author: MR. JUSTICE SULLIVAN

text:
    Rosetta Houston, Plaintiff-Appellee, v. Leyden Motor Coach Co., Defendant-Appellant.
    Gen. No. 52,351.
    First District, Third Division.
    November 21, 1968.

      Herbert L. Caplan, of Chicago (Herbert L. Caplan and Richard J. Aronson, of counsel), for appellant.
    Hickey, Gustafson and Peterson, of Chicago (Edward Wolfe, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

The defendant appeals from an order sustaining the plaintiff’s motion to set aside the jury’s answer to the special interrogatory and to grant a new trial. It was stipulated by both parties that the trial court’s sole reason for setting aside the special finding was that the special finding was against the manifest weight of the evidence.

The only contention now raised by the defendant is that the special finding was not contrary to the manifest weight of the evidence and, therefore, its motion to enter judgment on the special finding in favor of the defendant should have been granted.

The plaintiff brought this action against the defendant for personal injuries which she allegedly sustained while attempting to step off a bus owned by the defendant. The complaint alleged that the defendant was liable for her injuries on the sole theory that the driver of the bus, while acting as an agent of the defendant company, “carelessly and negligently controlled the exit doors of the bus.” The driver was not a party to the action.

At trial the testimony of three witnesses was presented. The plaintiff testified that when the bus reached her destination she went to the front of the bus, and when the bus came to a stop she stepped down to the last or lower step before the door at the front of the bus. According to the plaintiff, the doors opened and as she started to step down the driver closed the doors and she was squeezed and held between both door panels. She testified that the doors remained closed upon her for about thirty seconds until the driver finally succeeded in opening the doors. Plaintiff described her resultant injuries to the right side of her body. The plaintiff further stated that after the doors were finally opened, the driver said: “I was excited. I couldn’t open the doors.” She denied that the doors touched any part of her body as they were opening.

The driver, Mr. Glen Baer, testified that on the day in question the weather was cold, and, as a result, the doors opened more slowly than usual. The doors were folding panels which were opened and closed by the driver’s operating a lever beside him. It was admitted that the bus was one of the oldest in operation. Mr. Baer testified that he could see the plaintiff as she was facing the door while she was waiting to exit. The driver’s version of the accident differed substantially from the plaintiff’s testimony. He stated that he opened the doors and as the panels were drawing back slowly, the plaintiff stepped into the opening doors and apparently caught her foot in one of the panels. Since the plaintiff was standing in the lower stairwell, the driver was not certain as to which foot was being squeezed.

An eyewitness, Mrs. Lois McNight Gunder, was called by the defendant and testified as follows. On the date in question, she was a passenger on the same bus and was sitting directly behind the driver on the long seat which faced the front door of the bus. Mrs. Gunder testified that before the doors had completely opened, the plaintiff began to disembark at which time the door which was opening slowly passed over the plaintiff’s boot, and as the plaintiff touched the ground she uttered a moan. At no time did the witness see the doors close upon the plaintiff.

The following special interrogatory was submitted to the jury: “Was the driver of the bus, Glen Baer, guilty of negligence which proximately caused injury to the plaintiff at the time of the occurrence ?” The jury returned a verdict of $2,500 for the plaintiff and also responded in the negative to the special interrogatory. The trial judge set aside this answer and granted a new trial for the sole reason that the answer to the special interrogatory was against the manifest weight of the evidence.

The plaintiff neither pleaded nor proved that the defendant’s liability was also predicated on the theory that the defendant had been guilty of negligent maintenance of the bus. It was established that the bus was old and that the low temperature caused the doors to open slowly, but such evidence was not sufficient for the trier of fact to find liability based upon faulty maintenance even if the maintenance theory had been properly pleaded. Therefore, it becomes apparent that the jury’s special finding that the defendant’s agent was not negligent was irreconcilable and inconsistent with the general verdict rendered in favor of the plaintiff.

When a special finding on an ultimate issue of fact is inconsistent with the general verdict, the special verdict controls the general verdict. This rule has been legislatively recognized in section 65 of the Civil Practice Act and by numerous decisions. The basis for the rule has been said to be that a jury more clearly comprehends a particularized special interrogatory than a composite of all the questions in a case, and therefore a special finding upon which a jury has presumably more intensively focused its attention should prevail. Borries v. Z. Frank, Inc., 37 Ill2d 263, 226 NE2d 16.

It is true that a trial judge may and ought to set aside the answer to a special interrogatory where the finding is against the manifest weight of the evidence. Patton v. Titus, 77 Ill App2d 403, 222 NE2d 573; Peach v. Peach, 73 Ill App2d 72, 218 NE2d 504; Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128 (affd 33 Ill2d 103, 210 NE2d 191); and it is proper for a new trial to be granted where such a finding is contrary to the manifest weight of the evidence. Freeman v. Chicago Transit Authority, supra.

However, the defendant contends that in the instant case, it was error to grant a new trial because the special finding was not against the manifest weight of the evidence. To be against the manifest weight of the evidence requires that an opposite conclusion be clearly evident. Arboit v. Gateway Transp. Co., 15 Ill App2d 500, 146 NE2d 582. “Manifest” means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705.

After a careful examination of the record, we conclude that the jury’s finding that the driver was not negligent was not against the manifest weight of the evidence. The jury was confronted with conflicting testimony as to whether the doors of the bus prematurely closed upon the plaintiff or whether the plaintiff entrapped herself in the doors as the doors were opening. If the jury accepted the testimony of the driver and of the eyewitness, it would be perfectly warranted in concluding that the driver was in no way careless or negligent in his control of the exit doors. The plaintiff’s brief places great stress on the attempts made to impeach the testimony of these two witnesses. These efforts were made before the jury and were to be evaluated by the jury. The trial judge cannot substitute his judgment for that of the jury as to the credibility of the witnesses so as to conclude that the special finding is against the manifest weight of the evidence. It is the function of the jury to weigh contradictory evidence, to judge the credibility of the witnesses, and to draw the ultimate conclusions as to the facts. Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212. Its conclusion should not be set aside merely because different conclusions could be drawn or because the trial judge feels that other results are more reasonable. Dowler v. New York, C., & St. L. R. Co., 5 Ill2d 125, 125 NE2d 41.

Since the special finding was not against the manifest weight of the evidence, that finding is binding on the trial court. Paul v. Garman, 310 Ill App 447, 34 NE2d 884; Todd v. Borowski, 25 Ill App2d 367, 166 NE2d 296. In Borries v. Z. Frank, Inc., supra, the Supreme Court affirmed the trial court’s judgment on the inconsistent special finding and reversed the Appellate Court’s decision which ordered a new trial due to the inconsistency. After concluding that the special finding was not against the manifest weight of the evidence, the court stated at page 266:

“To now hold, as plaintiff urges we do, that the jury’s confusion manifested by the inconsistent special finding and general verdict automatically necessitates a new trial would patently nullify the pertinent provision of section 65 (of the Civil Practice Act) . . . .”

We therefore believe, under the facts and pleading of the instant case, that the jury’s finding upon the special interrogatory should not have been stricken and that the defendant’s motion for judgment on the special finding should have been granted.

Accordingly, the order granting a new trial is reversed and the cause remanded with directions to enter judgment on the special finding in favor of the defendant.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    Harold L. Ross and Sylvia J. Ross, Plaintiffs-Appellees, v. Danter Associates, Inc., Defendant-Appellant, and Robert L. Daniels, Defendant.
    Gen. No. 67-82.
    Third District.
    November 22, 1968.

      Bernard Susman, of St. Louis, Missouri, and Norman Walker, of Rock Island, for appellant.
    Van Der Kamp & Crampton, Ira Melaas, Jr., and Robert Boeye, of Rock Island, for appellees.
   STOUDER, J.

In this action for damages of breach of contract, the Circuit Court of Rock Island County sitting without a jury, entered judgment in favor of Plaintiffs, Harold Ross and Sylvia Ross, against Banter Associates, Inc., Defendant, for $84,839.42 from which judgment the defendant appeals.

Defendant is engaged in the design, construction and development of real estate projects. In April, 1964, Robert Daniels, President of defendant corporation and a resident of St. Louis, Missouri, commenced discussions with the plaintiffs, residents of Rock Island, concerning the development and construction of a Travelodge motel and restaurant. Prior thereto Daniels had constructed other motels for the Travelodge Company. In May, 1964, a letter of intent was executed by the parties preliminary to the negotiations and execution of the arrangements incident to the development of a tract of land in Rock Island County for a motel and restaurant. Thereafter plaintiffs exercised options on four parcels of land in Moline, Illinois, upon which the motel and restaurant were to be constructed. The parcels were purchased for $140,000 and title was taken in the names of the plaintiffs. On November 6, 1964, the contract which is the subject of this litigation, was executed. It provided in great detail that the defendant would construct two buildings on the property of plaintiffs, one a freestanding restaurant together with the equipment therefor, and the second a motel building for which the plaintiffs agreed to pay to the defendant $412,000. Neither of the buildings was ever constructed and this action for breach of contract was filed by the plaintiffs in July, 1965.

In seeking to reverse the judgment of the trial court, defendant argues first, that as a matter of law, the plaintiffs were not ready and willing to perform their obligations under the contract, second, that defendant had performed and was ready, willing and able to perform all its obligations under the contract, third, that the court erred in denying defendant the right of surrebuttal, fourth, that the court erred with respect to the application of rules regarding damages and fifth, that the judgment of the court was improperly entered in favor of Sylvia Ross since she had not signed the contract.

Defendant first argues the trial court erred in failing to hold as a matter of law that plaintiffs were not “willing and ready” to perform their obligations under the contract as alleged in their complaint which allegation they were bound to prove. This argument is based in part upon a provision in the contract. After providing for progress payments the contract provides “All payments subject to requirements of interim financing disbursement agreement.” Defendant argues first, plaintiffs had failed to comply with the requirements of the interim financing agreement, second, that plaintiffs could not comply with such requirements and third that plaintiffs failed to prove their financial ability to carry out their obligations under the contract.

Plaintiffs had discussed and arranged for a loan to finance the project with the Moline National Bank in the amount of $412,000, the amount which plaintiffs agreed to pay to defendant. The proposed loan was both a construction or interim financing loan as well as a long-term loan. In addition to the security of a first lien, the bank among other things, required the assignment of the lease between plaintiffs and Travelodge, the assignment of plaintiffs’ interest in a joint venture which would operate the motel and restaurant, a contractor’s performance bond and the approval of such documents by the bank or its attorney as they related to the security interest of the bank.

On January 7,1965, pursuant to a request for a progress payment made by Daniels in behalf of defendant, a meeting was held in the offices of the Moline National Bank. The request for a progress payment was in the amount of $34,809 and was made up largely of engineering and architectural expenses. In addition, it included cost of site preparation, demolition of a small building, miscellaneous disbursements and $5,000 which defendant had deposited with an equipment supplier for equipment as selected by plaintiffs. The sum of $31,327 was disbursed by the bank and paid to defendant, the bank retaining ten percent until completion of the job as is customary. At this meeting, Daniels had a contractor’s surety bond which had been approved by a commercial surety in favor of Peterson Roberts Construction Company, which bond had not been executed by the construction company. Daniels expected the surety bond to be executed by Peterson Roberts but, in fact, it was not so executed and no other contractor’s surety bond was ever executed or delivered to the plaintiffs or the bank. At this meeting the President of the bank indicated that no future disbursements would be made from the loan fund until there had been compliance with the bank’s requirements, which statement was confirmed by letter of the same date. No additional request for progress payments was ever made by defendant.

Admittedly, the financing requirements of the bank had not been completed and according to the argument of the defendant, such fact is fatal to the plaintiffs’ right to recover. We agree with the general principle cited by the defendant that a plaintiff must allege and prove performance of all conditions precedent and a tender or offer to perform those conditions which are concurrent or mutual and further, we agree with the general proposition that where two parties to a contract are in default neither can recover. Cincinnati, I. & W. R. Co. v. Baker, 130 Ill App 414, and 17 Am Jur2d, Contracts, § 358, page 797. However, we do not regard any of the cases cited by defendant as authority for holding that the provision in question is either a condition precedent or a mutual condition. According to the terms of the contract, defendant’s obligation to perform was independent of any obligation on the part of the plaintiffs either prior to or contemporaneous with the completion of requirements of the interim financing. Even if such were not the case, we believe the defendant by its conduct either waived or excused any further efforts by plaintiffs to complete the financing arrangement. The defendant requested and accepted a progress payment disbursed by the lending agency with full knowledge that the financing requirements had not been concluded. Furthermore, the defendant never secured and executed a contractor’s performance bond. In our view plaintiffs were amply justified in concluding from defendant’s conduct that further action in completing the financing arrangement would indeed have been useless action.

Defendant also argues in respect to the willingness and readiness of the plaintiffs to perform their contract, that the plaintiffs could not comply with the bank’s financing requirements and since they needed a loan they were not in a position to perform their obligation. Further, according to defendant, plaintiffs failed to introduce evidence as to their ability to perform their obligation. Initially we note that defendant is in a rather anomalous position. In effect, defendant is suggesting that a project which it proposed and promoted is financially unsound. Admittedly, the lease and joint venture agreements were not finalized. However, they were substantially completed. Defendant has called to our attention many irregularities and areas of incompleteness in the agreements and concludes, therefore, that the requirements of the bank could not be satisfied. However, the President of the bank and its attorney each testified that the construction loan was progressing in normal fashion and neither indicated any likelihood or probability that the loan would not be concluded in due course. In this connection defendant’s attorney made an offer to introduce into evidence certain documents pertaining to the operation of the restaurant-motel for the purpose of asking the President of the bank whether such documents had been assigned to the bank. The trial court declined such offer and its ruling is assigned as error. We find no error in the court’s ruling. The President of the bank had already testified that no documents respecting the operation of the motel and restaurant had been assigned to the bank and, therefore, identification of the documents for such purpose would have been cumulative and of no particular assistance to the court. In addition, except for a supplemental joint venture agreement, the other documents were not relevant to the issues since there was no contention that their assignment was a requirement of the bank.

As indicated above, we believe there is ample evidence that plaintiffs could have secured a loan in the amount required. The value of plaintiffs’ land was substantial and their equity in the completed project would have been substantial. We believe that a sufficient showing was made regarding plaintiffs’ financial ability to carry out their obligation under the contract.

The next question which we will consider is which of the parties breached the contract. Defendant claims it was ready, willing and able to perform the contract but was prevented from so doing by the plaintiffs. The plaintiffs, on the other hand, contended that defendant refused to construct the buildings and supply the equipment as agreed.

The main thrust of plaintiffs’ evidence is that after the execution of the contract, the defendant learned the two buildings and restaurant equipment could not be constructed and supplied in Moline for the agreed price. As a consequence, the defendant proposed to build a combined restaurant and motel unit. In its turn the defendant attempted to prove by the evidence that the two buildings and equipment could be constructed and supplied for the price agreed upon and that its offer to do so had been declined by plaintiffs.

The defendant has made several assignments of error respecting evidence and in order to consider such errors a brief summary of the evidence relating thereto is required.

The defendant was not in the business of actual construction and it appears that it expected Peterson Roberts Construction Company of Rock Island to undertake the actual construction. Peterson Roberts never agreed to do this. After many complaints of plaintiffs that work had not commenced as provided by the contract, defendant telegraphed plaintiffs as follows: “In view of apparent inability to negotiate with suppliers, it is our decision to build Moline structures with our own construction company, bonding same as required by Ross and Bank. Plan to commence work Tuesday or Wednesday; will confirm details verbally . . . .” A contract dated March 1,1965, between defendant and Buckley Construction Company was introduced as an exhibit by defendant in support of his contention that the contract could be performed within the price agreed. Whether such contract did contemplate performance in accord with the contract between plaintiffs and defendant is a controverted issue. Buckley, President of Buckley Construction Company, came to Moline shortly after the middle of March for the purpose of commencing the construction, according to the testimony of Daniels. Buckley stayed a few days and further, according to Daniels, Buckley called Daniels and stated that plaintiffs would not go ahead with the building. Harold Van Der Kamp, attorney for plaintiffs, who handled most of the transactions during the negotiations, testified that Buckley had called at his office shortly after the middle of March, 1965. At such meeting, according to Van Der Kamp, Buckley indicated he would build only a combined restaurant and motel building, that his contract did not include equipment for the restaurant, that Buckley Construction wanted a contract directly with plaintiffs and that the progress payment made to defendant should be refunded. Since Buckley did not testify, defendant argues Van Der Kamp’s testimony should have been excluded since the statements were hearsay. We find no merit to such contention. In its telegram defendant referred to Buckley Construction Company as “our” construction company and in his direct testimony Daniels indicated that Buckley was sent to Moline as “his direct representative.” Under such circumstances, the conversation with Buckley cannot be regarded as hearsay. Of further significance regarding defendant’s objection is the fact that Daniels himself first introduced into the case the telephone call in which Daniels testified that Buckley told him plaintiffs would not continue. It is difficult to see how the defendant is in any position to complain concerning evidence which it first introduced.

Daniels in his testimony admitted that during February and March, new plans were prepared at his request, not plaintiffs’, for the combining of the restaurant and motel in one building. Shortly after the meeting with Buckley, these plans were submitted to Van Der Kamp, but plaintiffs were unwilling to agree to the modifications. Where problems have arisen it cannot be said that an effort to modify a contract is in and of itself a breach of the contract. Nevertheless, when in fact the buildings are not built, it can be considered with all other facts in determining the responsibility for the failure of the contract to be performed.

Over objection of defendant the trial court permitted the introduction of a letter from Daniels to Van Der Kamp dated March 29,1965. The letter indicated that a check was enclosed without indicating any purpose therefor and also indicated that building the restaurant as a separate unit was a problem and if built a total payout might be $25,000 or $50,000. Defendant objects to the admission of this letter on the grounds that it was a compromise offer and hence not relevant to the issue. We agree with the general principle that the law favors compromises and in order to promote such goal, offers of compromise or settlement are as a matter of policy, inadmissible. After reviewing the authorities relied upon by defendant, Bowman v. Illinois Cent. R. Co., 11 Ill2d 186, 142 NE2d 104, and Cedar Rapids & Iowa City Railway & Light Co. v. Sprague Elec. Co., 280 Ill 386, 117 NE 461, we agree with the trial court that such letter was admissible since it was not an offer of compromise or settlement.

Plaintiffs presented the testimony of Charles and Russell Roberts of Peterson Roberts Construction Company, who testified during plaintiffs’ main case that the cost of constructing the two buildings would be $500,200. The purpose of such testimony was twofold, first, to present reasons for defendant’s failure to construct the buildings and second, to establish the damages they had sustained. These witnesses testified that their estimates had been prepared in cooperation with Carl Smith, project engineer for defendant, the latter having taken office space with Peterson Roberts Construction Company for two or three months commencing in December, 1964.

Defendant also introduced an extensive cost analysis indicating that the two buildings and equipment could be constructed and supplied for the agreed price of $412,000. The purpose of this evidence was also twofold, first, to indicate that he had no reason for not complying with the terms of the contract and second, to refute the plaintiffs’ contention that they had sustained damage.

On rebuttal, the Roberts presented a breakdown of their estimates and subcontractors’ bids in support thereof, prepared early in January, 1965, and according to the witnesses, communicated to Carl Smith at the time. Roberts also testified in great detail concerning the cost analysis of defendant indicating respects in which the witness believed the cost analysis of defendant was inaccurate, inconsistent and incomplete.

On appeal the defendant has devoted a large portion of his brief to areas of inconsistencies and inaccuracies between the cost estimates presented by the parties in support of its assertion that the testimony in behalf of plaintiffs should be deemed unbelievable. Notwithstanding defendant’s insistence to the contrary, we believe this is a factual issue dependent upon the credibility to be accorded the testimony. This is the function of the trial court to determine the credibility of the evidence. It is apparent from the judgment that the trial court did not place complete reliance on the testimony of either party in this regard. Furthermore, we believe that the trial court’s resolution of the factual issues in favor of plaintiffs on the issue of liability is amply supported by the evidence and not against the manifest weight of the evidence.

After the presentation of the plaintiffs’ last rebuttal witness, a conversation ensued concerning the admission of exhibits. During such conversation the following colloquy took place. “Mr. Susman: There is a possibility we might want to have some surrebuttal. May we have a few minutes to go over our notes? Court: I don’t understand what you mean. Mr. Melaas: They feel they want to have some surrebuttal. Court: No, you don’t get another turn. The evidence is over. Mr. Susman: For the record, I would like to make an objection that perhaps we might want to put on some surrebuttal testimony and I take it you deny my request and I would like the record to show that. Court: Okay, the proposal to produce further evidence in defense is overruled.” In this court defendant contends the trial court erred in denying it the right of surrebuttal. Conceding that the right of surrebuttal is discretionary, the defendant asserts that the trial court abused its discretion.

The purpose of surrebuttal is to permit the defendant to introduce evidence in refutation or opposition to new matters interjected into the trial by the plaintiff on rebuttal. City of Sandwich v. Dolan, 42 Ill App 53, affd 141 Ill 430, 31 NE 416, and City of Rock Island v. Starkey, 189 Ill 515, 59 NE 971. In other words, fairness requires that the defendant be permitted to oppose new matters presented by plaintiff for the first time which the defendant could not have presented or opposed at the time of the presentation of his main case. Contrarywise, the purpose of surrebuttal is not the introduction of evidence merely cumulative to that presented by the defendant in its original presentation. City of Sandwich v. Dolan, supra, and Chicago City Ry. v. Carroll, 206 Ill 318, 68 NE 1087. It follows that the defendant has no right to present surrebuttal evidence merely because the plaintiff has presented rebuttal evidence. Since surrebutal is only properly permitted where the plaintiff has presented new matters on rebuttal which the defendant desires to oppose we believe that such new matters must be called to the attention of the trial court. Otherwise, there is no basis for granting the request for surrebuttal nor any basis for invoking the discretion of the trial court. Such new matters need not be called to the attention of the trial court in any formal fashion, but we believe the trial court must be given the opportunity and basis for determining whether new matters have indeed been presented on rebuttal. Plaintiffs’ attorney would appear likewise entitled to oppose the defendant’s request on the basis that no new matters had been introduced by way of rebuttal. That the defendant should be required to bring such new matters to the attention of the trial court is fair and reasonable both procedurally and substantively.

Defendant seeks to excuse its failure to present any reason in support of its request for surrebuttal for the reason that its principal attorney practiced primarily in Missouri and was unfamiliar with Illinois law or practice. We do not believe that such reason is a sufficient basis for requiring a retrial of the issues. Furthermore, defendant’s principal attorney was assisted by experienced local counsel.

Defendant has called to our attention several respects in which it believes the plaintiffs presented new matters in their rebuttal testimony. In view of our decision that these matters should first have been called to the attention of the trial court, no useful purpose would be served in discussing them in this opinion.

Defendant also argues that the court erred in the assessment of damages. As we have said before, defendant endeavored to show by its evidence that the two buildings could be constructed and the restaurant equipped for the contract price of $412,000. Plaintiffs endeavored to show by their evidence that the cost of constructing the two buildings was $500,200, that the cost for equipping the restaurant would be $33,409.20, and that had the project been completed they would have been entitled to a refund of $3,500 paid to the defendant at the time of, and in accord with the terms of the letter of intent. Thus, the range of testimony concerning damages is zero as contended by defendant and $123,859.20 as contended by plaintiffs.

As we have said before, the court committed no error in considering the evidence of each party submitted on this issue. Defendant argues that the award of damages was erroneous in two other respects. In its memorandum opinion the trial court in discussing the issue of damages, indicated that the $31,327 progress payment had not been earned by defendant and hence the damages should include the recovery thereof by plaintiffs. Also, the trial court indicated the damages should include the $3,500 paid at the time of the execution of the letter of intent. In addition, the trial court indicated that in considering the range of the testimony it was inclined to accept defendant’s statement of its prospective loss of $50,000, which figure was mentioned in defendant’s letter of March 29, the letter which defendant asserts was improperly admitted as an exhibit. Reliance on the latter letter and its conclusion regarding the progress payment are assigned as errors by defendant.

In their complaint the plaintiffs alleged they had made a progress payment to defendant and that it was not earned. Defendant in its answer denied that the progress payment was not earned, insisted that it had been earned and introduced evidence in support of such contention. In their prayer for damages plaintiffs requested they be awarded damages in the amount of $150,000 without relating such demand to the progress payment.

The question of whether a payment has been earned is not a proper issue in the determination of damages for breach of contract. We believe the allegation in the complaint was intended to negate any contention that defendant was entitled to the progress payment either by virtue of the terms of the contract, the conduct of the parties or some other theory such as quantum meruit. The rule with respect to the measure of damages is, we believe, properly stated by defendant, namely, the “. . . difference between the cost of constructing, by contract, the building the contractor agreed to put up, and the fair cost market price of erecting such building.” Bertram v. Berquist, 153 Ill App 43; see also Schuyler County v. Missouri Bridge & Iron Co., 256 Ill 348, 100 NE 239. Notwithstanding its recognition of the proper rule of damages, the defendant insisted in the trial court and continues to insist in this court that it had earned such progress payment concluding that the trial court’s indication to the contrary thereby renders its judgment improper.

In the application of the proper rule of damages applicable to this situation we believe the question of whether the contractor has earned any payments which he has received is irrelevant. The following example may serve to illustrate the application of the rule. Suppose a contractor has agreed to build a building for an owner for $400,000. Suppose further the contractor has partially constructed the building and has received $200,000 and at this point refuses or is unable to continue the contract and is hence in breach of contract. Suppose, also, that at this point the reasonable cost of completing the building would be $300,000. In determining the damages sustained by the owner, the cost of performance would be, first, the amount paid to the contractor, $200,000, plus the cost of completion, $300,000, or a total of $500,000. The difference between this amount, $500,000, and the contract price $400,000, or $100,000, would be the damages sustained by the owner. In this example it may well have been that the contractor actually incurred expenses of $200,000 for labor and material and he may consider that he earned such amount. The rule as so applied gives due effect to the partial performance by both contractor and owner independently of any issues regarding the earning of the partial payment or the refund thereof.

We believe the responsibility for interjecting the issue of whether the progress payment was earned or not was as much the fault of defendant as of plaintiffs. We also believe the trial court applied the proper rule of damages and that its comments regarding the earning of the progress payment represents a practical application of the proper rule in terms designed to respond to defendant’s contentions. The judgment in the amount of $84,839.42 is well within the range of the testimony and substantially less than the damages testified to by plaintiffs’ witnesses. The substance of the trial court’s comments on the various items of damage is that it believed the difference between cost of completion and contract price would be $50,000 to which should be added payment already made, additional cost of securing performance, and thereby arrived at a difference between total reasonable cost of securing performance and the contract price.

As we have said earlier, we believe the court did not err in admitting the letter of March 29 in which defendant indicated that building the two buildings might cost him $25,000 or $50,000. We also note that there is testimony concerning conversations with Daniels in which the latter indicated that it would cost him as much as $70,000 to construct the buildings. As we have heretofore observed, the measure of damages does not include the cost or loss of the contractor, but we believe such admissions are relevant to the credibility of the cost estimates and are also relevant to a determination of damages within the range of the testimony relating thereto. Accordingly, we find no error in the assessment of damages by the trial court.

Lastly, defendant objects that the court erred in entering judgment in favor of both Sylvia and Harold Ross urging in support thereof that Sylvia Ross did not sign the contract of November 6, 1964. We find no error in this respect since it was not an issue in the case. Sylvia and Harold Ross were designated as plaintiffs in the complaint which alleges that they entered into the contract with defendant. Such allegation was admitted by defendant in its answer and the issue was not controverted at the trial. In our opinion this issue is raised too late and we find no error in the judgment of the court with respect thereto.

For the foregoing reasons the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY, P. J. and CULBERTSON, J., concur.


author: JUSTICE GOLDENHERSH.

text:
    Seville Phillips, Plaintiff-Appellee, v. Bracy Food Stores, Inc., a Foreign Corporation, Defendant-Appellant.
    Gen. No. 68-33.
    Fifth District.
    November 22, 1968.

      Lewis & Lewis, of Benton (Loren E. Lewis, of counsel), for appellant; Elmer Jenkins, of Benton, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: CULBERTSON, J.

text:
    Earl Burkitt, Plaintiff-Appellant, v. John L. Downey, Defendant-Appellee.
    Gen. No. 68-55.
    Third District.
    November 22, 1968.
    Rehearing denied December 26, 1968.

      Jacob Cantlin and Donald E. Blodgett, of Rock Falls, for appellant.
    Yalden, Ridings & Remensius, of Rockford, for appellee.
   CULBERTSON, J.

Appeal has been prosecuted in this case from an order of the Circuit Court of Whiteside County which, pursuant to a petition filed under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 72), vacated a default judgment and gave defendant twenty days to answer a complaint filed in the original controversy. We have jurisdiction since, in a section 72 proceeding, such an order is considered to be final and appealable. Cowen v. Harding Hotel Co., 396 Ill 477, 480, 72 NE2d 177; Christian v. Smirinotis, 388 Ill 73, 57 NE2d 457. Cf. Williams v. Morton, 80 Ill App2d 442, 225 NE2d 671.

In the order of their occurrence, undisputed facts gleaned from the record show that on November 7, 1966, the plaintiff, Earl Burkitt, was a guest passenger in a 1966 automobile being driven along a rural section of Illinois Route 78 by the defendant, John L. Downey. The car left the road on a curve and struck a tree, and defendant reported to the investigating police officer that a tire had blown just as the car entered the curve. Plaintiff, it appears, suffered a broken collarbone. On June 15, 1967, an attorney wrote to defendant stating that he had been consulted by plaintiff concerning a claim for injuries arising out of the accident, and requesting defendant to come in to discuss the matter before any legal action was taken. Defendant immediately took the letter to his local insurance agent in Sterling, Illinois, and the latter, on June 21, 1967, forwarded it to the home office of the insurer together with a review of the facts surrounding the accident. Thereafter, on July 12, 1967, plaintiff filed a suit against defendant, and the latter was served with summons the following day at 5:30 p. m. The complaint alleged that defendant had “wilfully and wantonly started to strike the Plaintiff about the face and head and lost control of his car, ran off the road and struck a tree.” On July 14,1967, defendant took the corn-plaint and summons to his insurance agent and the latter forwarded them to the company together with a covering letter asking for prompt attention and for notification as to whether the company would defend the action.

On August 16,1967, four days after the return date on the summons, plaintiff took a default against defendant for failure to appear and plead, presented evidence relating to damages, and was awarded a judgment of $4,000. The following day plaintiff’s attorney wrote a letter to defendant advising him of the judgment and requesting that defendant, for a purpose of avoiding garnishment of his wages, come to the attorney’s office to discuss settlement. The letter also informed defendant that the attorney would be on vacation and not available for discussion until after September 5,1967. As had occurred in the prior instances, defendant took the letter to his insurance agent and the latter, on August 19, 1967, sent it to the insurer. It was not until September 22, 1967, more than thirty days after judgment, that the company retained an attorney in the matter. Thereafter, on September 26, 1967, defendant’s attorney contacted plaintiff’s counsel, and two days later the latter sent a letter to the former stating that plaintiff’s doctor bill totalled $145 and his hospital bill $92.50.

Defendant’s section 72 petition to vacate the default judgment was filed October 31, 1967. Among other things, it alleged that he had a meritorious defense to the original controversy; that he did not beat the plaintiff as alleged in the latter’s complaint; that the blowout of a tire was the cause of the accident; that defendant had diligently turned over the complaint and summons to the insurer’s agent; that the insurer had either failed to receive or had lost the summons and complaint; and that defendant, although his whereabouts were known to plaintiff, was not notified that plaintiff was going to take a default and offer proof. After a motion to strike the petition had been denied, plaintiff filed an answer and at the hearing which followed defendant presented various letters as documentary support for his petition. Also presented was an affidavit of an officer of the insurer which acknowledged receipt of the complaint and summons, but stated that they had been misplaced, and that proper entries had not been made in its law ledger due to the fact the company had lost its experienced law ledger clerk and was, at the time in question, in the process of hiring and training new personnel. The trial court granted the petition and this appeal by the plaintiff has followed.

Since the inception of section 72 it has come to be well settled that a petition to set aside a default judgment must adequately set forth sufficient facts to show first, a meritorious defense, and second, due diligence on the part of the defaulted party. (Detres v. Rojo, 80 Ill App2d 38, 225 NE2d 100; Calvo v. Willson, 59 Ill App2d 399, 207 NE2d 496; Elmwood Ford Motors, Inc. v. Mardegan, 42 Ill App2d 342, 192 NE2d 445.) Equally well settled since the decision in Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350, is the concept that a section 72 petition “invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstance.” (Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 190 NE2d 348.) In short, as did the court in Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299, we interpret the Elfman and Ellman decisions to mean that even though there may have been a lack of due diligence in presenting a defense, a default judgment may nonetheless be set aside if justice and good conscience requires it.

No issues are raised on appeal as to the matter of a meritorious defense, both the trial court and the plaintiff apparently being satisfied that such a defense was shown, thus our consideration need be directed only to questions of due diligence and the exercise of equitable powers. In an oral opinion the trial court found that defendant had acted diligently and reasonably by turning over the summons, complaint and various items of correspondence to his insurer and, in vacating the judgment, expressly held that the apparent negligence of the insurer was not attributable to defendant. At the same time, the court expressly found that plaintiff had not been guilty of unfair or unconscionable conduct. And having made the latter finding, it is our opinion, based upon Chmielewski v. Marich, 2 Ill2d 568, 119 NE2d 247, that the trial court was plainly wrong when it permitted the insurer’s inaction to serve as an excuse for defendant’s failure to appear and plead in the action plaintiff brought against him. (See also: Colletti v. Schrieffer’s Motor Service, Inc., 38 Ill App2d 128, 186 NE2d 659.) In Chmielewski the court considered a contention of a defaulted defendant that his section 72 petition should have been granted on the ground that the delivery of a summons to his insurance brokers constituted due diligence, notwithstanding the insurer’s subsequent negligence in failing to defend. Rejecting this argument, the Supreme Court said: “This contention is without merit. His reliance on the insurance brokers is not a ground for relieving him of the consequence of the brokers’ apparent failure to fulfill their undertaking. We are not, of course, concerned here with the rights of Frank Fara (the defaulted defendant), the brokers or the insurers as among themselves. The sole question is whether, as between Frank Fara and the plaintiff, Fara’s failure to appear and make his defense was excusable. We hold that it was not.” (2 Ill2d at 576, 577.) It is true, as was observed by the court in Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299, that Chmielewski predates the apparent holding in Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, that even though there may have been a lack of due diligence, a default judgment may be set aside if equity so requires. But manifestly, the legal philosophy of Elfman can be permitted to prevail over the express holding in Chmielewski only if there are overriding equities which would cause it to be unjust and unreasonable for the default judgment to stand. (Cf. Mutual Nat. Bank of Chicago v. Kedzierski, 92 Ill App2d 456, 236 NE2d 336; Park Avenue Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76 Ill App2d 334, 222 NE2d 49.) In the present case, therefore, defendant’s failure to appear and defend was not excusable, and the order vacating the judgment can be justified only if required by the equities of the situation.

As previously noted, the trial court found that plaintiff had not acted unfairly or unjustly and, upon the basis of decisional criteria, we are inclined to agree. Several cases have found unfairness where, prior to the precipitate entry of a default judgment, settlement had been discussed or there were other manifestations that a claim would be defended and such facts were concealed from the court. (E. g., Calvo v. Willson, 59 Ill App2d 399, 207 NE2d 496; Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299; Boyle v. Veterans Hauling Line, 29 Ill App2d 235, 172 NE2d 512; Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill App2d 102, 167 NE2d 799; Ellman v. DeRuiter, 412 Ill 285, 106 NE2d 350.) Nothing comparable existed or was concealed from the court in this case. So far as the record shows, neither plaintiff nor his attorney knew or had reason to believe that there was an insurer who could be expected to defend the case, and an offer to discuss the claim before suit was filed was ignored so far as the plaintiff and his counsel knew. Again, it has been held that a default judgment becomes tinged with unfairness when its entry is concealed by the successful party for a period in excess of thirty days. (Detres v. Rojo, 80 Ill App2d 38, 225 NE2d 100; Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525; Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829; Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348.) But these decisions can have no persuasion in this case. The record shows that plaintiff’s attorney informed defendant of the $4,000 judgment the day following its entry. Even then defendant chose to rely upon his insurer and it was not until some 75 days later that formal steps were taken to set the judgment aside. (Cf. Elmwood Ford Motors, Inc. v. Mardegan, 42 Ill App2d 342, 192 NE2d 445.) Further, in the Elfman case, a judgment of $10,000 was set aside because the section 72 petition showed that the plaintiff had inequitably imposed upon the court and the defendant by introducing evidence of damages unrelated to the accident. The petition in the present case makes no comparable claim and the oral opinion of the trial court has a finding that proper evidence of damages was received.

“The power to set aside a default and permit a defendant to have his day in court is based upon substantial principles of right and wrong and is to be exercised for the prevention of injury and furtherance of justice.” (Spencer v. American United Cab Ass’n, 59 Ill App2d 165, at 172, 208 NE2d 118.) There is, however, a competing policy militating against the indiscriminate use of the power to vacate a judgment, which has been stated in Till v. Kara, 22 Ill App2d 502, at 511-512, 161 NE2d 363, in this manner:

“While the trend of judicial decision may be . . . to determine suits upon their merits and according to the substantive rights of the parties, when a party is sued and process duly issued and regularly served as provided by law and orderly procedure and practice is observed, a party must be governed by the law and rules of practice and must present his defense if he desires to contest the demand of the plaintiff for judgment .... A motion of the kind here presented, seeking to set aside a final judgment of a court having jurisdiction of the parties and the subject matter, is one of serious import and if treated lightly, threatens the stability of our courts.”

In light of all that is shown in the record, it is our opinion that the default judgment was not attended by unfair or unjust circumstances and that the competing policy must prevail in this case. Particularly is this true since, by the force of Chmielewski, we are not to be concerned with the rights of defendant and his insurer between themselves. Although the entry of a default and a prove-up of damages without notice four days after the return date may appear on the surface to be abnormally hasty, it cannot be said that plaintiff acted unconscionably or unfairly. Our Civil Practice Act authorized both the default and the prove-up at the time and in the manner in which they were accomplished by plaintiff. (See: Ill Rev Stats 1967, c 110, pars 50(4) and 71.) And, as we have said, there were no settlement negotiations, knowledge of an insurer, or the like which were concealed from the court, or which serve to render plaintiff’s course an unconscionable one.

We are not unaware of the suggestion in Elfman (27 Ill2d 609, 614-615, 190 NE2d 348) that “basic fairness” might require at least informal notice to a defaulted defendant of the plaintiff’s intention to prove up damages. In Elfman, however, settlement had been discussed and the plaintiff was aware that the defendant had legal counsel to defend the case. Here, by way of contrast, no such circumstances were present. Plaintiff’s counsel wrote to defendant on June 15, 1967, inviting a discussion of plaintiff’s claim but received no response. Summons was served on defendant on July 13, 1967, but no appearance was made or answer filed within the 30-day period required. In all, some 64 days passed from the date of the letter until the date of the default and prove-up. At no time during this period were plaintiff or his counsel contacted by defendant or anyone acting in his behalf, or advised that the matter had been turned over to an insurer. Faced with this attitude of nonresponse and inaction, plaintiff and his counsel could reasonably have believed that the claim was being ignored. As we see it, it was not unfair or unjust for plaintiff to then proceed to judgment as the law permitted him to do.

Accordingly, and for the reasons stated, the order of the trial court vacating the default judgment is reversed.

Order reversed.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Buster Brown, Junior, Defendant-Appellant.
    Gen. No. 52,180.
    First District, First Division.
    November 25, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Buster Brown, Junior, together with Dean Mulligan, George Morin and Robert Rouse, was indicted for armed robbery. Later, a severance for Mulligan was ordered. At the beginning of a bench trial for the remaining three, the charges against Morin were nolle pressed, and he later testified for the State. The trial proceeded as to defendants Brown and Rouse, and at the end of the State’s case the trial court found Rouse not guilty. Brown’s sister then testified in his defense as an alibi witness. Brown was found guilty as charged, and he was sentenced to the penitentiary for seven to twelve years.

On appeal, Brown contends that (1) he was not proved guilty beyond a reasonable doubt; (2) he was improperly convicted on the uncorroborated testimony of an accomplice; and (3) error was committed in the admission of an in-court identification which was tainted by a previous showup.

On January 31, 1966, at about 9:45 p. m., James Jergens and his sister Anna were watching television in their home at 3244 South May Street in Chicago. The front doorbell rang and when Jergens opened the door, he saw a Negro boy and a white man standing on the front porch, which was illuminated by an overhead light that Jergens had turned on earlier in the evening. One of the men handed Jergens a package, and the two men walked in. The Negro had a shotgun and said, “This is a holdup.” Anna Jergens went to the hall closet and turned over $300 which she kept there. At gunpoint, Jergens and his sister were herded into the kitchen, where they were tied up and left on the floor. The two men spent some time ransacking the house and left with two cans which contained money. In court, Jergens identified defendant Brown as the man who had entered his home with the shotgun and robbed him, and stated that $900 of his money was taken.

George Morin testified for the State. On January 31, 1966, at 6:00 p. m., he met Dean Mulligan. Mulligan made up an empty parcel wrapped for delivery, and they drove to Mulligan’s house where he picked up a shotgun. They then went to a tavern where they picked up Robert Rouse and defendant Brown. As the four drove to the vicinity of 31st and May Streets, they made plans for the robbery of the Jergens’ home, about which Morin was informed. It was decided that Mulligan and Brown would go to the front door and, after gaining entry, they would let Rouse in at the rear door. Mulligan would carry the “dummy” package, and Brown would carry the sawed-off shotgun. Upon arrival, Brown and Mulligan went to the front door while Rouse went into the alley in the rear. Morin remained in the car and did not see Brown or Mulligan enter or leave the Jergens’ house. A few minutes later Rouse returned to the car and stated that he was unable to gain entrance at the rear door. He and Morin waited in the car until Brown and Mulligan returned with two containers, in which $900 was found later and divided among the four men.

On cross-examination, Morin stated that he was arrested on March 22, 1966, in connection with an armed robbery in which he had participated on March 21. He told the police that he had no knowledge of the Jergens robbery. The police then told him they knew about it and, after a brief confinement in the same cell with Mulligan, he made an oral statement to the police, in which he admitted the January robbery and named Brown, Rouse and Mulligan. He had a conversation with an Assistant State’s Attorney, who said he would help him with the court. No promises were made to him, and he did not know until a month before the trial that the charges against him were to be nolle prossed.

Brown’s sister testified in his behalf that on the night of January 31, 1966, she and her brother had been drinking together in a tavern, and that he was not out of her sight until almost midnight and could not have committed the offense charged against him.

Initially considered is defendant’s contention that he has not been proved guilty beyond a reasonable doubt. Defendant argues that his identification by James Jergens should have been rejected because of Jergens’ poor eyesight, old age and emotions. It is argued that these factors and the swift course of events which permitted only two or three glances at the Negro robber, who was jumping from room to room, resulted in a vague description of the Negro robber.

Defendant Brown also asserts that the in-court identification by Jergens was tainted by an earlier identification made long before the trial and a month and a half after the robbery. This is based on the cross-examination of Jergens, who testified that he pointed Brown out to the police in a corridor in the Criminal Court Building, and that he never saw Brown in a lineup. He also said that he was in the living room with Brown and Mulligan approximately fourteen minutes.

On this point, defendant argues that Jergens testified he could not tell the ages of Negroes, and “it is doubtful if he could tell one Negro male from another.” Defendant contends that the in-court identification was a foregone conclusion, since Jergens would not have contradicted his previous identification, and by this time “he knew defendant well both by sight and by name, from previous appearances in court. It was meaningless, therefore, that this time defendant was near several other Negro men.”

Brown also maintains that the not guilty verdict for Rouse argues for a reasonable doubt of the guilt of Brown because the Jergens identification of Brown was not a sufficient basis for conviction.

Defendant’s authorities in support of the contention that the in-court identification by Jergens should have been rejected or treated as insufficient corroboration include Stovall v. Denno, 388 US 293 (1967), and United States v. Wade, 388 US 218 (1967). Also, People v. Gardner, 35 Ill2d 564, 572, 221 NE2d 232 (1966), where the court reversed a conviction because of failure to hold a proper lineup plus an alibi. Also, People v. Ikerd, 26 Ill2d 573, 188 NE2d 12 (1963), and People v. Cullotta, 32 Ill2d 502, 207 NE2d 444 (1965), where it was held that an identification cannot be sustained if it is vague and uncertain. Defendant states, “Because of the vagueness of Jergens’ observations, his poor opportunity to observe, and his physical handicaps, these cases are applicable herein.”

We find no merit in the contention that the in-court identification by Jergens should be rejected. The record does not demonstrate that the in-court identification was not of independent origin or that it depended upon the corridor identification. In People v. Gardner, 35 Ill2d 564, 221 NE2d 232, it is said (p 572):

“Although it is not necessary in every case to use a ‘lineup’ to make identification testimony admissible, . . . the fact that one was not used affects the weight of the identification.”

Defendant Brown next contends that the testimony of the accomplice, Morin, should have been rejected because of the power which the State held over him and because he was a confessed perjurer. Defendant asserts that Morin was induced to testify by the knowledge that the reward he was to be given for so doing could be taken away.

Brown’s authorities on the point that the testimony of an accomplice requires material, nonpartial corroboration include People v. Johnston, 382 Ill 233, 46 NE2d 967 (1943), at page 239:

“It is true that this court has held that where the testimony of an accomplice lacks material corroboration, or where it is discredited, or where it appears to be actuated by a desire to avoid punishment, it is not sufficient upon which to sustain a verdict and judgment of conviction.”

Both the victim, Jergens, and the accomplice, Morin, were subjected to extensive cross-examination. If there was any weakness in the testimony of Jergens because of his age and physical handicaps the court was made fully aware of it. As to the accomplice, Morin, the court was also fully informed as to his background and the fact that the indictment against him had been nollied because of his agreement to testify for the State.

Defendant Brown next contends that an inference adverse to the State’s case should be drawn from the failure to call Anna Jergens to bolster up her brother’s identification of the defendant. Defendant cites in support People v. DiVito, 66 Ill App2d 282, 214 NE2d 320 (1966), where it is said (p 286):

“The inference might well be that Orlach had seen the robbers and would have testified that the defendant was not one of them.”

In People v. Strong, 21 Ill2d 320, 325, 172 NE2d 765 (1961), it is said:

“While the State was not obligated to call Reynolds, . . . the unexplained failure to do so may give rise to an inference against the State.”

On this point the State asserts that it is not required in a criminal prosecution to call all of the witnesses who might be called to testify in the matter, and ordinarily the failure of the prosecution to call a particular witness raises no presumption that, if called, the witness would have testified adversely to the People’s case. Citations include People v. Williamson, 78 Ill App2d 90, 96, 223 NE 2d 453 (1966):

“When a case turns upon a disputed issue of fact which an available witness could resolve from his unique knowledge of the event and the State chooses not to call that witness to testify, then the trier of fact may infer that the testimony would have been unfavorable to the State.”

The State argues that Jergens positively identified Brown as the robber whom he had seen in his home, and that his sister Anna had no unique knowledge on any disputed point, therefore her testimony would have been cumulative and repetitious and no adverse inference can be drawn against the prosecution for not calling her to testify.

As to the failure to call Anna Jergens, we believe the rule to be applied here is “the State is not obligated to produce every witness to a crime and the failure to produce a witness does not give rise to a presumption that the testimony of that witness would be unfavorable to the prosecution.” People v. Jones, 30 Ill2d 186, 190, 195 NE2d 698 (1964).

After examining the authorities offered by both sides, we have concluded in this case that it was the function of the trial court, as the trier of fact, to determine the credibility of the victim, Jergens, and the accomplice, Morin, and the weight to be accorded their testimony, and unless that judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, this court, as a reviewing court, will not substitute its judgment for that of the trial court. People v. Garrett, 82 Ill App2d 192, 200, 226 NE2d 429 (1967).

From an analysis of the entire record, particularly the evidence relating to identification, it is our conclusion that the proof was sufficient to satisfactorily establish defendant’s guilt beyond a reasonable doubt. All of the alleged reasons for rejecting the identification testimony of the victim, Jergens, and the accomplice, Morin, were argued at length before the trial judge. Therefore, we will not substitute our judgment for that of the court below.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    Henry A. Graf and Alvin Green, Plaintiffs-Appellees, v. Ford Motor Company, a Foreign Corporation, Defendant-Appellant.
    Gen. No. 52,534.
    First District, First Division.
    November 25, 1968.

      Vogel & Vogel, of Chicago (L. H. Vogel and Conrad F. Floeter, of counsel), for appellant.
    Norman Peters, Joseph M. Fasano, and John G. Phillips, of Chicago (Sidney Z. Karasik, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which defendant, Ford Motor Company, appeals from judgments entered on jury verdicts in favor of plaintiffs (Graf, $2,500, and Green, $15,000), who were injured while passengers in an automobile driven by defendant’s agent. The basic issue is whether there was sufficient evidence to support the verdicts.

On appeal, defendant’s theory is: 1. The sole proximate cause of plaintiffs’ alleged injuries was the sudden and unexpected conduct of a third party, and no act or omission of defendant’s agent causally contributed to the accident. 2. The trial court erred in denying defendant’s motion for directed verdict and its motion for judgment notwithstanding the verdict, as: (a) No act or omission of defendant was the proximate cause of the alleged injuries of the plaintiffs, (b) The evidence established without contradiction that defendant was not guilty of any act or omission or negligent failure to act charged against it by the plaintiffs, (c) The doctrine of “last clear chance” did not apply to this case or these facts. 3. That, in any event, the trial court erred in denying defendant’s motion for a new trial because the verdict of the jury was contrary to the manifest weight of the evidence.

On March 19, 1960, at about 8:30 a. m., plaintiffs, Henry A. Graf and Alvin Green, were passengers in a Ford station wagon driven by defendant’s employee, James Bruns. They were proceeding northbound on highway 77, about seven miles south of Marietta, Oklahoma, when a southbound vehicle came across the highway into the northbound lane and struck the left side of the Ford “broadside.” The scene of the occurrence was just north of a railroad trestle under which the highway passed in an “S” curve fashion. The vehicle in which plaintiffs were passengers was part of a cavalcade show, and it was the lead car. The highway was of cement, with one lane for northbound vehicles and one lane for southbound vehicles. The width of the paved portion of the highway was 24 feet. Adjacent to each driving lane was a gravel shoulder about seven or eight feet wide. The posted speed limit was 35 m. p. h., with a warning to slow down for the “S” curve.

The oncoming southbound vehicle was sighted as the Ford station wagon came from underneath the railroad trestle. The oncoming vehicle, a Pontiac driven by Julia Stevens, was first sighted by plaintiff Graf 700 to 800 feet away and by plaintiff Green 900 to 1,000 feet away, and by the defendant driver, James Bruns, 300 to 400 feet away. The speed of the oncoming southbound Pontiac was estimated at 40 to 45 miles an hour by plaintiff Green, at 60 to 65 miles an hour by Howard Bernard, a passenger in the Pontiac, at 70 miles an hour by defendant driver, James Bruns, and at 70 miles an hour by the investigating police officer.

The speed of defendant’s northbound Ford was variously estimated at 60 to 65 miles an hour by plaintiff Green, at 30 miles an hour by the defendant driver, Bruns, and at 50 miles an hour by the investigating police officer.

The oncoming southbound car was first observed going off the road and on to its own right-hand shoulder four or five times, with the estimated distance of 200 to 300 feet by plaintiff Graf and 150 to 200 feet as stated by plaintiff Green.

The next observed action of the oncoming car was that it slid “broadside” for a distance estimated at 100 to 150 feet by plaintiff Graf and 150 to 200 feet by plaintiff Green. While skidding sideways, the Pontiac struck a guard rail post located 10 feet off the road on its own (west) shoulder, at a time when the distance between the approaching vehicles was between 250 and 300 feet according to plaintiff Green and by plaintiff Graf to be 90 to 100 feet. The Pontiac bounced off the guard rail and came across the highway at a 45° angle, so that the front of the oncoming Pontiac struck the left side of the Ford “broadside.” The distance from the post to the point of collision was estimated by plaintiff Green to be 15 to 20 feet, and the Pontiac was traveling about 45 miles per hour.

The investigating police officer measured 178 feet of tire marks from the southbound Pontiac from the point of the sheared off guard rail post, traveling along the shoulder and turning to the left abruptly at a diagonal across the road. The distance from where these tire marks came back on the paved portion of the highway at the point of impact was 16 feet.

Plaintiff Alvin Green testified that he was sitting in the front seat next to the driver and looking out the front window. As they passed the railroad trestle, “I said to the driver, ‘Look at that car. It is weaving.’ And he said, T see it.’ ” At that time they were about “three blocks, three and a half blocks” or “900 to a thousand feet” from the other car. A few minutes before the occurrence, he had looked at the speedometer and they were going about 60 to 65 miles per hour, and the driver maintained it. He also noticed that just before the railroad trestle there was a posted speed sign, and “it said thirty-five, or slow down to thirty-five or forty miles an hour.” The oncoming car “hit the guard rail and bounced off the guard rail, I would say about a forty-five degree angle, and hit us broadside on our left side.” It was “eight to ten seconds” from the time he first saw the oncoming car until the time of the impact, and at that time the speed of the car in which he was riding was “about sixty to sixty-five,” and they were in the paved portion of “our side of the lane.” Their car rolled “about 150, 200 feet, and then back on its wheels again ... a complete cycle over.” On cross-examination, Green said that the oncoming car must have been going 45 to 50 miles an hour.

The driver, James Bruns, testified that as they approached the area of occurrence, there was a 40 miles per hour sign, and as they approached the sign his speed had been “around fifty or fifty-five miles per hour. When I arrived at the sign I slowed up. The curve took you under the railroad track. ... As I was going into the final portion of the S curve I noticed this Pontiac coming around the curve from the north about 300 to 400 feet away. When I first saw the car, it was traveling at a high rate of speed, having difficulty in negotiating the curve, and the car gradually went off the road on the opposite side of the highway from me, traveled down the shoulder of the road and as it traveled it tended to go into a side skid; eventually the car hit a guard post alongside the road. At that point the car veered off the guard post — to sort of ricochet off the guard post, and came across the highway then directly toward me. It came directly into the side of our car; .... A couple of seconds elapsed from the time this Pontiac struck the post until the collision with my car occurred. Prior to the collision I had slowed down somewhat, by taking my foot off the gas. Also I had moved over in the highway to my right. From the time I first saw the southbound Pontiac until the time of the collision I was never over on the left side of the center of that highway. I was never over the center line. At the point of the impact I was close to having my right hand wheels off the main highway.” On cross-examination, he said, “When I saw this Pontiac go off the highway I took my foot off the gas. I would estimate my speed around thirty miles an hour. From the time I first saw this Pontiac until the time of the collision was around three to five seconds. ... I estimated the speed of the Pontiac at seventy miles an hour prior to the accident.”

Defendant argues that there was an absence of any evidence, together with all reasonable inferences taken therefrom, tending to support the material allegations of plaintiffs’ complaint, and therefore it was the duty of the trial court to grant defendant’s motion for a directed verdict. Defendant’s citations include Oklahoma Natural Gas Co. v. McKee, 121 F2d 583 (1941); Malone v. Chicago Transit Authority, 76 Ill App2d 451, 222 NE2d 93 (1966); and Sjostrom v. Sproule, 34 Ill App2d 338, 181 NE2d 379 (1962).

Defendant relies principally on Malone v. Chicago Transit Authority, where a car made a sudden turn in front of defendant’s bus, in which plaintiff was riding as a passenger. There this court said (p 454):

“There is no testimony from which it can be reasonably inferred that the driver failed to exercise due care. ‘The mere fact that an accident resulting in an injury to a person or in damage to property has occurred does not authorize a presumption or inference that the defendant was negligent.’ ”

Defendant asserts, “The basic question is whether the conduct of defendant’s driver constituted negligence which was a proximate cause of plaintiffs’ alleged injuries. The doctrine of ‘last clear chance’ is not applicable to this case for these facts. The law of Oklahoma has not been pleaded. This doctrine, the tenets of which were disguisedly urged by plaintiffs’ attorney, does not create a greater duty upon a defendant to exercise more than ordinary care commensurate with the sudden circumstances arising in no way from his own conduct. Plaintiffs’ attorney has urged — erroneously we submit — that the defendant had a duty to avoid this accident and this duty arose because defendant had time and opportunity to avert known danger. We submit that even the evidence most favorable to the plaintiffs does not support this contention.”

Defendant reasons from the evidence on distance and speed that “simple mathematics” show “defendant had a mere two seconds to determine with reasonable diligence whether to alter the speed or direction of his own vehicle.” Defendant cites as in point Sjostrom v. Sproule, supra, where the court said (p 345):

“The evidence shows that Scott (defendant), as well as plaintiff, was helpless in the situation, and had no opportunity to escape. Counsel for plaintiff argues that Scott never tried to avoid the accident, never pulled off the road to the gravel shoulder, but the occurrence happened so suddenly he obviously had no time to do so. Certainly the accident was not caused by any negligence on the part of Scott, and accordingly we are convinced that the court should have so held as a matter of law.”

Plaintiffs contend that the evidence discloses that defendant’s driver had ample time (eight to ten seconds) and distance (900 to 1,000 feet) to attempt avoidance of the collision, and the jury properly found him negligent as a matter of fact. Plaintiffs argue that the driver’s conduct and omissions were not consistent with the conduct of a reasonably prudent driver in the circumstances.

The determinative issue here is whether there was sufficient evidence to support the verdicts. If that question is determined affirmatively, then defendant’s motions for a directed verdict and a judgment n. o. v. were without substance.

In our view, the evidence here should be examined in the light of sudden emergency pronouncements. In 65 CJS, Negligence, § 17, it is said (p 603):

“Where one is confronted with a sudden emergency, or with imminent or sudden peril, without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment, or the same degree of care, as would be required of him if he had time for deliberation or reflection. He is required to exercise such care, or choice of conduct, as an ordinarily or reasonably prudent man would exercise when confronted by a like emergency, and if he does so he is not liable for an injury which has resulted from his conduct; and this is true even though another course of conduct would have been more judicious, . . . .”

See, also, 4 ILP, § 108, Acts in Emergencies, where it is said (p 311):

“Thus a driver of a motor vehicle is bound to use care and caution to avoid a collision with an automobile which skids into his lane of travel.
“Where the motorist himself created, or contributed to the creation of, the emergency by his own negligent or reckless conduct, he cannot escape liability on the ground that he was forced to act in an emergency.”

In Dirksmeyer v. Barnes, 2 Ill App2d 496, 119 NE2d 813 (1954), it is said (p 506):

“The existence of a sudden emergency or imminent peril does not excuse the driver of the vehicle from using that degree of care and caution which an ordinary prudent and careful person would have exercised under the like facts, circumstances and emergency, and whether such degree of care and caution was so exercised was for the jury to determine.”

In Rzeszewski v. Barth, 324 Ill App 345, 58 NE2d 269 (1944), this test was stated by the court (p 354):

“Persons who have to act in a sudden emergency are not to be judged in the light of after events, but are to be judged, under all the circumstances of the case, by the standard of what a prudent person would have been likely to do under similar circumstances. . . . Where a person must act in an emergency it is for the jury to say whether he acted with that care and foresight which a reasonably careful and prudent driver would use in like circumstances.”

In this record, there is conflicting evidence as to when the oncoming Pontiac was first sighted, the distance it traveled in a “weaving” fashion, the distance of the sideways slide, and the lapse of time from when the Pontiac was first seen until the impact. There was also a conflict as to the speed of defendant’s automobile, and whether driver Bruns took any action to avoid the collision. However, it is undisputed that on the approach to the “S” curve there was a warning sign, seen by Bruns, for northbound traffic to slow down to 40 m. p. h. Plaintiff Green was positive and unshaken in his testimony that the Ford’s speed was 60 to 65 m. p. h. approaching the “S” curve, and this speed was maintained until the impact, and that Bruns took no action which might have avoided the collision.

After considering all the testimony, together with the reasonable inferences legitimately arising therefrom and viewed in its aspect most favorable to plaintiffs, we are not persuaded, as a matter of law, that there has been a total failure of proof of negligence on the part of the defendant’s driver. We believe fair-minded men might differ as to whether Bruns, by not reducing his speed or by not attempting to pull over to the shoulder of the road adjacent to his lane, after sighting potential trouble ahead, failed to exercise that care which an ordinarily prudent person would have exercised when confronted with a like emergency. Questions which are composed of factors sufficient to cause reasonable men to arrive at different results should not be determined as matters of law. Whether Bruns exercised that care which was proportionate to the danger known to him at that time was a question for the jury. Sommese v. Maling Bros., Inc., 65 Ill App2d 223, 236, 213 NE2d 153 (1965).

We conclude there was sufficient substantial evidence to support the verdicts. Therefore, the trial court properly denied defendant’s motions for a directed verdict or a judgment n. o. v.

Under the law, we cannot disturb the verdict of a jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, plain, indisputable. We do not consider this to be a case in which an opposite conclusion is clearly evident. We find no merit in this contention. 65 Ill App2d 223, 238, 213 NE 2d 153 (1965).

For the reasons given, the judgments of the Circuit Court of Cook County are affirmed.

Affirmed.

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


text:
    Johnnie and Richard Coleman, Plaintiffs-Appellants, v. Chicago Thoroughbred Enterprises, Inc., a Foreign Corporation, Defendant-Appellee.
    Gen. No. 52,621.
    First District, First Division.
    November 25, 1968.

      Edwin M. Berman, Berman and Newman, of Chicago, for appellants.
    John J. Bresingham, Hauseman & Hoolehan, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an action for damages for the loss of plaintiffs’ automobile, which was stolen from defendant’s parking lot. Plaintiffs alleged that the automobile was stolen through the negligence and carelessness of defendant. At the close of plaintiffs’ evidence, the trial court granted defendant’s motion for a directed verdict.

On appeal, plaintiffs’ contention is that the defendant owed plaintiffs a duty of reasonable care in the operation of its parking lot, and that the plaintiffs made out a prima facie case of negligence sufficient to require the trial court’s denial of a directed verdict at the close of plaintiffs’ case. Plaintiffs state that they do not contend that the defendant was an insurer of plaintiffs’ car.

Plaintiffs’ evidence showed that on August 27, 1965, plaintiff Richard Coleman drove plaintiffs’ automobile to defendant’s racetrack, where he attended the races. Plaintiff paid fifty cents to enter the defendant’s general parking area and a second fifty cents to enter a “preferred parking lot,” which was an area close to the racetrack. An attendant told him where to park his car, to lock it and carry the keys with him, which plaintiff did. Upon payment of the second fifty cents, a numbered ticket was placed under the windshield wiper to designate payment of the preferred parking fee, and its purpose was for “counting the house.” The ticket placed upon the windshield contained no conditions of parking nor were any conditions transmitted orally or posted within the lot.

About one and one-half hours after the car was parked, plaintiff Richard Coleman returned to the parking lot and found that the automobile was missing. He immediately reported the loss to a parking lot attendant, and the two then searched the area for the car. After an unsuccessful search, plaintiff reported the loss to the track security officers. When the races were over a complete search was made of the parking area, and plaintiffs’ automobile was not found, and it was never recovered.

Defendant’s parking lot manager (called under section 60) testified there was a complete fence around Arlington Park, with about ten gates. When the park gates were opened, each was manned with collectors and a guard, who stayed there until the collectors left after the fifth race. On August 27, there were about 5,500 parked cars, of which about 1,900 cars were in the preferred area, where there were two collectors and four men who directed people where to park. Many people walked through the preferred parking area to get to the racetrack, and nothing was done to keep them out. He had seen racetrack patrolmen walk around the parking areas. He instructed his men not to go into the cars and to watch to see there was no breaking into the cars.

Defendant’s chief of security (called under section 60) testified that on August 27, 1965, he had eight plainclothes detectives and 23 or 24 guards. One uniformed guard was detailed at each gate where cars came in. There were no men patrolling the preferred parking area on August 27, 1965. In 1965, there were 25 cars reported stolen, of which 21 were located on the racetrack — the people had just misparked their cars. During the year of 1965, there were four cars stolen out of 500,000 parked cars at the racetrack, and about one car per week was reported stolen. He further testified that during the first two weeks of the race meeting in May 1965, he had two patrol vehicles in operation in the parking lots at all times. Each vehicle had two security officers in it, one using binoculars to scan the area looking for persons tampering with automobiles. No car thefts occurred during that time.

Initially we agree with plaintiffs’ contention that plaintiff Richard Coleman was a business invitee of the defendant and, as such, had the right to rely on the defendant using ordinary care in the operation of its parking lot; and that the same duty that applies to the person of a business invitee by implication applies to the property of the business invitee when lawfully on the owner’s premises. Plaintiffs cite Geraghty v. Burr Oak Lanes, Inc., 5 Ill2d 153, 125 NE2d 47 (1955), where the court said (p 157):

“Toward an invitee the owner of premises must use reasonable care and caution to keep the premises reasonably safe for use by such invitee. To be upon premises by an implied invitation means that the person is there for a purpose connected with the business in which the owner of the premises is engaged.
“Under the facts and circumstances in this case, the defendant owed plaintiff, who was a business invitee, the duty to exercise ordinary care to have the parking lot in a reasonably safe condition to use in a manner consistent with the purpose of the invitation, or at least not to lead him into a dangerous trap, or expose him to an unreasonable risk, but to give him adequate and timely notice and warning of any latent or concealed perils, which were known to defendant but not to plaintiff. An owner in occupation of the premises violates his duty to an invitee when he negligently allows such conditions to exist on the property which imperil the safety of persons upon the premises.”

And at page 158:

“The law does not charge one with anticipating dangers and negligent conditions, but he may assume that others have done their duty to give proper warning of hidden dangers, . . . and apart from obvious dangers the plaintiff, as an invitee, could assume that the premises were reasonably safe for the use to which defendant had put them.”

Plaintiffs argue that while the Geraghty case was concerned with personal injuries, there is no reason that the same law which would apply to the person would not apply to his property, and in this case the defendant did not warn the plaintiff that automobiles had been stolen from its parking lot. Plaintiffs also argue that defendant’s employees took control of the search for the car and carried it out in a negligent fashion, in that they waited three hours before initiating the general search and did not notify the guards at the main gate to watch for the car.

Considering our view of the matter of the relationship here and the relative rights and duties which flowed therefrom, a review of the cited authorities is unnecessary.

Both sides cite Wall v. Airport Parking Co. of Chicago, 88 Ill App2d 108, 232 NE2d 38 (1967), and we think it supplies the guidelines to be used here. There it is said (P H2):

“The ‘parking lot cases,’ as they are commonly known, fall generally into three categories: (1) where an attendant simply collects a parking fee and designates a place to park, and the automobile operator retains control of the automobile, locking it or not as he wishes; (2) where an attendant collects a parking fee, assumes control of the automobile and parks it, moves it when the key is left at the request of the attendant and a ticket is issued to the automobile operator as a means of identifying the automobile upon redelivery; and (3) where the status of the parties falls in between the above two categories and is controlled by the nature of the circumstances within which the parties deal. The first class of cases generally is held to be a lease or a license, whereas the second category is generally held to be a bailment. See 131 ALE 1175, et seq.; Lewis v. Ebersole, 244 Ala 200, 12 So2d 543. Perhaps the case most extensively cited in relation to the third category is Osborn v. Cline, 263 NY 434, 189 NE 483, wherein the court stated that the circumstances of each case must be considered in arriving at the nature of the relationship between a parking lot operator and an automobile operator who uses the lot for a fee.”

We consider the relationship established by the evidence of plaintiffs to be a lease or a license, and it was incumbent upon plaintiffs to prove in what manner defendant parking lot operator was negligent, or that it had assumed the duty to safeguard the automobile.

In Williston on Contracts, 3rd edition, 1967, Vol 9, § 1065, it is said:

“One who merely lets automobile parking privileges is not a bailee of the parked car and, consequently, is under no duty to guard against loss by theft or fire since it is generally held that to be a bailee, the parking lot operator or his agent should have an independent and temporarily exclusive possession of the automobile with some degree of control over it.”

Plaintiffs’ evidence shows that plaintiff Richard Coleman had the custody of the car when he entered the grounds of the defendant and retained the control of it when he parked. An attendant told him to lock the car and carry the keys with him, which plaintiff did. He never surrendered the possession or control to the defendant or any of its agents, and the defendant never assumed any control whatever over it. There was no evidence to show an express or implied contract on the part of defendant to maintain a watch against the theft of the car or to show a bailor-bailee relationship between the parties. There was no proof here, nor do the circumstances indicate, that defendant’s attendants were charged with the duty of looking after plaintiffs’ car after they had directed plaintiff to a space in which to leave the car.

We are not persuaded that the conduct of defendant’s employees, after being notified the car was stolen, operated to change the original “lease or a license” relationship, or showed that defendant was negligent in any manner with respect to the loss of plaintiffs’ automobile. In Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954), the court, though holding that the intervention of a criminal act is in certain instances to be regarded as a foreseeable event which does not interrupt the relation of cause and effect between negligence and injury, stated (p 79):

“Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, anymore than a particular act by this or that individual.”

In conclusion, we believe the evidence showed that defendant assumed no burden to safeguard plaintiffs’ vehicle, and the subsequent alleged negligent conduct on the part of defendant did not violate or breach any duty owed to plaintiffs by the defendant.

For the reasons given, we hold that the trial court properly directed a verdict for the defendant at the close of plaintiffs’ case. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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