.

Dr. Cole expressed the opinion that the condition found in plaintiff’s neck and lower back might or could result from the fall on July 7, 1961, and was permanent. In answer to a hypothetical question he expressed the opinion that there might or could be a causal connection between the injuries suffered on July 7, 1961, and the fall on June 24, 1966. He stated that in his opinion the condition found in plaintiff’s foot was permanent, and plaintiff was unable to carry heavy objects, climb, or walk on uneven surfaces.

Dr. John McMahan, a psychiatrist testified that he first saw plaintiff on September 17, 1962. He enumerated plaintiff’s complaints, reviewed the history given him and stated he had made a diagnosis of psychophysiological musculoskeletal disorder. He prescribed tranquilizers, and because plaintiff’s condition did not improve, he was hospitalized on October 19, 1962. He was given electric shock treatments, and discharged on November 2. In his opinion the disorder described was “connected with” the fall on July 7, 1961. He last saw plaintiff on April 30, 1963, at which time he stated he had gone back to work and “was getting along fairly well.”

Dr. John W. Deyton, a specialist in physical medicine and rehabilitation, saw plaintiff for the first time on January 18, 1967. Plaintiff related a history of a fall while painting a flagpole in 1961, was hospitalized, and as the result of his injuries did not work again until April or May of 1963. He told him of a fall on June 24, 1966; he complained of headaches, pains in the shoulders and neck, pain in his arms, loss of grip, pain in the leg, nervousness, and inability to sleep. He wore orthopedic shoes and there was minimal weight bearing on the right foot.

Dr. Deyton testified that upon examination he found restriction in the range of motion of the neck, restriction of motion in the shoulders, limitation of motion of the back, evidence of a fracture of the right heel and ankle, tenderness of the back on palpation, and atrophy of the right leg. He expressed the opinion that plaintiff could not perform work which required bending or lifting, looking up, shoulder flexion or back extension. He found arthritis in the ankle and evidence of pain which would persist until fusion, either surgical or natural, was effected of the heel bone and “second” bone. He believed plaintiff’s condition to be permanent.

Dr. W. W. Bowers, called by defendant, testified that he saw plaintiff in his office on July 7, 1961. He was sent home, called later complaining of pain and was sent to the hospital. He developed a paralysis of the bowel which cleared up but he continued to complain of pain in the left shoulder, numbness of the left hand, pain- in the chest and left side of the abdomen. All of the symptoms could result from a severe blow to the area affected.

Dr. Lee T. Ford, an orthopedic surgeon, called by defendant, did not examine plaintiff but testified from X rays.

Dr. Norman Shippey, a radiologist, called by defendant, identified and testified with respect to a number of X rays.

Defendant contends that the trial court erred in admitting evidence of plaintiff’s fall on June 24, 1966, and testimony with respect to the injuries suffered at that time. It argues that thé injury of June 24, 1966, is not the natural or probable result of defendant’s negligence and it cannot be held liable therefor.

Plaintiff contends that whether the second injury proximately resulted from the injury suffered on July 7, 1961, is a question of fact for the jury.

The abstract proposition of law presented is stated in Restatement of Torts (2nd) :

“§ 460. Subsequent Accidents Due to Impaired Physical Condition Caused by Negligence. “If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.”

That the application of the rule to factual situations is sometimes difficult is apparent from an examination of the cases gathered and discussed at 9 ALR 255, 20 ALR 524, and 76 ALR 1285. The majority rule appears to be that whether the harm sustained in a subsequent occurrence resulted from the impairment or injury suffered in the first occurrence is a question of fact for the jury. Eli Witt Cigar & Tobacco Co. v. Matatics (Supreme Court of Florida), 55 So2d 549; Underwood v. Smith, 261 Ala 181, 73 So2d 717; Stephenson v. F. W. Woolworth Co., 277 Minn 190, 152 NW2d 138. The fact that the site of the original injury was not the same as the site of the later injury is not determinative that the cause of the original injury did not proximately produce the later injury. Brenan v. Moore-McCormack Lines, 3 App Div2d 1006, 163 NYS2d 889 (Supreme Court, NY Appellate Division, First Department); Creech v. Riss & Company, Inc. (Supreme Court of Missouri), 285 SW2d 554.

The rule as stated is consistent with the holding of Chicago City Ry. Co. v. Saxby, 213 Ill 274, 72 NE 755, that the question whether plaintiff’s injuries were the result of defendant’s negligence, or resulted from some other cause, is one of fact.

To sustain defendant’s contention would require us to hold as a matter of law that there is no causal connection between plaintiff’s second fall and the injuries which resulted therefrom. The record contains evidence that the causal relationship exists, and its sufficiency should be determined by the same standards which apply to direction of verdicts and entry of judgments n. o. v., Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. Applying the test of Pedrick to the record before us, we hold that the issue was properly one for the jury.

Defendant argues that the evidence shows plaintiff was guilty of contributory negligence as a matter of law in working on a pick, knowing that his leg might “fold up,” causing him to fall. The record shows that defendant tendered, and the court gave, instructions which defined contributory negligence and told the jury that with respect to the occurrence of June 24,1966 plaintiff had the burden of proving that before and at the time of the occurrence he was using ordinary care for his own safety and the additional injuries suffered as the result thereof are the direct and proximate result of the injuries suffered by plaintiff on July 7, 1961, and if they found either proposition has not been proved the verdict should not include any damages for those injuries. Applying the rule of Pedrick to the record before us, the question of whether plaintiff’s negligence contributed to cause his fall of June 24, 1966, was properly one for the jury.

Defendant concedes there is authority for the award of damages for subsequent injuries but argues that recovery has been limited to those instances in which the second injury was suffered within the period of convalescence from the original injury. Some of the cases cited appear to support its contentions, but in our opinion, there is no sound basis for so holding. The test is whether there is a sufficient causal relationship and we are not persuaded that recovery should be limited to occurrences within the period of convalescence.

Defendant states “the basic question can be simply put —where does the responsibility on this or any other defendant end?” It ends where it has always ended — when the injured person has been compensated for the damage resulting from its negligence.

Defendant contends that any cause of action from injuries resulting from the occurrence of June 24, 1966, is barred by the Statute of Limitations (c 83, § 15, Ill Rev Stats 1967). We have examined the authorities cited (Larkin v. Gerhardt, 21 Ill App2d 122, 157 NE2d 426; 171 ALR 1087) and do not find them in point. Plaintiff, in his amendment, did not allege a new cause of action— he enumerated alleged further consequences of defendant’s negligence.

Defendant argues that the trial court ignored a pretrial order entered by another judge, and in so doing made a fact issue of a question which the judge who conducted the pretrial proceeding decided as a question of law. It concedes that a pretrial order may be amended at the trial, but argues that no amendment may be made which will result in substantial prejudice to a litigant. We have examined the pretrial order and fail to see in what manner defendant was prejudiced. The record does not bear out its contention that as the result of the trial court’s failure to follow the pretrial order it was required to assume the burden of proving plaintiff was contributorily negligent and the fall of June 24, 1966 was an intervening cause which would relieve it of liability for the injuries suffered therein. The case was tried, and the jury instructed, on the theory contemplated by the pretrial order, i. e., that plaintiff, with respect to the occurrence of June 24,1966, was required to prove that he was, at that time, in the exercise of due care, the injuries suffered at that time were the proximate result of the first injury, and did not result from an independent, intervening cause.

Defendant contends the trial court erred in denying its motion for a continuance after it allowed plaintiff to increase his ad damnum from $200,000 to $500,000. The denial of a motion for continuance is left to the sound discretion of the trial court. The record shows that when counsel for defendant argues the reason for the need for a continuance, 1. e., the involvement of another liability carrier, they were misinformed as to the applicable coverage. In denying the motion, the trial court did not abuse its discretion.

Defendant moved for a directed verdict both at the close of plaintiff’s case and at the close of all the evidence “as to that part ... of the amendment to complaint which relates to the injuries allegedly sustained by plaintiff on the 24th day of June, 1966. . . .” It contends that the court erred in denying the motions.

As previously stated, applying the test of Pedrick we cannot say that the court erred in denying the motions.

Defendant contends the court erred in refusing to give its tendered instructions numbered 5, 6 and 11. Instruction number 5, not in IPI, purports to instruct on contributory negligence, already covered by defendant’s instruction number 2 (IPI 10.03).

Defendant’s instruction number 6 purports to be an issue instruction in the form of IPI 21.03, and states that defendant has pleaded, as an affirmative defense, that any injuries suffered in the occurrence of June 24, 1966, were not the result of the fall of July 7, 1961, but “were a direct and proximate result of an intervening cause.” The instruction, as tendered, advises the jury that plaintiff has the burden of proving certain enumerated propositions but fails to instruct them that the defendant has the burden of proving its affirmative defense.

Defendant’s instruction number 13 instructed the jury that plaintiff had the burden of proving that any additional injuries suffered in the occurrence of June 26, 1966, are a direct and proximate result of the injuries suffered on July 7, 1961, and if he failed so to prove the verdict should not include any damages for those injuries. The jury was adequately instructed with respect to the issue of proximate cause of the occurrence of June 24, 1966, and in view of that fact, and the defect in the tendered instruction, the court did not err in its ruling.

What we have said with respect to defendant’s instruction number 6 is equally applicable to its number 11, and the court did not err in refusing the instruction.

Defendant tendered a special interrogatory in the following form “Was the plaintiff in the exercise of ordinary care for his own safety on June 24, 1966?” It has long been the rule that a special interrogatory should not be given unless the answer thereto could control the general verdict. Under the theory upon which this case was tried, no contention is made that defendant was guilty of a second tort or act of negligence. The issue with respect to the second injury is whether it was proximately caused by the first; therefore, a negative answer to the interrogatory could serve to reduce, not set aside, a verdict in favor of plaintiff, and the court correctly refused to submit it. Further, the interrogatory is improper in form in that it fails to limit the inquiry to “before and at the time of the occurrence.” (See IPI 10.03.)

During the conference on instructions, defendant tendered forms of verdict which provided for separate findings with respect to the occurrences of July 7, 1961, and June 24, 1966. The court refused to submit these verdicts to the jury. The form of verdict submitted to the jury provided only for the assessment of plaintiff’s damages.

Section 65 of the Civil Practice Act (c 110, § 65, Ill Rev Stats 1967) provides “Unless the nature of the case requires otherwise, the jury shall render a general verdict.” The single issue to be determined by the jury was the amount of plaintiff’s damages, and there is no statutory provision for specific findings with respect to the elements of damage upon which the verdict is based. The court correctly refused to submit the tendered forms of verdict.

Defendant contends the verdict was grossly excessive and resulted from passion and prejudice on the part of the jury.

The testimony shows plaintiff continued to suffer pain, walks with a limp and requires the use of a cane. There is substantial evidence from which the jury could have decided that plaintiff was industrially unemployable and unable to pursue his trade of painter. He testified to a substantial loss of earnings up to the time of trial. At 41 years of age, he had lengthy life and work expectancies.

The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury.

Our conclusion, following careful examination of the record, is best described in the following statement found in the opinion in Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63, at page 453:

“We are not unmindful of our obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. This we have done, and we conclude from the evidence that although the verdict may well be in excess of the amount which the judges of this court would have allowed if they had heard the evidence and made the original determination, yet we do not believe that it is so excessive as to show passion or prejudice.
“We therefore conclude that the verdict and judgment below are correct and the judgment is affirmed.”

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    Edward Witzig, Plaintiff-Appellant, v. Illinois Power Company, a Corporation, Defendant, Third-Party Plaintiff-Appellee, and Klopfenstein Grain Company, Third-Party Defendant-Appellee.
    Gen. No. 11,062.
    Fourth District.
    October 16, 1969.
    Rehearing denied November 18, 1969.
    Costigan and Wollrab, of Bloomington (Guy Fraker, of counsel), for appellant.

      Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Ralph E. Schroeder, of counsel), and Heyl, Royster, Voelker & Allen, of Peoria (Lyle W. Allen, Richard M. Baner and Duncan B. Cooper, III, of counsel), for appellee.
   SMITH, J.

The single issue in this case is whether or not the plaintiff’s own discovery deposition contains admissions which convict him of contributory negligence so that the trial court was justified in granting the defendant’s motion for summary judgment. The trial court held that it did and there being no triable issue of fact on this point, entered a judgment in favor of the defendant in bar of plaintiff’s suit. Plaintiff appeals.

This court has had occasion recently to consider the rules applicable to summary judgment, Brooks v. Dean Berenz Asphalt Co., Inc., 83 Ill App2d 258, 227 NE2d 100, and also while sitting in the first district, Watkins v. Lewis, 96 Ill App2d 182, 237 NE2d 830. In each of these cases, we carefully enunciated the rules applicable and their repetition in this opinion would appear to be pure redundancy. In the Berenz case, we held that summary judgment was proper; in the Watkins case we held that summary judgment was improper. We applied and used the same rules in reaching diametrically opposite results for the very simple and cogent reason that the facts in the cases were different. Plaintiff cites Cannon v. Thompson, 33 Ill App2d 233, 179 NE2d 37, as well as our own Watkins case, to indicate that the courts are disenchanted with summary judgments and that the case at bar is typical of why that is so. While we do not read those cases to so indicate and certainly not to so hold, the blunt fact remains that a motion for summary judgment should be allowed on motion of either party where there is no genuine issue of any material fact to litigate. As stated in Allen v. Meyer, 14 Ill2d 284, 292, 152 NE2d 576, 580, the policy is succinctly stated thus:

“Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.”

Plaintiff suggests that contributory negligence is a question ordinarily to be decided by a jury. This may be conceded. He asserts that to decide that issue on a motion for summary judgment denies him his day in court. That, too, may be conceded. Actually a motion for summary judgment only decides that there is no reason for the plaintiff or anybody else to waste a day in court when there is no genuine issue or material fact to be decided. All we have before us and all the trial court had before it was whether or not on this record there is a genuine issue of a material fact to be tried. The trial court thought not — we agree.

In Watkins, we indicated that the defendant’s counteraffidavit on the plaintiff’s motion for summary judgment raised a single defense — sudden mechanical failure; that this defense introduced material questions as to proximate cause and the application of the doctrine of emergency, and that there were inferences from this defense which presented questions of material fact for determination by a jury. In Brooks, we made a contrary determination that there were no facts or inferences in the record before us which would allow the plaintiff to submit the decisive issue of the defendant’s negligence to a jury. The trial court held from the plaintiff’s deposition that a like situation exists here. We agree. It was recently stated in Texaco, Inc. v. Kane County Oil, Inc., 96 Ill App2d 383, 390,238 NE2d 622, 626:

“We agree that the purpose of a summary judgment is not to try issues of fact, but only to determine whether material issues of fact exist. An examination of the entire record in this case does not show any material issues of fact, but rather, arguments and legal questions as to the effect of the material facts. We believe that the trial court was correct in holding that no genuine issue of fact remained, and that the cause of action was determinable as a question of law.”

The testimony of the plaintiff in this case creates the same precise situation and the trial court correctly so held.

We turn now to the plaintiff’s deposition in the light of Supreme Court Rule 212, which provides that discovery depositions may be used only "(2) as an admission made by a party ... in the same manner and to the same extent as any other admission made by that person) ;....” Ill Rev Stats 1967, c 110A, § 212.

Plaintiff cites 69 ALR2d, p 51, for the proposition that in actions against the power company for injuries due to contact with electrical wires through an object held by the plaintiff, the question of contributory negligence is generally a jury question, particularly where it appears that he did not have knowledge of the specific danger which caused the injury. In the case at bar, the plaintiff testified that he had no knowledge of the voltage carried nor whether or not the wires were insulated or uninsulated. From this plaintiff argues that Stilfield v. Iowa-Illinois Gas and Elec. Co., 25 Ill App2d 478, 167 NE2d 295, is conclusive that this is a question of fact for a jury and not a question of law for the court. It is true that the court in that opinion mentioned these two facts. It suggests that the plaintiff in that case apparently only had a nebulous notion that electrical wires were generally dangerous and that direct contact with them is to be avoided. In addition, in that case, the plaintiff did not know a power line carrying 13,200 volts would under some circumstances are when a metal object was placed within three or four feet of the wire, which occurred in that case. However, it appears to us, as a careful reading of that case indicates, that a controlling factor in the court’s opinion was also that the control of the boom was not alone in the plaintiff, but in the crane operator and the evidence in the record would justify a jury in concluding that the plaintiff made every reasonable effort to avoid having the chain or cable he was holding come in close proximity to the power line. Thus, the plaintiff in that case, notwithstanding his lack of knowledge or lack of specified knowledge, was exercising every precaution within his control to avoid the result. Such is not true here. In addition, on p 61 of 69 ALH2d, is listed a group of cases holding that where the victim kne'w the specific danger existing in the condition faced by him with regard to the possibility of contact with a charged wire to an object held by him, or should have known of such condition, he has been held contributorily negligent as a matter of law. These cases are more closely akin to the facts in the case at bar.

Plaintiff in his deposition testified that he had been on the top of this 20-foot elevator many times from 1962 to the time of the accident in 1964. On this occasion, he went to the top of the elevator to look at the corn which they were undertaking to remove from the elevator. It had clogged in the auger. He called for an employee to hand him a pole. The employee gave him a seven- or eight-foot aluminum pole and he climbed on up the ladder with the pole in his hand. That same employee told plaintiff that the pole came in contact with electrical wires of the defendant. Plaintiff had previously advised an employee who was going to the top of the elevator that there were wires up there and to look out for them. He said he was primarily concerned with a neutral wire which is about a foot above the top of the elevator and warned the employee so that he would not stumble over that wire. He testified that there was nothing between him and the hot wires except air, that he didn’t pay any particular attention to these wires, and that he didn’t know how high they were. He further testified that he knew that the pole given to him was made of aluminum and that he just didn’t realize that the hot wire was that close; that on a previous occasion he had been driving a vehicle which had a conveyor about twenty feet high in an area at Livingston and Second Street, and had driven underneath the wires. One Paul Lay, an employee of the defendant, told the plaintiff “just don’t drive with your conveyor too high” and “just remember there is wires up above.” The plaintiff told Lay that he knew that the wires were up there and further testified that he knew that if that conveyor had touched those wires, that he would get electrocuted, and again testified that those wires were the same type of wires that were in the area of the grain bin. In Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309, we discussed at length the question of when contributory negligence becomes a matter of law and there stated that under the facts involved in that case, “the conclusion is inescapable that he (plaintiff) inadvertently, unthinkingly, heedlessly, or carelessly brought his clothing into contact with the equipment.” We would paraphrase that language as it applies to the aluminum pole in the case at bar. It is, of course, unfortunate that there are circumstances and instances where a plaintiff through inadvertence, carelessness or the failure to exercise due care and caution for his own safety brings on his own injury. In Brooks, we said at p 261 of the Illinois Appellate Reports and p 102 of the Northeastern Reports that “We are unable to find any facts or inferences in this record which would allow the plaintiff to submit the decisive issue of the defendant’s negligence to a jury.” A like observation applies here to plaintiff’s contributory negligence. The judgment of the trial court is affirmed.

Affirmed.

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


author: MILLS, J.

text:
    City of Bloomington, a Municipal Corporation, Petitioner-Appellee, v. Elmo Quinn, Leona M. Quinn, Walter L. Benson, Rose S. Benson, Industrial Casualty Insurance Company, Diamond Johnson and Mary Johnson, Interstate Bond Company, Harold S. Shoel, et al., Defendants, Walter L. Benson and Rose S. Benson, Defendants-Appellants.
    Gen. No. 11,078.
    Fourth District.
    October 16, 1969.
    Rehearing denied November 18, 1969.

      (Hostigan & Wollrab, of Bloomington (James Wollrab and William A. Allison, of counsel), for appellants.
    DePew, Grimes & DePew, of Bloomington (James R. DePew and Joseph W. DePew, of counsel), for appellee.
   MILLS, J.

This is a condemnation case and the sole question on review is whether or not discovery procedures apply in condemnation eases.

The facts are simple: during the course of an urban renewal project, appellee city sought to obtain the real estate of appellants, and offered them $6,380; this offer was refused and condemnation proceedings ensued; during the course of pretrial procedures, appellants sought discovery in the form of names and addresses of appraisers, production of appraisals for inspection and the right to depose the city’s appraisers; these efforts were denied by the trial judge, and the case went to trial; the jury awarded a verdict of $4,500, and appellants bring this appeal, urging that the trial court’s refusal to permit pretrial discovery resulted in reversible error.

Illinois Supreme Court Rule 201, effective January 1, 1967, constitutes a restatement of pretrial discovery as it has been broadened over the past few years by case law. A quick reading of the committee comments under Rule 201 bears this out. As was pointed out in People ex rel. Terry v. Fisher, 12 Ill2d 231, 145 NE2d 588, 592:

“. . . we are mindful of the obligation of this court to give these discovery rules an interpretation consistent with their avowed purpose. They were adopted as procedural tools to effectuate the prompt and just disposition of litigation, by educating the parties in advance of trial as to the real value of their claims and defenses. As noted by legal scholars, those rules will suffice for present needs if lawyers and judges will use them with an understanding of that purpose. . . . Thus, to construe the language . . . ‘related to the merits of the matter, in litigation’ to refer only to isolated legal concepts such as negligence, proximate cause, and damages, divorced from the realities of litigation, would not be using this new tool ‘with an understanding of its purpose.’
“In the light of this approach, we must reject at once as amthority those cases limiting pretrial discovery to matters admissible in evidence ... as being contrary to both the terms and intent of the Rule.” (Emphasis added.)

Or phrased another way, “ ‘Discovery before trial’ presupposes a range of relevance and materiality which includes not only what is admissible at the trial, but also that which leads to what is admissible at the trial. We need not now fix ultimate boundaries.” Krupp v. Chicago Transit Authority, 8 Ill2d 37, 132 NE2d 532, 535.

There can be little doubt that complete disclosure, via the authorized discovery methods prescribed by Rule 201, is now the “order of the day” and standard procedure in Illinois. The rule reads: “Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” This broader availability of discovery procedures came through the flood gates in the wake of the Monier case, where the avowed purpose and goal sought was declared to be “. . . the ascertainment of the truth and ultimate disposition of the lawsuit in accordance therewith. . . .” It was further observed that “. . . the increasing complexity and volume of present-day litigation involves frequent recourse to discovery procedures, and to unduly limit their scope would serve only to inhibit pretrial settlements, increase the burden of already crowded court calendars, and thwart the efficient and expeditious administration of justice.” Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410, 417, 415. See also, Monier v. Chamberlain, 31 Ill2d 400, 202 NE2d 15; 66 Ill App2d 472, 213 NE2d 425.

We perceive no valid reason why the principle of discovery should not apply in condemnation cases. Such conclusion would prostitute the very fundamental objective of Rule 201 and the broad discovery policy intended in all civil cases by Monier. Indeed, since Monier was decided, reviewing courts in Illinois have held in condemnation cases that the names of appraisers are not privileged (City of Chicago v. Albert J. Schorsch Realty Co., 95 Ill App2d 264, 238 NE2d 426, 433), and that appraisers’ reports are not an attorney’s work product (Department of Public Works and Bldgs. v. Oberlaender, 92 Ill App2d 174, 235 NE2d 3, 9). The court in the latter case concluded: “On the contrary such reports appear to us to be in the same category with the reports or statements of any other person not a party to the action possessing facts or information relevant to the issues in controversy. Accordingly we believe the trial court committed no error in ordering the production of the documents.”

The rule seems to us to be quite unequivocal and unambiguous: there is complete disclosure of any relevant matter. The only exceptions to this all encompassing and totally inclusive discovery rule are those provided for in (b) (2) of the rule, dealing with privileged matters and the work product of a party in preparation for trial. See Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410, 416. Yet appellee city specifically argues that it does not base its objection to discovery in this case upon the exception of privilege or work product, but strenuously grounds its position on the theory that the offer of the city, and the circumstances surrounding the basis of the appraisals and offer, are not admissible in evidence. The city argues that such matters are not discoverable under authority of City of Chicago v. Harrison-Halsted Bldg. Corp., 11 Ill2d 431, 143 NE2d 40, and City of Waukegan v. Stanczak, 6 Ill2d 594, 129 NE2d 751. We cannot agree with that conclusion. Insofar as the issue of this appeal is concerned, those cases are not controlling. The City of Waukegan case merely held that “evidence of the condemnor’s offer to buy was properly excluded,” a question that is not in any way posed here. (6 Ill2d 594, 129 NE2d 751, 758.) The Harrison-Halsted case, on the basis of City of Waukegan, ruled that since such offers “are in the nature of an attempt to compromise and cannot be proved,” neither can they be discovered. (11 Ill2d 431, 143 NE2d 40, 43.) That case was decided prior to the broad concept of discovery enunciated by Monier, and before the holding in People ex rel. Terry v. Fisher, supra, that discovery is not limited to such matters as are admissible in evidence.

We, therefore, conclude that the theory of full disclosure by discovery, manifested by Monier and Rule 201, require in condemnation cases the disclosure of the names of appraisers, their addresses, and copies of the documents constituting their appraisals.

The discovery motions here made by the landowners were in no way sinister or devious; nor were they a subterfuge to obtain indirectly that which appellants could not obtain directly. They had the offer, it was made to them. What they did not have, was the knowledge or the specific foundation data that the city’s appraisers used in employing their expertise. Undeniably, the discovery sought had reference to “matter relevant to the subject matter involved in the pending action,” and involved “the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Assuredly, the appraisers would have “knowledge of relevant facts” at issue in this condemnation proceeding. The information sought to be discovered falls foursquare within both the intent and specific description of Rule 201.

However, we cannot rule that the trial court’s failure to allow the discovery sought was of such a nature as to amount to reversible error. The record of this case before us is a “short record” — there is no transcript of the proceedings before the jury. But the “Judge’s Docket Sheet” reflects the following chronological inventory of events: both parties answered ready for trial; voir dire examination was conducted, the jury empaneled and sworn; counsel made their opening statements; the city moved for the jury to view the premises and this was allowed; both sides presented evidence, rested and no rebuttal evidence was offered by either side; after jury instruction conference, final arguments were presented; the jury was instructed and retired to deliberate; iy2 hours later the jury returned a verdict for appellants in the amount of $4,500; judgment was entered on the verdict. Although no transcript of the trial is furnished, other pertinent figures must be gleaned from the motions, a stipulation between counsel and their arguments in the briefs. The city’s two appraisers who testified stated that the property sought was valued at $3,500 and $3,950, respectively; the offer to purchase originally made by the city was $6,830. Yet, nowhere in the “short record,” briefs, reply brief, abstract and supplemental abstracts of the record do we find any reference to what appellant’s witnesses testified was the value of the subject land. We cannot presume that appellants offered no proof at all as to value, or that their value evidence was less than the $4,500 verdict, for in either instant a remittitur damna would have been entered so as to bring the judgment within the range of the evidence. Department of Public Works v. Huff, 15 Ill2d 517, 155 NE2d 563, 565. Furthermore, common sense would dictate that appellants’ value evidence was unquestionably more than the city’s offer of $6,380, or they would not have gone to trial.

On the other hand, the “short record” before us does reflect that a procedurally proper trial by jury was afforded, the jury viewed the premises, and returned a verdict in excess of the highest value of the city’s evidence. In fact, the jury’s verdict was %th higher than the highest value the city presented. We conclude that the trial here “proceeded in accordance with the interests of justice,” that the jury was not “influenced by passion or prejudice” and that there was no “clear and palpable mistake.” Illinois Bldg. Authority v. Dembinsky, 90 Ill App2d 451, 233 NE2d 38, 41; City of Chicago v. Harrison-Halsted Bldg. Corp., 11 Ill2d 431, 143 NE2d 40, 44; Department of Public Works v. Lambert, 411 Ill 183, 103 NE2d 356, 360.

We hold that discovery does apply in condemnation cases as well as any other civil proceeding, but that the refusal to permit it here was harmless error. The trial court is affirmed.

Affirmed.

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


author: MR. JUSTICE SEIDENFELD

text:
    John T. Oberg, Plaintiff, Counterdefendant and Appellant, v. John Hancock Mutual Life Insurance Company, a Corporation, Defendant, Counterplaintiff and Appellee.
    Gen. No. 69-13.
    Second District.
    October 20, 1969.
    Reno, Zahm, Folgate & Skolrood, of Rockford, for appellant.
    Hyer, Gill, Brown and Remencius, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Appeal is taken from a summary judgment entered in favor of the Insurance Company, denying a claim for $1,569 in major medical expenses.

The controlling issue is whether the Company can forfeit the contract for failure to include in the application for insurance certain prior medical history which was within the knowledge of the insurer’s agent.

The complaint was filed within two years from the date of issuance so that the general incontestability clause did not become an issue. However, the Company alleged, as a separate defense, that the application which was attached to the policy contained the following clause:

“. . . and provided that if any of the statements and answers set forth in Part A and Parts B, if any, of this application are not complete and true as though given at the time of such delivery and payment, the Company shall have the right to void the policy, subject to the Incontestability provision of the policy. III. Except as otherwise may be specifically provided in the policy, notice to or knowledge of any agent or medical examiner, whenever given, is not notice to or knowledge of the Company, and no agent or medical examiner is authorized to make or discharge contracts or waive or change any of the conditions or provisions of any application, policy or receipt, or to accept risks or pass upon insurability,”

and that in the application plaintiff was asked certain questions concerning his past medical history and made certain false statements and misrepresentations and failed to disclose information which materially affected the acceptance of the risk. The Company also counterclaimed for rescission of the policy, offering to return the premiums paid.

Plaintiff admitted the allegations of the separate defense to the extent that he was asked the questions related, but further alleged that he, at no time, filled in the personal health application and that it was filled in by Herbert C. Liedberg, agent of the John Hancock Company, who had knowledge of the omitted medical history and who stated to plaintiff that the omissions were immaterial.

The order for summary judgment on the motion of the Insurance Company followed.

Plaintiff relies principally on the decision of this court in Asselborn v. State Farm Life Ins. Co., 1 Ill App 2d 104, 116 NE2d 902 (1954) (which, in turn, cites as its basis, Security Trust Co. v. Tarpey, 182 Ill 52, 54 NE 1041 (1899)) as authority for the proposition that an insurance company cannot insist on a forfeiture of a policy for a cause which was within the knowledge of its agent at the time the policy was issued. Defendant answers this argument by reference to the exculpatory clause in the present policy which was not present in the Asselborn and Tarpey cases. Defendant cites authorities to the effect that contract provisions may negative a claim that the insurance company has waived a lawful provision of its contract and may avoid the charge that it is estopped to assert limitation of the agent’s authority.

In Asselborn v. State Farm Life Ins. Co., supra, a judgment entered on a jury verdict for the beneficiary of a deceased insured was affirmed. The evidence was overwhelming that the insured did not know that he had a heart condition and, therefore, could not have intended to deceive the company within the purview of section 154 of the Illinois Insurance Code. It was significant also in the court’s opinion, that the company’s medical examiners had familiarized themselves with the insured’s E.KG.’s and had pronounced him normal and “a first class risk”; and that the discrepancies and incomplete answers in the examiner’s reports were evident to the company, which made no further inquiry. The court concluded, page 116:

“In Security Trust Co. v. Tarpey, 182 111 52, at page 59, it is said: ‘It has been the rule of this court that an insurance company cannot insist upon the forfeiture of a policy for a cause which was within the knowledge of its agent at the time the policy was issued.’ In the instant case, our review of the record convinces us that the agents of appellant knew as much or more about the physical condition of Joseph C. Asselborn at the time he made his application for this policy as Mr. Asselborn himself. The judgment of the trial court is in accordance with the facts as disclosed by this record and the applicable law, and that judgment will be affirmed.”

In Security Trust Co. v. Tarpey, supra, the company sought to avoid a policy for alleged false representations that the deceased had made no application to other companies and that he stated his health was good when, in fact, he had consumption. In affirming a judgment for the beneficiary, the court held that no question of fraud or warranty was present since the facts indicated that the company solicited risks rejected by other companies and had before it a copy of the rejection by another company; and, in addition, the medical report indicated a probability of tuberculosis, but that the facts showed that if the doctor concluded that the insured had the disease he did not so inform him.

Plaintiff argues that the rule of the above cases should apply as well to the application containing the clause exculpating the company from notice of facts within its agent’s knowledge in the inception of the contract.

Defendant cites a number of Illinois cases for the general rule that parties may incorporate lawful provisions in an insurance contract and the courts will then enforce the contract as made (e. g., Moscov v. The Mutual Life Ins. Co. of New York, 387 Ill 378, 56 NE2d 399 (1944); Western & Southern Life Ins. Co. v. Tomasun, 358 Ill 496, 193 NE 451 (1934); and Pioneer Life Ins. Co. v. Alliance Life Ins. Co., 374 Ill 576, 30 NE2d 66 (1940)). Only the Western & Southern Life Insurance Co. case deals with misrepresentations, and those by the insured directly. The court, in fact, distinguishes the Security Trust Co. v. Tarpey, supra, and a number of similar cases on the ground that these involved the rule that an insurance company cannot insist upon a forfeiture for a cause of which it had knowledge — or which its agent had knowledge — when the policy issued.

These cases do not reach the precise question whether, granted that a company may insert any lawful provision in its contract, it may yet be estopped to assert such provision or be said to have waived it. Nor do they deal with the effect of a clause purporting to shield the company from knowledge of the facts known to the agent at the inception of the contract but not transmitted to the principal.

On the latter point, in Guter v. Security Benefit Ass’n, 335 Ill 174, 166 NE 521 (1929) the insured, under a mutual benefit life insurance policy, warranted that he was in sound physical condition when there was evidence he knew he had tuberculosis, and.that his parents had died of that disease. The beneficiary offered proof in rebuttal that the insured had told the medical examiner for the company all of the relevant facts and that the latter wrote down the answers. The lower court refused the offer, relying on the terms of the policy which stated, in addition to the warranty of sound physical condition, a warranty that all the answers given in the application were true and verified. In addition, defendant had introduced bylaws of the association which stated that no officer of a local lodge had authority to waive any contract provision; and that notice to a subordinate lodge should not be considered notice to the insurer. The policy incorporated such bylaws. In reversing the lower court the Illinois Supreme Court stated, on pages 179-180:

“A subordinate lodge or council of a mutual benefit society is the agent of the supreme lodge or council, notwithstanding the declarations of the by-laws of the society to the contrary, and a restriction upon the power of an agent of a benefit society to waive any of the conditions of the contract or upon the manner of their waiver is a condition which may itself be waived by a mutual benefit association. (Dromgold v. Royal Neighbors, 261 Ill 60; Zeman v. North American Union, 263 id. 304.) The rule as to what constitutes a warranty in an application for a mutual benefit certificate differs where the application is filled out and the questions answered by the insured and where the questions are asked and the application is filled out by an agent of the society, and in the former case, where the answers are false and no information as to their falsity is given to the agent, the benefit certificate may be declared void by the society. This rule, however, does not apply to the latter case. Notice to the agent, at the time of the application for the insurance, of facts material to the risk is notice to the insurer, and will prevent it from insisting upon a forfeiture for causes within such agent’s knowledge. The insurer is not permitted to insist that statements in an application are warranties, the falsity of which forfeits the policy, where such statements are those of the agent, put in by him in lieu of the facts disclosed to him by the insured. (Provident Life Ins. Co. v. Cannon, 201 Ill 260; Phenix Ins. Co. v. Hart, 149 id. 513; Home Ins. Co. v. Mendenhall, 164 id. 458; Phenix Ins. Co. v. Stocks, 149 id. 319; Royal Neighbors v. Boman, 177 id. 27; Teutonia Life Ins. Co. v. Beck, 74 id. 165.)”

See also Niemann v. Security Benefit Ass’n, 350 Ill 308, 315, 183 NE 223 (1932).

In Royal Neighbors of America v. Boman, 177 Ill 27, 52 NE 264 (1898), the court stated on page 32:

“Where one makes true answers to the questions in an application for insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company, even though the application contained a stipulation that the agent took the application as the agent of the insured. Bernard v. United Life Ins. Co., 39 NY Supp 356; Clubb v. Am. Acc. Co. of Louisville, 97 Ga 502; Insurance Co. v. Wilkinson, 13 Wall 222; Andes Ins. Co. v. Fish, 71 Ill 620.”

In Whitmore v. Mutual Life Ins. Co. of New York, 122 Vt 328, 173 A2d 584, 589 (1961), the Vermont Supreme Court applied Illinois law, citing Royal Neighbors of America v. Boman, supra, and Niemann v. Security Benefit Ass’n, supra, and held that where the insured answered questions asked of him by the insurance agent truthfully, and false answers were placed on the application by the agent, the insurer was estopped to deny liability because of alleged fraud of the insured even where the application contained a stipulation that the agent takes the application as the agent of the insured.

In Lumbermen’s Mut. Ins. Co. v. Bell, 166 Ill 400, 405, 45 NE 130 (1897), the court announced the rule of law that whether the brokers were the agents of the assured is to be determined from all the evidence bearing on that subject, and not merely from the statement in the policy to the effect that the brokers were the agents of the assured.

In a parallel situation, in which it is set forth in the application that the medical examiner is the agent of the insured, the Illinois cases are aligned with the majority rule in the various jurisdictions holding that the examiner will not be regarded as the agent of the insured even though it is so stipulated in the provisions of such application or policy. 94 ALR2d 1389, 1402-4, Annotated.

We do not here deal with the case in which an insured is acquainted with circumstances plainly indicating that the agent will not advise his principal. See Jacobson v. Equitable Life Assurance Society of U. S., 381 F2d 955, 960-1, (CCA 7th 1967), applying Illinois law.

Defendant has cited a number of cases from other jurisdictions which have held an insured bound by false answers on the application after questions and answers have been read to him, including the question whether he understood that the company is not bound by any knowledge of or statement made by or to any agent unless set forth in the application. (E. g., Benson v. Bankers Life and Casualty Co., 147 Colo 175, 362 P2d 1039, 1041-2 (1961); Haman v. Pyramid Life Ins. Co. (Mo), 347 SW2d 449, 454 (1961); American Standard Life Ins. Co. v. Denwitty (Tex), 256 SW2d 864, 868 (1953); Employers Mut. Fire Ins. Co. v. Cunningham (Ky), 253 SW 2d 393, 394 (1952).) These authorities are either inconsistent with the rulings which have applied Illinois law, or involve different circumstances.

Probably the weight of modern authority sustains the rule that when an applicant gives correct oral answers which are incorrectly recorded by an authorized agent, the insurer cannot rely upon the falsity of such answers to avoid the policy. See 148 ALR 507, Annotated; John Hancock Mutual Life Ins. Co. v. Schwarzer, 354 Mass 327, 237 NE2d 50 (1968); Schneider v. Washington Nat. Ins. Co., 200 Kan 380, 437 P2d 798, 810-12 (1968); Corrigan v. Firemen’s Fund Ins. Co., 180 Neb 13, 141 NW2d 170, 176 (1966) ; Middlebrook v. Bankers Life & Casualty Co., 126 Vt 432, 234 A2d 346, 348 (1967); Saunders v. Allstate Ins. Co., 168 Ohio St 55, 151 NE2d 1, 6 (1958); Pannunzio v. Monumental Life Ins. Co., 168 Ohio St 95, 151 NE2d 545, 552 (1958), for example.

We, therefore, find that the trial court was in error in entering the summary judgment. On the court’s theory of the law applicable to the insurance contract, there were no facts alleged (and admitted for pleading purposes to be true) which could bind the insurer because the information, while allegedly known to the agent, was not transmitted to his principal.

However, on the view that we have taken of the law there were a number of material issues of fact unresolved and undetermined. In its reply to the answer to the separate affirmative defense, the defendant denied that the agent, Liedberg, had actual knowledge of the rectal operation, massive upper gastrointestinal hemorrhage, cataract and otosclerosis, or plaintiff’s confinement in Rockford Memorial Hospital from January 2nd to and including January 14th, 1965. Further, defendant denied that Liedberg represented to plaintiff that the omission of the facts concerning such condition, illness and confinement were immaterial to the risk.

We have often held that the purpose of a summary judgment is not to try an issue of fact, but rather to determine if one exists. In the case at bar, a dispute existed with reference to the foregoing material facts. Summary judgment should not have been entered. Lumbermens Mut. Cas. Co. v. Poths, 104 Ill App2d 80, 92, 243 NE2d 40 (1968).

We reverse and remand with instructions to vacate the order granting the summary judgment and to conduct a trial on the merits.

Reversed and remanded with instructions.

MORAN, P. J. and DAVIS, J., concur.

       “C. That in plaintiff’s application for insurance, plaintiff was asked the following questions, to wit:
      “16. Has any proposed covered family member ever consulted or been treated by any physician or practioner (sic) for, or had known indication of: f. Indigestion or ulceras, colitis or diarrhea, rectal disease or hemorrhoids, hernia, gall bladder or liver disease, or jaundice ? k. Eye or ear or speech impairment ? m. Disease or disorder of stomach or intestines ?

        tt

      “20. Has any proposed covered family member ever: c. Had x-ray, electrocardiogram, blood or other medical studies ?
      “21. Has any proposed covered family member during the last five years, other than as stated in connection with your other answers, consulted, been treated or examined by any physician or practioner (sic); or been under observation or treatment in any hospital, clinic or similar institution ?
      “The plaintiff answered question 16f. in the affirmative, but in the paragraph for disclosure of the condition and giving details concerning the same, the plaintiff listed a rectal operation, but failed to disclose that he had suffered a massive upper gastrointestinal hemorrhage and had been confined in Rockford Memorial Hospital from January 2nd to January 14th, 1965, under the care of physicians and surgeons as a result of such condition.
      “Plaintiff answered questions 16k., 16m., 20c. and 21 all in the negative. Plaintiff had in fact for several years prior to March 3, 1966, the date of the application, suffered from a cataract of the left eye and otosclerosis resulting in deafness in the left ear, and during his confinement in Rockford Memorial Hospital from January 2nd to and including January 14, 1965, numerous x-rays, blood tests and other medical studies were made.”

       Ill Rev Stats 1967, c 73, § 766.
      766. Sec 154. Misrepresentations and False Warranties.) . . . No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.

       There is a suggestion in the case that such exculpatory clause is invalid, but we take note of the provisions of Ill Rev Stats 1967, c 73, § 837 (e), which state such clauses to be invalid in life insurance policies issued subsequent to 1937. There is no similar provision in the Insurance Code with respect to health and accident insurance. However, the Illinois cases cited involving life insurance were decided prior to the enactment of the provision in the Insurance Code of 1937.


author:
MR. JUSTICE DAVIS
      THOMAS J. MOEAN, P. J.,

text:
    Village of Gurnee, Plaintiff-Appellee, v. William Depke, Defendant-Appellant.
    Gen. No. 69-26.
    Second District.
    October 20, 1969.

      Thomas P. Stepanich, of Waukegan, for appellant.
    W. Howard Swanson, and J. Henderson, of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, William Depke, was charged with creating and maintaining a nuisance under an ordinance of the Village of Gurnee, which provided that it was unlawful for any person to cause, permit or maintain the existence of any nuisance on any property under his control, leasehold or ownership; and which further provided that the storing, keeping or maintaining outside of a closed building of any junk, parts, machinery, or equipment or motor vehicle not in operable condition, would be considered a nuisance unless the premises was a properly licensed junkyard.

On May 23, 1968, the defendant appeared pro se at the bench trial. After hearing the evidence, the magistrate found the defendant guilty of creating and maintaining a nuisance; gave him thirty days in which to remove junk parts, machinery or equipment not in an operable condition, from his premises, and continued the cause for judgment on June 27, 1968. On June 19, 1968, an attorney for the defendant filed a post-trial motion. The motion was heard and denied. On October 4, 1968, the court entered a further order giving the defendant “30 days in which to remove the items in question from his premises and to clear up the nuisance — If not removed fine of $500.00 plus costs to be paid November 4, 1968, at 3:30 o’clock P. M.”

On November 26, 1968, the court entered a written order that judgment against the defendant in the amount of $500 be and remain in effect. This order recited: “That the defendant, after trial on May 23, 1968, was found guilty of ‘Illegal parking and storage of motor vehicles.’ ” This recitation was erroneous in view of the docket order of May 23, 1968. Section 64.2 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 64.2), provides that no special findings are necessary in any case at law, tried without a jury, to support the judgment. Thus, the finding in the written order of November 26, 1968, as above set forth, is surplusage, and such misstatement of fact cannot alter the true facts of the case.

Upon appeal, the defendant contends that the complaint is bad for duplicity in that it charges two offenses in one count. A question is thus posed as to whether this proceeding is sufficiently criminal in nature that the charge of duplicity can be raised. See: City of Highland Park v. Curtis, 83 Ill App2d 218, 224, 226 NE2d 870 (1967). Regardless of this question, the charge of duplicity raises a defect as to the form of the complaint which the defendant did not challenge in the trial court by a timely pretrial motion. Had he done so, the defect, if any, might easily have been cured. A motion in arrest of judgment is used to reach defects which are fundamental in nature rather than those of form. See: Ill Rev Stats 1967, c 38, § 116-2. The alleged defect of duplicity is such that it could be, and was, waived by the defendant’s failure to make a timely objection thereto. 41 Am Jur2d, Indictments and Informations, § 301, p 1067; People v. Brausam, 83 Ill App2d 354, 359, 360, 227 NE2d 533 (1967).

The defendant next contends that the Village of Gurnee cannot by ordinance declare the storage of nonoperable motor vehicles to be a nuisance unless the operation of his business is a nuisance in fact. In Laugel v. City of Bushnell, 197 Ill 20, 63 NE 1086 (1902) — an early, leading case —, at pages 26 and 27, the court stated:

“Nuisances may thus be classified: First, those which in their nature are nuisances per se or are so denounced by the common law or by statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings or the manner in which they may be conducted, managed, etc.; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds.
“The power granted by the statute to the governing bodies of municipal corporations to declare what shall be nuisances and to abate the same, etc., authorizes such bodies to conclusively denounce those things falling within the first and third of these classes to be nuisances, but as to those things falling within the second class the power possessed is only to declare such of them to be nuisances as are in fact so.”

In this case, witnesses for the Village testified that: (1), the grass in the area of the defendant’s property had not been cut for a number of years; (2), smoke from burning tires and rubbish was seen coming from the defendant’s premises at least once a week; (3), children going to a nearby school were attracted to the inoperable vehicles; and (4), one of the witnesses testified that she believed she had seen rats in the area, and another described the lot in question as a haven for rats. In the light of this testimony, the judgment of the magistrate finding the defendant guilty of creating and maintaining a nuisance was not against the manifest weight of the evidence. Payne v. Kingsley, 59 Ill App2d 245, 252, 253, 207 NE2d 177 (1965).

We believe that the Village had the power to prohibit the keeping, storing and maintaining, outside of a closed building, of junk, parts, machinery, or equipment or motor vehicles not in an operable condition, unless the premises was a properly licensed junkyard and complied with all of the ordinances of the Village governing such facilities. The unsightly nature of most junk, parts and machinery, or inoperable equipment and cars; the noxious odor from the burning of junk materials, which apparently took place; the attractiveness of such unkempt and weedy areas to rats and vermin are well known to all. It is for reasons such as these, that the operation of junkyards commonly is controlled by licensing provisions.

The storage of junk, parts, machinery and inoperable cars and equipment might, or might not, be terribly objectionable to persons with impartial minds. This operation appears to us to fall within the third category of nuisances as set forth in Laugel, supra. The Village, thus, had the right to declare it a nuisance, particularly in view of the circumstances that the business operation was neither properly licensed nor in compliance with the Village ordinances governing junkyards. The determination of the legislative body of the Village is conclusive upon us. City of Chicago v. Shaynin, 258 Ill 69, 73, 101 NE 224 (1913); North Chicago City R Co. v. Town of Lake View, 105 Ill 207, 212 (1883).

The defendant further contends that the plaintiff cannot by ordinance declare the storage of inoperable motor vehicles to be a nuisance unless its ordinance conforms strictly to the requirements of state enabling legislation. He cites Ill Rev Stats 1967, c 24, § 11-40-3, which provides:

“The corporate authorities of each municipality may by ordinance declare all inoperable motor vehicles, whether on public or private property, to be a nuisance and authorize fines to be levied for the failure of any person to obey a notice received from the municipality which states that such person is to dispose of any inoperable motor vehicles under his control. However, nothing in this Section shall apply to any motor vehicle that is kept within a building when not in use, to historic vehicles over 25 years of age, or to a motor vehicle on the premises of a place of business engaged in the wrecking or junking of motor vehicles.
“As used in this Section, ‘inoperable motor vehicle’ means any motor vehicle from which, for a period of at least 6 months, the engine, wheels or other parts have been removed, or on which the engine, wheels or other parts have been altered, damaged or otherwise so treated that the vehicle is incapable of being driven under its own motor power. ‘Inoperable motor vehicle’ shall not include a motor vehicle which has been rendered temporarily incapable of being driven under its own motor power in order to perform ordinary service or repair operations.”

We cannot agree with the defendant’s contention in this regard. It begs the true question; namely, can the Village by ordinance properly declare that it “shall be unlawful for any person to cause, permit or maintain the existence of any nuisance on any property under his control, lease or ownership” by the “storing, keeping, or maintaining outside of a closed building, any junk, parts, machinery or equipment not in an operable condition, or motor vehicle not in an operable condition, provided, however, that this Ordinance shall not apply to a properly licensed junkyard which is in full compliance with all of the Ordinances of the Village of Gurnee governing the same?”

Also, nothing in the statute indicates that by this enactment, the legislature intended to preempt this area and bar proper and authorized legislation by municipal bodies relating to nuisances in general. It appears that the ordinance of the Village of Gurnee was enacted under Ill Rev Stats 1967, c 24, § 11-60-2, which provides: “The corporate authorities of each municipality may define, prevent and abate nuisances.”

We believe that the Village did have the power to pass the ordinance in question, and that it was applicable to the defendant in its operative effect.

Other matters are raised by the defendant, but we do not consider them material nor grounds for reversal. Thus, the judgment of the trial court is affirmed.

Judgment affirmed.

SEIDENFELD, J., concurs.

THOMAS J. MOEAN, P. J.,

specially concurring:

The evidence in this cause disclosed that the defendant kept old farm equipment, dismantled machinery and other junk upon his premises. There was further testimony to the effect that, in addition to the above, the defendant also stored inoperative motor vehicles upon his premises. It is to this latter subject (inoperative motor vehicles) that I direct my opinion.

The majority view has decided that (1) the Village has the power to enact an ordinance prohibiting the storing, keeping or maintaining, outside of a closed building, any motor vehicle not in operable condition, (2) that the Legislature did not indicate or intend to preempt the area of “inoperative motor vehicles” when it enacted section 11-40-3 of the Municipal Code (quoted in the opinion) and (3) that the ordinance in question was enacted under section 11-60-2 (quoted in the opinion) rather than under section 11-40-3.

Section 11-60-2 became law on May 29, 1961, whereas section 11-40-3 became law on June 19, 1967. The latter section declared certain motor vehicles to be a nuisance and not only provided for a notice but defined what would constitute an inoperative motor vehicle. The Village, on September 18, 1967, enacted an ordinance which enumerated six conditions or acts that would constitute a nuisance. Included as one of the six was the following, under which the defendant was charged:

“The storing, keeping, or maintaining outside of a closed building any junk, parts, machinery or equipment not in operable condition, or motor vehicle not in operable condition, provided, however, that this ordinance shall not apply to a properly licensed junkyard. . . .” (Emphasis added.)

As can be seen, the ordinance neither requires notice, nor defines what constitutes an inoperable motor vehicle as required in the statutory provision.

Prior to the enactment of section 11-40-3, an inoperative motor vehicle was not a nuisance per se. However, by enacting this section, the Legislature granted municipalities the right to declare all inoperative motor vehicles, whether on public or private property, to be a nuisance and to levy a fine in the event (1) that after notice a person fails to dispose of any such vehicle under his control and (2) the vehicle, for a period of six months, was incapable of being driven under its own power.

The majority opinion asserts that there is nothing in section 11-40-3 which indicates that the Legislature intended to preempt this area (inoperative motor vehicles) and bar proper and authorized legislation by municipal bodies relating to nuisances in general as expressed under section 11-60-2. I would agree if the section of the ordinance in question had not included inoperative motor vehicles or, having included the same, would have provided for a notice and defined what constituted an inoperative motor vehicle. However, the fact that the Legislature did act in this area bears out the conclusion that it was intended to preempt this specific field, otherwise there would be no reason for such legislation and it would become a useless act. We must keep in mind that the section is directed, expressly, to municipalities and not to other agencies of the State. It should be further noted that this section is not found under section 11-60-2 covering nuisances in general.

The majority, by assumption, concludes that the ordinance in question was enacted under section 11-60-2. There is nothing in the ordinance or the record before us upon which to base this assumption; rather, because of the time sequence between the enactment of section 11-40-3 and the later enactment of the ordinance, the assumption should be that the Village had the recent enactment of the Legislature in mind when it adopted its ordinance.

There can be no question that the Village had the power to adopt an ordinance pertaining to inoperative motor vehicles. That is the purpose of section 11-40-3; however, the section requires certain minimum safeguards, i. e., notice, and a definition of inoperative motor vehicles. These minimum requirements were not included within the ordinance. As it stands, any resident of the Village may, under the present ordinance, (since it is styled in the disjunctive) be prosecuted for having an inoperative motor vehicle upon his premises, without being given notice and regardless of how long such vehicle may be present.

I therefore disagree with the majority view to the extent expressed herein, but agree that the judgment must be affirmed based upon the evidence introduced at the hearing, as it relates to old farm equipment, dismantled machinery and other junk.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Malcolm Ehrler, Defendant-Appellant.
    Gen. No. 69-32.
    Second District.
    October 20, 1969.
    Rehearing denied November 26, 1969.

      Harold D. Nagel, of Stockton, for appellant.
    William H. Snively, of Rockford, and Eric S. DeMar, State’s Attorney, of Galena, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Malcolm Ehrler, defendant, was convicted of murder after a jury trial and sentenced to serve 25 to 50 years in the penitentiary.

On appeal he claims a right to a new trial because his motion for substitution of judge was refused, and because of alleged trial errors. He also argues that it was reversible error to refuse his motion for a directed verdict by reason of insanity.

The facts, bearing on the initial claim, impel us to find that prejudicial error was committed in the refusal of the motion for substitution of judge.

Defendant first appeared on a complaint before Judge Gundry, the resident associate judge for Jo Daviess County, on July 19th, 1968. He was advised of the nature of the charge and the cause was continued to July 22nd to allow the opportunity to secure an attorney. On July 22nd defendant again appeared before Judge Gundry and claimed indigency, and the cause was continued for investigation to the date of July 23rd. The defendant appeared before Judge Gundry on July 23rd and it was determined that he was indigent and the court appointed counsel to represent him.

An indictment charging defendant with murder in one count and voluntary manslaughter in a second count was returned on July 30th, 1968.

On August 8th, defendant was arraigned before Judge Gundry, and on his counsel’s motion the matter was continued without plea until August 15th for the purpose of studying the indictment and the statements furnished to the defendant.

Defendant appeared again before Judge Gundry on August 15th and filed a written motion to dismiss the indictment. Without ruling on the motion and on Judge Gundry’s suggestion that a plea be entered, the defendant pleaded not guilty. Judge Gundry thereupon set the case for trial for October 8th, 1968.

On August 29th, pursuant to defendant’s notice, he appeared before Judge Gundry and presented a motion for a psychiatric examination and for inspection and discovery of certain evidence. Over the State’s objections, and upon defendant’s waiving extradition, Judge Gundry ordered the examination of defendant in Iowa in the office of a Dr. Piekenbrock. The State then orally moved for a competency hearing, whereupon defendant’s counsel advised the court that no question was being raised as to defendant’s competence to stand trial, but that the examination requested by defendant was to prepare a defense. The court advised the State’s Attorney to file a written motion and stated “we will have a hearing on it and pass on it in due time.” The court also ruled on the motion for inspection and discovery at the August 29th hearing.

Thereafter, the State noticed in the defendant to appear before “The Honorable Helen M. Rutkowski, Circuit Judge of said Court, or any other Judge sitting in her stead,” on September 18th, 1968. Judge Rutkowski ordered the competency hearing (pursuant to Ill Rev Stats 1967, c 38, § 104-2) for October 7th.

On September 25th, defendant appeared before Judge Rutkowski pursuant to defendant’s notice and moved for a substitution of judge other than Judge Rutkowski. The motion was denied for the stated reason that it had not been made within ten days “after the case was assigned to me.” The court indicated that it would not hear contrary arguments on the allegation of prejudice because “it has already ruled on a motion which goes to the merits of the case, specifically, a motion for a competency hearing.” No order of assignment or rule of practice governing assignment in the circuit is found in the record.

It is the position of the defendant, with which we agree, that the motion for substitution of judge was improperly denied under the provisions of Ill Rev Stats 1967, c 38, § 114-5. On the record, defendant could not be charged with knowledge of the assignment of the case to Judge Rutkowski for trial until September 18th, 1968, and his request seven days later was within the ten-day period.

Nor do we consider that when, on September 18th, upon her first appearance in the case, Judge Rutkowski set the competency hearing over defendant’s argument that none was necessary, her order went to the “merits of the case,” and precluded a claim of prejudice thereafter.

Assuming compliance with statute, the right of the defendant to a substitution of judge is absolute. The provisions of section 114-5 of the Criminal Code (supra), are to be read and construed in pari materia with the provisions of chapter 146, sections 18-35, providing for the right to a change of venue for prejudice of the judge. See Committee Comments. See also The People v. Rosenbaum, 299 Ill 93, 94, 132 NE 433 (1921); The People v. Davis, 10 Ill2d 430, 434, 140 NE2d 675 (1957); and The People v. Myers, 35 Ill2d 311, 326, 220 NE2d 297 (1966). Venue provisions receive a liberal rather than a strict construction and should be construed to promote rather than defeat the right to a change in venue, particularly where prejudice on the part of a judge is charged; but defendant must comply with statutory requirements and the petition must be offered at the earliest practical moment. One criterion for determining the timeliness of such a motion is whether it is filed before the court has considered a substantive issue in the cause. The People v. Chambers, 9 Ill2d 83, 87, 136 NE2d 812 (1956). The purpose of the rule is to preclude counsel from first ascertaining the attitude of the trial judge on a hearing related to some of the issues of the cause, and then, if the court’s judgment is not in harmony with counsel’s theory, to assert the prejudice of the court as a ground for allowing the change. The People v. Chambers, supra, page 89.

While the State argues that the question of a psychiatric examination to determine the defendant’s competency was an important element of the case and went to the merits involved, no authorities are offered in support of this position, and we believe that the nature of the competency proceedings indicates a different conclusion. Proceedings to determine competency of a defendant to stand trial, under the provisions of Ill Rev Stats 1967, c 38, § 104-2, are completely collateral to the basic criminal charge, are civil in nature, and in no way involve the guilt or innocence of the defendant. See The People v. Geary, 298 Ill 236, 244, 131 NE 652 (1921). Therefore, we do not consider a ruling on a motion to set such a hearing, even over objection, one which goes to the merits of the case or relates to any issue of the crimes charged in the indictment.

The cases cited by the State are clearly distinguishable. In The People v. Chambers (supra), the petition was not presented until after the court had heard and ruled upon a motion to suppress evidence which involved presentation of the respective theories of the prosecution and the defense and the motion was not made until the date of trial. In The People v. McDonald, 26 Ill2d 325, 330, 186 NE2d 303 (1962), and in The People v. Deweese, 27 Ill2d 332, 335, 189 NE2d 247 (1963), rulings on motion for suppression of evidence were held to have gone to the merits of the case and prevented a subsequent petition for change of venue. In The People v. Wilfong, 17 Ill 2d 373, 375, 162 NE2d 256 (1959), the same judge had presided during all of the proceedings in defendant’s case, and the motion for change of venue was not made until after the judge had overruled defendant’s challenge to the constitutionality of the statute under which he was being prosecuted, and this at the time the case was called for trial and the jury called to the jury box. Other authorities cited by the State involve similar situations which are clearly in connection with the issues in the case. Considerable reliance is placed on The People v. Speck, 41 Ill2d 177, 242 NE2d 208 (1968). While the court there held (page 187) that the motion came too late even though it was technically filed within ten days after the case had been placed on Judge Paschen’s trial call, the circumstances were completely different than those found here. Judge Paschen, sitting in Cook County, had already presided over a pretrial sanity hearing, had granted a motion for change of place of trial, and had denied a motion to dismiss the indictments. The same judge was assigned to hear the case in Peoria County where it had been transferred for trial. Here, all the prior proceedings were had before Judge Gundry and the single act relied upon to defeat the change of venue was the setting of a date for a competency hearing.

Under the circumstances present here, it was reversible error for the court to refuse defendant’s motion for substitution of judge, and the case must be remanded for a new trial.

We will consider briefly defendant’s remaining claims of error in order to be of assistance to the court below on retrial.

Defendant’s general objection to allowing Dr. Graybill to testify at the trial was properly overruled. The examining psychiatrist who testified in a competency hearing, under the provisions of Ill Rev Stats 1967, c 38, par 104-2 (d), may thereafter testify at the criminal trial to the extent that the prohibition against testimonial compulsion is not violated. The psychiatrist may therefore, within such limitation, properly testify to statements made by the accused while being examined, which are offered to show defendant’s mental condition and not for their truth. The People v. Williams, 38 Ill2d 115, 121, 230 NE2d 224 (1967); People v. Lowe, 109 Ill App2d 236, 239, 248 NE2d 530 (1969). The protection afforded a defendant is against being required to make incriminating statements and there is no violation of constitutional rights against self-incrimination in requiring defendant to cooperate with a psychiatrist since he may not be required under the terms of the statute to thereby incriminate himself. The People v. English, 31 Ill2d 301, 307, 201 NE2d 455 (1964). Defendant seeks to distinguish the authorities cited on the basis that they apply only when defendant requests the competency hearing, but we perceive no basis for the distinction since the statute makes it mandatory for the court to conduct a hearing whenever it has reason to believe that the defendant is incompetent whether the information comes from his own observation or on motion of either the state’s attorney or the defense counsel. See The People v. Geary, supra, page 242.

A question has also been raised, whether it was proper for the judge to qualify the jury for the death penalty when the state’s attorney indicated that he was not asking for it. While the discussion in chambers as to the questions to be asked prospective jurors was not reported, it is conceded that the state’s attorney was not demanding the death penalty. Over objection by defendant’s counsel in chambers, the court proceeded to qualify the jurors by asking each juror in substantially the same language, “Do you have any conscientious scruples about the death penalty?” Only if the juror indicated a problem, did the court then ask whether the death penalty would affect the juror’s judgment as to the guilt or innocence of the accused. The defendant has argued that the state’s attorney and not the court should have made the decision to qualify the jury for the death penalty and that, in any event, the question improperly omitted the qualifying phrase, “in proper cases.”

The trial judge has the primary function of examining jurors at to their qualifications under the provisions of Ill Rev Stats 1967, c 38, § 115-4. It is proper to qualify a jury for the death penalty in a capital. case, and absent an indication by the trial court that such verdict is suggested or preferred, we would not consider the court’s action as error. See The People v. Bernette, 30 Ill2d 359, 368-9, 197 NE2d 436 (1964). We would, however, disagree with the view of the trial court that it had the duty in every case charging a capital offense to so qualify the jury. We would also note that, where the jury does not, in fact, recommend the death penalty, the court will not reverse for error in the qualifying questions absent proof that the jury was necessarily “prosecution prone.” See Bumper v. North Carolina, 391 US 543, 20 L Ed2d 797, 801, 88 S Ct 1788 (1968).

Lay witnesses for the State were permitted to give an opinion, on the ultimate issue of the insanity defense, that the defendant appreciated the criminality of his conduct at the time of the shooting, and could have conformed his conduct to the requirements of law. The witnesses included a police chief who had observed defendant during one and one-half hours after the shooting and who testified to numerous years of experience in observing insane persons; the sheriff, who had known the defendant for thirty years and saw him shortly after the shooting; and a psychologist who had given psychological tests to defendant on May 3rd, 1968, at the East Moline State Hospital. The latter was concededly called and characterized by the state’s attorney as a nonexpert witness, but nevertheless gave her opinion in answer to a hypothetical question.

The defendant argues that the ultimate question which the jury must decide (whether defendant, in a witness’s opinion, “as a result of mental disease lacks substantial capacity to conform his conduct to the requirement of the law”), contains technical language which demands a reevaluation of authorities under the previous law that lay witnesses could give an opinion as to whether a defendant was “insane.” (E. g. The People v. Pruszewski, 414 Ill 409, 413, 111 NE2d 313 (1953); The People v. Krauser, 315 Ill 485, 509-10, 146 NE 593 (1925).) Defendant further points out that he was not permitted to cross-examine the chief of police on what the witness considered a “delusion” on the ground that the cross-examination involved a “technical question” improperly propounded to a nonexpert witness, as illustrative of the problem.

In People v. Pecora, 107 Ill App2d 283, 299-300, 246 NE2d 865 (1969), approval was given without extended discussion or citation of authority to the action of the trial court allowing “testimony on the ultimate question of defendant’s sanity by some policemen . . . .” In People v. Wax, 75 Ill App2d 163, 171-4, 220 NE2d 600 (1966), the court upheld the admission of testimony of lay witnesses “who were permitted to express an opinion upon the insanity of the defendant at times approximating the shooting” (page 171). The opinion also held that cross-examination of a lay witness by reference to “esoteric nomenclature” (i. e. “acute schizophrenia”) to discredit the witness when not in reference to his direct testimony, was properly denied (page 175). The actual form of the question in each of these cases is not noted in the opinion. But in The People v. Ford, 39 Ill2d 318, 322, 235 NE2d 576 (1968), the Illinois Supreme Court impliedly approved the admission of opinions by lay witnesses that the defendant “was able to substantially appreciate the criminality of her conduct and was able to conform her conduct to the requirement of law.”

The argument that a layman cannot make meaningful conclusions on an ultimate question of insanity, which now involves areas of mental disease or defect and mental capacity to appreciate the criminality of conduct and the ability to conform conduct to law, has considerable merit. As the behavioral sciences improve and become more exact, the merit of the arguments will become enhanced. But the same arguments were existent prior to the adoption of the definition of insanity in the present Criminal Code (SHA Ch 38, Sec 6-2) and reference to the Committee Comments suggest that Section 6-2 did not constitute a radical departure from the previous court made statements of the rule, except to conform its language to terms more congenial to modern psychiatric understanding. (See also The People v. Carpenter, 11 Ill 2d 60, 142 NE2d 11 (1957).)

The direction of the cases, both prior to and subsequent to the adoption of the Criminal Code of 1961, indicates no departure from the right of a lay witness, after proper foundation based upon his own observation, to give his opinion as to whether or not a defendant is criminally responsible for his conduct as the result of mental disease or mental defect.

The lay witness, however, should not be allowed to give his opinion in answer to a hypothetical question, as his opinion must be based on his own observation. People v. Wax, supra, page 172.

We do not consider the remaining questions which defendant has raised, as we have not found them either to be substantial or likely to arise on a new trial.

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

Reversed and remanded.

MORAN, P. J. and DAVIS, J., concur.

       In substance the motion alleged that on September 18th, 1968, the defendant became officially aware of the fact that his cause had been placed on the trial call of Judge Rutkowski and that defendant believes that said judge is, or may be, so prejudiced against him that he cannot have a fair and impartial trial. The motion was supported by the sworn affidavit of the defendant.

       It appears from the colloquy between the State’s Attorney, defendant’s counsel and the court that the court assumed that the matter was assigned to her as early as July before she had left on a vacation, pursuant to an understanding that it would be tried in her “term” as trial judge in Jo Daviess County. The State’s Attorney stated that this was his understanding of the usual procedure in that county and that because of the vacation of Judge Rutkowski the preliminary matters would be heard by the resident associate judge, although it was “standard operating procedure” to have major felonies heard by a full circuit judge. In this connection the State’s Attorney stated, “Now, whether there was a formal setting of that, this is the problem.” Defendant’s counsel was admittedly not so advised and he stated without contradiction that the first time he had any knowledge that the case was assigned for trial before Judge Rutkowski was on the first appearance of that judge in the case on September 18th.

       114-5. Sec 114 — 5. Substitution of Judge.) (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of judge or any 2 judges on the ground that such judge or judges are so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another court or judge not named in the motion.
      (c) In addition to the provisions of subsection (a) and (b) of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.

       A particular objection was made to Dr. Graybill reading to the jury a psychiatric report of his interview with the defendant on Sept 26, 1968. Defendant claims error in the overruling of his objection, suggesting that, in view of his objecting to the competency hearing, he was under testimonial compulsion, compounded by absence of warning of the possible later use of his statements against him. Within the rationale of the cited cases, on retrial, incriminating statements in the report should not be given to the jury beyond those clearly necessary to show mental condition, and the jury should then be advised that the statements are not admitted for their truth, on the issue of guilt.

       The killing of defendant’s wife occurred on July 19th, 1968. On April 29th, 1968, defendant had been admitted to the East Moline State Hospital at the suggestion of his wife and the sheriff’s office as a voluntary patient. He was given a psychiatric examination including various psychological tests, but at his request immediately after admittance he was discharged on the expiration of his five days’ notice.


author: JUSTICE MORAN.

text:
    Larry Allan Slightom, a Minor, Etc., Plaintiff, v. Ashmore Grain Company, Edsel Higgins, Beulah Grejtak, Administratrix of the Estate of Donald L. Duvall, Deceased, U-Haul Company, William Green and Arcoa Company, Defendants. Beulah Grejtak, Administratrix of the Estate of Donald L. Duvall, Deceased, Counterplaintiff-Appellant, v. Ashmore Grain Company and Edsel Higgins, Counterdefendants-Appellees.
    Gen. No. 68-27.
    Fifth District.
    October 22, 1969.
    Gordon Burroughs, Burroughs, Simpson & Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellant; Cornelius T. Ducey, Johnson, Ducey & Peder, of Belleville, for appellees.
   Opinion by

JUSTICE MORAN.

Not to be published in full.