author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Edgar Chaffin, Defendant-Appellee.
    Gen. No. 52,958.
    First District, Third Division.
    May 22, 1969.
    Rehearing denied December 18, 1969.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    Coghlan, McGloon, Joyce and Murphy, of Chicago (James L. Coghlan and William J. Nellis, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Edgar Chaffin, was indicted and tried for the murder of Thomas Westbrook. During Chaffin’s jury trial the State’s motion for a mistrial was granted over his objection. When his case, which was reassigned to. the judge from whom this appeal is taken, was called for trial he asked to be discharged on the ground that his trial had been improperly terminated, that he had been in jeopardy and that this barred his prosecution. Ill Rev Stats 1967, c 38, §3-4 (a) (3). The court granted his petition and ordered him discharged. It is from this order that the State appeals.

The testimony heard at the abbreviated trial disclosed that in the early morning of February 25, 1967, a friend who had been driving two men home from work asked Chaffin to drive them the remainder of the way. Chaffin agreed and the men, James Slaj chert and Donald Gardner, entered his car. They lived in Blue Island, as did West-brook. Chaffin told them that Westbrook had cheated him, that he was going to get even and asked Slaj chert where Westbrook’s house was located. He displayed a gun and said he intended to kill Westbrook. They drove to Westbrook’s house but it was dark and they left.

As they rode on Slaj chert noticed two girls in a restaurant whom he knew, and the auto stopped so that he could speak to them. Westbrook was in the restaurant and Slaj chert reported this to Chaffin. Chaffin told Slajchert to send Westbrook out on the pretense that he would pay him some money he owed him. Slaj chert re-entered the restaurant and delivered the message. Westbrook left the restaurant and Slaj chert remained inside. West-brook approached the car saying that he heard Chaffin had some money for him. Chaffin said that he had, pulled his gun and shot him three times. Chaffin and Gardner drove on but Gardner, who had met Chaffin and Slajchert the first time that night, got out of the car a block or two away.

Westbrook staggered back into the restaurant and collapsed on the floor. Police officers arrived in a few minutes and spoke to him briefly. After speaking to him they approached Slaj chert who was sitting in a booth. Westbrook was taken to a hospital where he died two days later.

In addition to this testimony, certain other background information will be helpful in understanding the circumstances which led to the declaration of a mistrial:

1. Chaffin and Slaj chert were indicted; Gardner was not. The assistant State’s attorney informed the jurors that Slajchert and Gardner would testify for the State and that neither would be prosecuted.

2. When the police spoke to Westbrook in the restaurant he told them that he had been shot by Chaffin. He said that they should ask Slaj chert about it — that Slaj chert was sitting in one of the booths.

3. Shortly after he arrived at the hospital West-brook gave the police a statement which was reduced to writing and signed by him. The written statement repeated in greater detail what he had said at the restaurant.

4. Before the trial started Chaffin’s attorney moved to suppress the inculpating statements made by Westbrook. He also requested an order upon the State not to offer the statements in evidence or to refer to them during the trial. The statements did not qualify as dying declarations and the State did not object to the motion or the order.

5. In his opening statement Chaffin’s attorney told the jury that Chaffin did not shoot Westbrook. He said: “I am not saying that Gardner is the one who shot the deceased. I do not know. I believe the evidence will disclose that this boy [Chaffin] did not and that Gardner knows who did . . . .”

After Gardner had testified for the State, Slaj chert was called to the stand. During his cross-examination the following took place:

Chaffin’s attorney: “Officer Pizza came into that restaurant and he had a conversation with Thomas Westbrook, did he not?”
Slaj chert: “I don’t remember.”
Chaffin’s attorney: “And then he came over to the table and said ‘Where is Slaj chert’ or ‘Who is Slajchert?’ did he not?”
Slaj chert: “I don’t remember whether it was asked by Sergeant Pizza or not. I think it was another officer.”
Chaffin’s attorney: “A police officer came up to the table and said, ‘Where is Slajchert’ did he not?”
Slajchert: “He said, ‘Who is Slaj chert ?’”
Chaffin’s attorney: “‘Who is Slaj chert’ and you identified yourself then for the first time, is that right?”
Slajchert: “Yes.”

The State did not object to the cross-examination but shortly thereafter, in chambers, moved for a mistrial. The State contended that the questions and answers raised an inference that Westbrook told the officer that Slaj chert shot him. In the alternative, the State argued that it should be permitted to rebut the inference by the introduction of Westbrook’s signed statement. The trial court agreed that without some explanation the inference to be drawn from the questioning was that Slajchert did the shooting. The court said, “Under these circumstances it looks like he [Westbrook] said, ‘There is the guy that did it, Slaj chert.’ ”

The court inquired whether there was some way to circumvent the misleading inference without introducing the signed statement. It suggested that the inference would be eliminated if both sides would agree to put in evidence what Westbrook said at the restaurant. The defendant’s attorney said he would agree to the following : “The cops came in and said to Westbrook, ‘What happened’ and he said, ‘Ask Jim Slaj chert, he knows about it.’ ” The attorney also offered to have the jury instructed that the officer asked, “What happened?” or “Why did he shoot you?” and Westbrook replied, “Ask Jim Slaj chert.” The State objected and the court agreed that neither suggestion obviated the inference.

Finally, after much debating by the attorneys, the court said that there was no point in belaboring the matter. The defendant’s attorney then said that he would stipulate that: Slajchert did not shoot Westbrook, the defense did not contend that he did and did not imply in any manner that Westbrook said that Slajchert shot him. The prosecutor replied that he could not enter into any stipulation because the harm had been done. The court stated that the parties were at an impasse and that a mistrial would be declared.

The judge and attorneys returned to the courtroom. There the defendant’s attorney objected to the mistrial and said he would stipulate to everything that was said by Westbrook in the restaurant. After this statement, the attorneys continued to argue but the court interrupted, stating, “I indicated what my decision will be and there is no reason for any further insults between counsel.” The jury was called to the courtroom, one of the jurors was withdrawn and a mistrial declared.

The opening statement of Chaffin’s attorney obviously implied that if Gardner did not kill Westbrook, Slajchert did. This, followed by the suggestion that police officers talked to the mortally wounded Westbrook and then immediately asked, “Who is Slajchert?” intensified the implication. The questions asked by Chaffin’s attorney were unfair and unnecessary. They were unfair because the attorney, having suppressed Westbrook’s oral statement, not only knew that Westbrook had accused Chaffin of shooting him but also knew that the State would be unable to refute the inaccurate inference which could be drawn from his questions. They were unnecessary because their only legitimate probative value was to show that Slajchert remained silent until accosted by the police. This could have been done without referring to the conversation between Westbrook and the police or by asking Slajchert questions which carried no accusatory imputation.

The State’s case was greatly damaged through no fault of its own and a mistrial appeared to be in order. The trial court made a substantial effort to resolve the difficulty by repeatedly urging the attorneys to reach an agreement which would do justice to both sides, but they refused to cooperate. Chaffin’s attorney was determined to keep his advantage and would only stipulate to a version of the Westbrook conversation which retained the unfavorable inference. The assistant State’s attorney was equally adamant; he maintained that the admission into evidence of Westbrook’s signed statement was the only way to remove the inference. The court tried to evolve a compromise centering around the oral statement. When no compromise was forthcoming the court observed that further discussion was useless. At this juncture the defense attorney altered his position decidedly. When he saw that the court was ready to declare a mistrial he made two proposals either of which would have remedied the damage to the State’s case. The first was to stipulate that Slajchert did not shoot Westbrook and the second was to admit into evidence the entire oral statement West-brook made to the police. The State rejected both suggestions.

A court may declare a mistrial when there is manifest necessity for such an act or the ends of public justice would otherwise be defeated. The decision to declare a mistrial rests within the discretion of the trial court and is not subject to review unless there has been an abuse of that discretion. United States v. Perez, 9 Wheat 579, 6 L Ed 165 (1824); People v. Laws, 29 Ill2d 221, 193 NE2d 806 (1963); People v. Thomas, 15 Ill2d 344, 155 NE2d 16 (1958).

Section 10, article II of the Constitution of Elinois states that: “No person shall ... be twice put in jeopardy for the same offense.” The fifth amendment to the Constitution of the United States provides that: “. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . .” In People v. Friason, 22 Ill2d 563, 177 NE2d 230 (1961) the court said:

“While a wide variety of circumstances have been held to justify a mistrial without giving rise to a claim of double jeopardy . . . the constitutional guaranty against double jeopardy is a substantial one deeply ingrained in Anglo-American jurisprudence .... The many cases denying a plea of double jeopardy after the discharge of a prior jury all appear to find their basis in the broad rule of manifest necessity and public justice announced in United States v. Perez, 9 Wheat 579 .... It must be noted that the United States Supreme Court, in stating the broad and lasting rule in the Perez case, also admonished trial courts that ‘the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes 9 99

In the instant case the ends of public justice would have required a mistrial if the situation which prevailed at the time the State’s motion was made remained unchanged; but after the defense had made its proposals there no longer was a manifest necessity for a mistrial. If either proposal had been accepted the unjust inference would have been eliminated and the harm to the State’s case undone.

The prosecutor wanted no part of either proposal. He wanted the signed statement in evidence or a mistrial, and would settle for nothing else. The signed statement differed little from the oral one — in both Westbrook said Chaffin shot him. If the signed statement would have removed the inference, the oral one would have done so. Similarly, the defense stipulation that Slajchert did not shoot Westbrook would have dispelled the inference that he had done so.

The prosecutor knew that the court would not admit the signed statement into evidence and his insistence upon its admission as the only possible cure for the objectionable inference makes it appear that what he really wanted was a mistrial. This conclusion is further supported by the fact that he had made prior requests for a mistrial on the ground that the credibility of his witnesses had been destroyed by improper cross-examination. In obtaining the mistrial the State got what it wanted, a chance to retry the case before a new jury. A mistrial, however, cannot be granted to afford the State a second chance or to protect it from the unexpected weakness of its case or the skill of its adversary.

The State maintains that the mistrial was granted to protect the defendant not the State. The court had expressed concern about the rights of the defendant and would not admit the signed statement for this reason. (Although the court was agreeable to the admission of the oral statement which was equally harmful to the defendant, the explanation for this inconsistency lies in the court’s having been informed of the content of the signed statement but not of the oral one.) But the mistrial was not declared to safeguard the defendant; it was declared upon the State’s motion and at the State’s insistence. In ordering the mistrial over the defendant’s vehement objection the court acceded to the State’s demand.

Finally, the State contends that the mistrial was justified by the defendant’s improper cross-examination of the accomplices, Gardner and Slaj chert. The cross-examination of these witnesses was rigorous but the accused in a criminal prosecution is permitted broad latitude in cross-examining State’s witnesses (People v. Rainford, 58 Ill App2d 312, 208 NE2d 314 (1965)), and this is particularly so when the witnesses are accomplices. People v. Baker, 16 Ill2d 364, 158 NE2d 1 (1959); People v. Durand, 321 Ill 526, 152 NE 569 (1926). There were some improprieties in the cross-examination — the questioning of Gardner about beatings unrelated to the instant case and the questioning of both witnesses about wearing beards prior to the trial — but these excesses were not sufficient to warrant a mistrial. Cf. People v. Thomas, 15 Ill2d 344, 155 NE2d 16 (1958).

The trial court abused its discretion in granting a mistrial and the decision of the motion judge, finding that the defendant’s trial had been improperly terminated, is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Richard M. Van Dyke, Plaintiff-Appellant, v. Board of Education of School District No. 57, Cook County, Illinois, Defendant-Appellee.
    Gen. No. 53,021.
    First District, First Division.
    June 6, 1969.

      Ligtenberg, Goebel & DeJong, of Chicago (John Ligtenberg, Andrew J. Leahy and Mary Lee Leahy, of counsel), for appellant.
    Ancel, Stonesifer & Glink, of Chicago (Louis Ancel, Marvin J. Glink and Joseph A. Murphy, of counsel), for appellee.
   MR. JUSTICE MURPHY

This is an administrative review action. Plaintiff seeks the reversal of an administrative decision of the defendant Board of Education, which transferred plaintiff from the position of principal to that of classroom teacher at the uniform salary for teachers in the classification to which he was transferred. On defendant’s motion the trial court struck plaintiff’s amended complaint and dismissed the suit.

On appeal plaintiff contends that (1) the defendant Board of Education’s attempt to transfer plaintiff from the position of principal to that of classroom teacher was a violation of the Board’s prior voluntary agreement to limit its power to transfer; and (2) the Board’s transfer of plaintiff at a reduction in salary because plaintiff refused to resign was a violation of plaintiff’s tenure rights, and the transfer was in reality a dismissal or removal requiring compliance by the School Board with the Illinois Teacher Tenure Law (Ill Rev Stats, c 122, §§ 24-11 to 24-16).

On May 18, 1966, plaintiff commenced the instant administrative review proceedings. In substance, plaintiff’s amended complaint alleged in detail the following: Plaintiff began employment as a principal in defendant’s schools in the 1963-64 school year. He continued in that position through 1964-65 and into the 1965-66 school year, when the matters in dispute arose. On January 21, 1966, the Superintendent of Schools asked plaintiff to resign from the school district and threatened plaintiff that if he did not resign, he would assign plaintiff or have plaintiff assigned as a classroom teacher; on February 25, 1966, the defendant Board of Education voted to reassign plaintiff from the position of principal to the position of classroom teacher for the 1966-67 school year, with a salary reduction from $10,800 per year to $9,000 per year, “as determined by placement on the teachers’ 1966/7 salary schedule applicable to all certificated employees of the district.”

On March 5, 1966, plaintiff notified the defendant that he considered the action of the Board to be a dismissal and requested a bill of particulars and a public hearing. A hearing was conducted and on April 18, 1966, the defendant Board adopted a resolution which included, “This Board therefore holds and it is its decision that the provisions of The School Code have been fully complied with and that the resolution of this Board of Education of February 25, 1966 is reaffirmed and it is its judgment that Richard Van Dyke be transferred to the position of teacher and assigned to such teaching duties as the Superintendent shall deem proper with due regard to Mr. Van Dyke’s qualifications.”

The amended complaint also alleged that plaintiff held written contracts with the Board for all the years of his employment, and “pursuant to the terms of the written contracts entered into by the parties, the plaintiff was employed as a principal in and for said school district,” and served as a principal and had no other duties. The amended complaint charged that the action of the Board in reassigning him “was not made in good faith but was arbitrary, capricious, unreasonable and deliberately calculated to support the unlawful efforts of the Superintendent of Schools in seeking to remove the plaintiff in violation of the Teacher Tenure Act.”

The defendant Board moved to dismiss plaintiff’s amended complaint and to dismiss the action, asserting that plaintiff’s claim or demand was barred by reason of Article 24-11 of the School Code (Ill Rev Stats 1965, c 122), which section provides inter alia:

“‘[Tjeacher’ means any or all school district employees regularly required to be certified under laws relating to the certification of teachers .... This section and succeeding sections do not modify any ■ existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided. Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals.”

Defendant’s motion to dismiss further stated that “any public hearing furnished to the plaintiff was strictly gratuitous and not required by statute,” and that plaintiff was not entitled to any administrative review of the final decision of the Board of Education “since this was not a tenure dismissal action on the part of the Board of Education, but merely a transfer and therefore not reviewable under the provisions of the administrative review act.”

On January 23, 1968, the trial court entered an order which allowed defendant’s motion and dismissed the action. This is the order from which plaintiff appeals.

On appeal plaintiff concedes that boards of education in Elinois have the power to transfer employees from one position to another but asserts that this power is not absolute, and there are at least three possible limitations which might restrict this power: (1) where the person is not qualified to assume the position to which he is assigned; (2) where the board exercises its power in bad faith; and (3) where the board has voluntarily agreed to limit its power to transfer. Plaintiff states that limitation (1) is not involved in this case.

Initially, and as to plaintiff’s assertion that the Board voluntarily limited its power to transfer plaintiff, we note that plaintiff’s amended complaint does not include or set forth the “written contracts” or terms thereof, on which plaintiff maintains that he was employed as a principal. Plaintiff’s brief states: “It should be further pointed out that these contracts are not part of the record because of the peculiar posture in which this case is presented to the Appellate Court. The contracts with the specific language in it are part of the record which was made before the board of education and which the board of education would normally have been required to file pursuant to the provisions of the Administrative Review Act. However, the sustaining of defendant’s motions to dismiss has prevented that record from being filed.”

Plaintiff’s explanation as to why the alleged contracts or terms thereof are not a part of the instant record is not sufficient to empower this court to consider or interpret the alleged contracts by which plaintiff argues that the Board voluntarily agreed to limit its powers to transfer. Therefore, we have not considered this contention.

Considered next is plaintiff’s basic contention that the Board’s “transfer of plaintiff at a reduction in salary because plaintiff refused to resign was a violation of plaintiff’s tenure rights.” Plaintiff submits that his complaint amply shows that the action of the Board in transferring him and reducing his salary “was not bona fide but was in the nature of chicanery or subterfuge designed to subvert the provisions of the Teacher Tenure Law.” Plaintiff argues that “a board of education has a duty to exercise its discretion in good faith and when that is challenged by an injured party he should be allowed to present that question either by way of mandamus or as the instant plaintiff has done by filing a suit under the Administrative Review Act.”

Plaintiff’s authorities in support of this contention include Lester v. Board of Education, 87 Ill App2d 269, 280, 230 NE2d 893 (1967):

“[W]e believe that a person serving as superintendent, principal and teacher, or in any two of such positions, may be assigned by the board to any one of the positions he is qualified to fill, provided such action by the board is bona fide and not in the nature of chicanery or subterfuge designed to subvert the provisions of the Teacher Tenure Law.”

Also, Wilson v. Board of Education of School Dist. No. 126, 327 Ill App 338, 64 NE2d 380 (1945), where it was concluded that the assignment of a teacher to a position of lower grade at a lower salary, without a hearing or reasons, constituted a removal and a violation of the teacher’s tenure rights. There the court said (p 341):

“It has been repeatedly held that the exercise of discretionary powers under civil service and under teachers tenure statutes must be in good faith and based on actual conditions, and the courts do not approve the discontinuance or abolition of a position, or transfer, or reduction of salary where the real motive is to remove the employee from his position, without justification.”

We note that the Wilson case was reversed by the Supreme Court (394 Ill 197, 68 NE2d 257) because the complaint failed to state that the plaintiff had been employed for the required probationary period of two full years, an essential element to bring a teacher within the provisions of the Teacher Tenure Law. There the court said (p 201):

“The complaint in this case fails to show the appellee has brought himself within the provisions of the Teachers Tenure Law, and hence he was not entitled to a writ of mandamus against the school board and its president and members.”

Defendant contends that the transfer of plaintiff from principal to teacher was an exercise of an express power of the defendant Board and was done in full compliance with the School Code and section 24-11, which grants teachers “contractual continued service” following their successful probationary period. Defendant concedes this section limits the Board’s right to dismiss a teacher summarily but it does not affect defendant’s right to transfer teachers.

Defendant states that plaintiff’s argument that once he was appointed a principal, he was entitled to remain a principal, is contrary to the express provisions of section 24-11 of the School Code and the purpose of the Teacher Tenure Law as construed in Donahoo v. Board of Education, 413 Ill 422, 109 NE2d 787 (1952). In Donahoo, it is said (pp 425-26):

“The Teacher Tenure Law was enacted primarily for the protection of Illinois teachers who, prior to its enactment in 1941, served at the pleasure of the boards of directors or education. Its object was to improve the Illinois school system by assuring teachers of experience and ability a continuous service and a rehiring based upon merit rather than failure to rehire upon reasons that are political, partisan or capricious. . . . The province of the courts is not to legislate but to interpret. We cannot read out of the statute words which the legislature has placed therein any more than we can read into the statute words which are not within the manifest intention of the legislature as determined by the statute itself.”

Defendant maintains that the Teacher Tenure Act is part of a carefully drawn code, and the right of a board to transfer a teacher is left to the complete legislative discretion of the board for it is the one to decide how best to operate its schools. (Scofield v. Board of Education, 411 Ill 11, 20, 103 NE2d 640 (1952).) Defendant argues that the limitations on the part of the board to maintain a thorough and efficient school system in its district must be strictly construed. Cited in support is Anderson v. Board of Education, 390 Ill 412, 61 NE2d 562 (1945), where the court stated (p 422) :

“A statute creating a new liability must be strictly construed in favor of persons sought to be subjected to its operation. . . . The Teacher Tenure Law clearly creates a new liability where none would otherwise exist; it makes a contract for the parties by operation of the law, where otherwise none would exist. Therefore, under this rule above quoted, the word ‘year’ should be given a strict construction and its meaning not extended beyond the ordinary meaning of the word.”

Defendant asserts that the plain ordinary meaning of the School Code is that neither section 24-11 nor the subsequent sections dealing with dismissal modify the power of the Board to transfer teachers except where the salary is not uniformly reduced or reasonably classified. Defendant argues that plaintiff’s salary was reduced to the same as that received by other classroom teachers in his classification, and as the salary limitations were met, he was not entitled to a hearing as in the case of a removal or dismissal.

Defendant’s motion to dismiss only admitted the facts which were well pleaded in the complaint and not the plaintiff’s conclusions or inferences of bad faith or fraud. Adler v. Northern Ill. Gas Co., 57 Ill App2d 210, 219, 206 NE2d 816 (1965).

After examining the arguments and the authorities offered by both sides, we believe the guidelines to be used in considering whether plaintiff’s complaint is “substantially insufficient in law” are fairly stated in Lester v. Board of Education, 87 Ill App2d 269, 230 NE 2d 893. Under section 24-11 a principal does not acquire tenure as a principal but does acquire tenure as a certified employee of a school district. A school board may transfer a principal to a teaching position at a reduced salary “based upon some reasonable classification,” provided the action is bona fide and not “in the nature of chicanery or subterfuge designed to subvert the provisions of the Teacher Tenure Law.”

Plaintiff’s amended complaint shows that these guidelines were met, subject to plaintiff’s charge that the transfer was not made in “good faith” and “deliberately calculated to support the unlawful efforts of the Superintendent of Schools in seeking to remove plaintiff in violation of the Teacher Tenure Act.”

In our opinion, and subject to constitutional and statutory provisions, school boards must be allowed flexibility consonant with the purposes of the Teacher Tenure Law in the transfer of its certificated personnel. (87 Ill App2d 269, 281, 230 NE2d 893.) Undoubtedly differences frequently arise between school personnel, which result in reassignments or transfers. However, we do not believe that an instance such as that alleged in the instant case is sufficient to conclude that the transfer of plaintiff to a teaching assignment by the defendant Board of Education was not bona fide and required compliance with section 24-12, which provides for “removal or dismissal of teachers in contractual continued service.”

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sheldon Wicks and Lawrence Hayes, Defendants-Appellants.
    Gen. Nos. 51,666, 51,667.
    First District, Fourth Division.
    September 17, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendants were tried by a jury and convicted of robbery. Judgment was entered and defendants were sentenced for a term of not less than ten nor more than thirty years.

Defendants jointly raise three questions on appeal:

(1) the court invaded the province of the jury by giving an instruction which amounted to directing the verdict;

(2) the assigning judge improperly sat as a court of appeal to review and overrule an order of the trial judge severing the causes of the two defendants; and (3) the prosecutor’s argument was prejudicial and deprived the defendants of a fair trial. Defendant Wicks raises two further points on appeal: (1) the lineup in which he was identified by the complaining witness was so unnecessarily suggestive and conducive to mistaken identity as to deny due process of law; and (2) he is entitled to discharge because he was held in custody for 120 days without trial.

On May 19,1965, five armed men entered the offices of Maywood Finance Corporation in Maywood, Illinois, and robbed it of an undisclosed sum of money. The defendants were identified by the manager as two of the participants in the robbery.

OPINION

The first point urged on appeal, by both defendants, is that they were unfairly prejudiced when the trial judge gave the following instruction:

The court instructs the jury that the positive identification of one witness who had a favorable opportunity for observation is sufficient to support a conviction for armed robbery.

The language of this instruction was obviously taken from the opinion in People v. Washington, 26 Ill2d 207, 210, 186 NE2d 259, and cases cited therein. It is singularly appropriate to a reviewing court because that court assumes that the jury has observed the witness, has considered all the evidence in the case and then has been convinced of defendants’ guilt beyond a reasonable doubt. As stated in People v. Harper, 36 Ill2d 398, 404, 223 NE2d 841:

The State has cited no case, and we have found none, that approves an instruction in the language given here. The fact that certain language is appropriate in the context of an opinion does not necessarily justify its use in an instruction without further explanation.

We find that it was reversible error to give the aforementioned instruction in the instant case since the scope of the jury function was restricted thereby. The instruction could reasonably have been construed by the jury as a statement that the court was satisfied that one witness had a favorable opportunity for observation, and had made a positive identification of defendant. Both of these are factual conclusions which should have been left to the jury’s determination from the evidence.

The State argues that the error was waived by the failure of defense counsel to object to the instruction. Defendant counters by referring to Supreme Court Rule 451 (Ill Rev Stats 1967, c 110A, § 451):

In criminal cases instructions to the jury shall be tendered, settled and given in accordance with section 67 of the Civil Practice Act, but substantial defects are not waived by failure to make timely objection thereto if the interests of justice require.

We find that the defect in the instruction was substantial and that the interests of justice require that the failure to object is not a waiver in the instant case.

The second point raised by both appellants is that their cases were improperly joined. Defendants point out that Judge Friedlund first severed the causes and then refused the State’s motion to rejoin them. After Hayes’ first trial resulted in a mistrial, his case was sent back to the assigning judge for reassignment; the Wicks case remained with Judge Friedlund. The assigning judge, Judge Napoli, however, entered an order rejoining the cases and then reassigned them both to Judge Power. Defendants argue that Judge Napoli had no power to withdraw the Wicks case from Judge Friedlund and to overrule his decision to have the cases tried separately.

The decision to sever is within the sound judicial discretion of the trial court. People v. Wilson, 29 Ill2d 82, 91, 193 NE2d 444. Since we are remanding both cases for a new trial, defendants can move for a severance before the trial court.

The third argument made jointly by defendants is that they were prejudiced by the closing argument of the prosecutor. During his summation the prosecutor stood before the jury holding a shotgun in his hands and told the jury to stare at him while three minutes passed. We find this demonstration to be prejudicial for two reasons. First, the prosecutor did not adequately recreate the conditions of the robbery. Complaining witness testified that defendant Hayes had the shotgun and asked for the money; that defendant Wicks, who had a pistol, vaulted over the counter, took money from a drawer, led complaining witness to a vault which he opened and then escorted him and a coemployee to the work room. He further testified that the entire robbery lasted three minutes. It is apparent that complaining witness was not facing a man with a shotgun for three minutes. Secondly, the jury could have been unduly prejudiced by having to face a shotgun for three minutes.

Defendant Wicks argues that the lineup from which he was identified by Harrison, the complaining witness, was so unnecessarily suggestive and conducive to mistaken identity that all identification testimony of Harrison should be excluded. Stovall v. Denno, 388 US 293, 302; Gilbert v. California, 388 US 263, 272-3; People v. Nelson, 40 Ill2d 146, 238 NE2d 378. He contends that the unfair suggestion arises from the fact that one of the robbers was wearing a black trench coat during the commission of the crime and that he (Wicks) was the only person in the lineup wearing a black trench coat. We do not feel that Wicks’ attire emphasized him in such a manner as to fatally taint the identification. We are reinforced in our decision by the testimony of Harrison that he saw Wicks come into the station with a group of ten or twelve people and that “[it] is not true that I identified the trench coat.”

Wicks also argues that he is entitled to a discharge because he was not brought to trial within the 120-day period specified by statute. He argues that he made no requests for continuances from December 1, 1965, until April 26, 1966, when trial commenced; or, alternatively, that he made no requests for continuance from December 27,1965, until trial on April 26,1966.

At a proceeding on December 1, 1965, Wicks’ court appointed counsel withdrew from the case with the defendant’s consent, and the court appointed a different attorney for defendant. Since it is clear that Wicks desired the assistance of counsel and that he desired the withdrawal of his initial counsel, it is obvious that he needed time to confer with his newly appointed attorney and that, therefore, he was not prepared to go to trial on December 1, 1965. Thus Wicks must be deemed to have consented to the continuance of the cause to December 27, 1965, and the counting of the 120-day period begins then.

Section 103-5 (a) of the Code of Criminal Procedure is silent as to how the 120 days shall be computed and thus it is necessary to utilize the method set forth in the statute on the Construction of Statutes, Ill Rev Stats 1965, c 131, § 1.11, which provides in pertinent part:

Computation of the number of days between December 27, 1965, and April 26, 1966, excluding December 27 and including April 26, reveals that April 26 was the 120th day. Defendant was brought to trial on that day and thus the statutory requirement was met. People v. Walton, 110 Ill App2d 115, 249 NE2d 170.

The time within which any Act provided by law is to be done shall be computed by excluding the first day and including the last ....

For the reasons set forth above, the judgments are reversed and this cause is remanded to the Circuit Court for a new trial.

Reversed and remanded for a new trial.

ENGLISH and McNAMARA, JJ., concur.

       Ill Rev Stats 1965, c 38, § 103-5 (a):
      Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.


author: STOUDER, P. J.

text:
    Delores A. Pugh and Howard Pugh, Her Husband, Plaintiffs-Appellants, v. Henry S. Swiontek, M.D., Lawrence J. Sykora, M.D., and Berwyn Hospital Association, a Corporation, d/b/a MacNeal Memorial Hospital, Defendants-Appellees.
    Gen. No. 52,557.
    First District.
    September 22, 1969.

      B. John Mix, Jr., John E. W. Timm, and Andre Mandeville, of Chicago (B. John Mix, Jr., of counsel), for appellants.

      Clausen, Hirsh, Miller & Gorman, of Chicago (John R. Caffrey and James T. Ferrini, of counsel), for appellees.
   STOUDER, P. J.

Plaintiff-Appellant, Delores Pugh, commenced this action in the Circuit Court of Cook County seeking to recover damages for the alleged medical malpractice of physicians Henry S. Swiontek and Lawrence J. Sykora, Defendants-Appellees. At the close of the plaintiff’s evidence in a trial before a jury the court, pursuant to motion of defendants, directed the verdict in favor of defendants. From the judgment entered thereon plaintiff has appealed.

Since the principal issue is the sufficiency of the evidence to warrant the submission of the issues to the jury, a summary of the evidence is required.

Delores Pugh first came under the care of Dr. Swiontek in 1957. He delivered her third child in September, 1958, and her fourth child on August 19, 1959. Following the birth of her child on August 19, 1959, she experienced post-delivery discharge for six weeks which thereafter stopped for two weeks and then started again for two more weeks. Thereafter, she had what was to all appearances a menstruation period on December 1, 1959; that incident of bleeding differed from her ordinary periods only in that its duration was longer, nine days. During the night of December 12 or 13, she was awakened by sharp abdominal pains and the onset of bleeding. She testified that she also felt nauseous and dizzy. Her condition became worse and the symptoms so severe that she was taken by her husband to MacNeal Memorial Hospital on December 31, having unsuccessfully tried to get in touch with Dr. Swiontek. She was examined at the hospital by a resident physician to whom she related her history and symptoms. She was given shots and returned home. On January 2, she saw Dr. Swiontek who examined her and after repeated calls during the week, she was hospitalized commencing on January 5,1960. Dr. Swiontek, a general practitioner, called in Dr. Sykora, a specialist in obstetrics and gynecology, as a consultant, January 6, 1960. The doctors decided to perform a dilation curettage (D & C) for diagnostic purposes, the results thereof being negative so far as indicating any cause of plaintiff’s condition. Plaintiff’s condition of ill health after her release from the hospital on January 10 continued and she was again hospitalized on January 17, 1960, and she was again examined and treated by defendants. During this period a lump or mass was observed on one side of her abdomen, which decreased while she was in the hospital, and she was discharged on January 26,1960. About one week later, plaintiff went to Chicago Lying-In Hospital, where after examinations and tests (including pregnancy tests) a laparotomy was performed by Dr. Davis. The operation revealed a mass on each side consisting of blood clots. The masses appeared to be the result of bleeding in the abdominal cavity. He also found a mass, the size of a three and one-half-month gestation, approximately 10 centimeters in diameter. These large masses were adherent to the environmental structures in the area. The structures were stuck together as a result of bleeding and clotting in the abdomen. The bleeding had resulted from a rupture of the fallopian tube caused by a pregnancy in the fallopian tube. The surgeon removed the tube and ovary on the left side and because of the damage caused by the clotted blood, also removed the ovary and tube on the right side because the blood supply had been seriously interfered with in that area, as well. The uterus was also removed.

Delores Pugh’s condition was first diagnosed on December 31, 1959, by the resident at MacNeal Memorial Hospital as endometritis, or inflammation of the uterus. This was also the diagnosis of Dr. Swiontek on January 2,1960. Her condition was diagnosed by Dr. Swiontek and Dr. Sykora during her hospitalization from January 5 to January 10 as “hyperplastic endometrium” and their diagnosis of her condition during her hospitalization commencing on January 17, 1960, was ovarian abscess. No pregnancy test was given plaintiff while she was under the care of defendants subsequent to January 1, 1960.

The testimony presented by the plaintiff consisted of her testimony, the testimony of Dr. Davis and that of the two defendants, elicited under section 60 of the Civil Practice Act (c 110, Ill Rev Stats 1967).

The gist of plaintiff’s charge is that defendants negligently diagnosed her condition, which negligence resulted in her injury, namely, the unnecessary removal of certain of her organs. Defendants, on the other hand, in support of the trial court’s action, argue that direction of the verdict was proper because plaintiff failed to prove either first, that the misdiagnosis was negligent or second, that such misdiagnosis was the cause of plaintiff’s injury.

There is no dispute concerning the general principles applicable to the liability of physicians and surgeons. The plaintiff, in order to prevail, must show first, that defendant was unskillful and negligent and second, that such want of skill and care caused the injury to the plaintiff. Gault v. Sideman, 42 Ill App2d 96, 191 NE2d 436; Olander v. Johnson, 258 Ill App 89, and Wallace v. Yudelson, 244 Ill App 320. A physician or surgeon is bound to possess and use reasonable skill, not perhaps the highest degree of skill that one learned in the profession may acquire, but reasonable skill such as physicians in good practice ordinarily use and would bring to a similar case. Schireson v. Walsh, 354 Ill 40, 187 NE 921. The exercise of skill and care is applicable to diagnosis as well as treatment. Church v. Adler, 350 Ill App 471, 113 NE2d 327.

As correlaries to the foregoing rules, it can also be said that a physician is not an insurer of satisfactory results, that unsuccessful results are not evidence of negligence and that mere mistakes or errors are not negligence. Scardina v. Colletti, 63 Ill App2d 481, 211 NE2d 762, and Piacentini v. Bonnefil, 69 Ill App2d 433, 217 NE2d 507. Where, as in the instant case, there is admittedly a misdiagnosis, the question remains as to whether such misdiagnosis was the exercise of a reasonable medical judgment or a judgment arrived at without the exercise of appropriate care.

There do not appear to be any Hlinois cases dealing with the misdiagnosis of pregnancy, generally, or a tubal pregnancy in particular. Defendants have directed our attention to Langford v. Jones, 18 Ore 307, 22 P 1064, and Pilgrim v. Landham, 63 Ga App 451, 11 SE2d 420, in support of their contention that the misdiagnosis was not the result of their failure to exercise reasonable skill and care. In the Langford case, plaintiff had a uterine tumor, which had been diagnosed several months prior to its removal by an operation performed by defendant. At the time of the removal of the tumor it was discovered that plaintiff was also pregnant. The court concluded that the failure to diagnose plaintiff’s pregnant condition was not the result of negligence, first because the painful nature of the tumor made intercourse and hence, pregnancy unlikely, and second, the removal of the tumor would have been appropriate treatment even had the pregnancy been known. It should be observed that in the Langford case the defendant did remove a large tumor which had been diagnosed, and the case is not strictly speaking, a misdiagnosis case. In the Pilgrim case, the court affirmed a directed verdict in favor of defendant physician and concluded that a bimanual examination was the exercise of sufficient skill, even though plaintiff was pregnant rather than having a tumor as diagnosed. Although the Pilgrim case discusses the judgment to be exercised in diagnosis, this is a referral case which in substance holds that a physician to whom a patient is referred for particular treatment (in this case x-ray treatment of a tumor), such physician is entitled to rely on the diagnosis of the referring physician. The aforementioned cases are illustrative of situations where physicians are deemed as a matter of law to have exercised reasonable skill and care in the diagnosis made. The only conclusion that can be drawn from such cases is that under the facts thereof, the misdiagnosis of pregnancy did not result from the failure of the physicians to exercise due skill.

However, there are many other cases in which the circumstances leading up to a misdiagnosis of pregnancy were held sufficient either to warrant submission to a jury or to support a jury’s award in favor of plaintiff. Paulson v. Stocker, 53 Ohio App 229, 4 NE2d 609; Jarboe v. Harting (Ky), 397 SW2d 775; Gottschall v. Geiger, 207 Mo App 89, 231 SW 87; Stevenson v. Yates, 183 Ky 196, 208 SW 820, and Burks v. Baumgartner, 72 NM 123, 381 P2d 57. The aforementioned cases each involve misdiagnosis of normal intrauterine pregnancies. In Sprouse v. Magee, 46 Idaho 622, 269 P 993, Smith v. Shankman, 208 Cal App2d 177, 25 Cal Rptr 195, and McHugh v. Audet, 72 F Supp 394 (applying Pennsylvania law), evidence relating to misdiagnosis was held sufficient to warrant submission to jury where the misdiagnosis related to an ectopic or tubal pregnancy. McHugh v. Audit, supra, involved a diagnosis of ovarian abscess, but upon operation it was discovered that patient was suffering from a ruptured fallopian tube caused by pregnancy therein, from which condition the plaintiff died.

Where there has been a diagnosis of some condition other than pregnancy when in fact, the patient was pregnant, the principal issue appears to be whether the true condition could and should have been discovered in the exercise of reasonable skill and care. In the instant case, the three physicians who testified agreed that the book “Obstetrics” from the original text of Joseph B. DeLee, by J. P. Greenhill, is a recognized medical text and authority in Cook County, Illinois. Defendant Dr. Sykora, agreed with the following statement from the Greenhill text. “When a woman in the reproductive period after some irregularity of the menses, complains of cramping pain in the lower parts of the abdomen with irregular uterine bleeding of brownish color, ectopic pregnancy should be suspected and if sudden excruciating pelvic pain occurs with dizziness, faintness, collapse, the diagnosis is almost certain and is confirmed by the finding of an extra-uterine mass or the discharge of a uterine decidua.” Dr. Sykora did not agree with the following quotation from Greenhill, “Whenever the diagnosis is uncertain, the patient should be hospitalized for observation and a pregnancy test.” Dr. Sykora stated that if he thought a person definitely had an ectopic pregnancy, it would be a correct statement.

In reviewing the record, it appears that defendants dispute neither the fact of misdiagnosis nor the prevailing standards relating to the diagnosis of ectopic pregnancy. Rather, they argue it is undisputed that they exercised reasonable skill and care in considering ectopic pregnancy and that the adoption of their diagnosis represented the exercise of reasonable skill and care. In this respect we do not believe the record supports defendants’ contentions. Viewing the evidence in the record most favorably to plaintiff, we believe there is ample evidence (both disputed and undisputed), from which it can be reasonably inferred that defendants did not consider the possibility of a tubal pregnancy under circumstances where reasonable skill and care would have required such consideration or failed to use reasonable skill and care in the confirmation or exclusion of such diagnosis. In this connection, it should be noted that admittedly all of the classic symptoms relating to ectopic pregnancy were presented. Yet it may be inferred from the testimony of the defendants themselves, which is in some respects vague and ambiguous, that the defendants did not discuss between themselves the possibility of ectopic pregnancy or conduct any examination with respect thereto.

We believe that plaintiff made out a prima facie case of negligence and that there is sufficient evidence from which it may be inferred that the alleged negligence was the cause of the condition complained of. There is testimony in the record that in the event of a tubal pregnancy, an operation performed before rupture of the tube usually results in a normal tube and ovary which would be left within the patient’s body. Further, if the operation were to occur shortly after a rupture so that the pelvis and the abdominal cavity did not fill with coagulated blood, it would be possible to save the other ovary. We also believe that it is fairly inferable from the evidence that the tube had not ruptured prior to examination, diagnosis and treatment by the defendants. Accordingly, the relation between the defendants’ conduct and the result cannot be said to be merely speculative or conjectural.

For the foregoing reasons, we believe the Circuit Court of Cook County erred in directing a verdict for the defendants and accordingly, the judgment of the Court is reversed and remanded with directions that the plaintiff be granted a new trial.

Reversed and remanded with directions.

ALLOY, P. J. and RYAN, J., concur.


author: ALLOY, J. RYAN, J.

text:
    Earl Edward Hendricks, a Minor, by Charles R. Hendricks, His Father and Next Friend, Plaintiff-Appellee, v. Peabody Coal Company, a Corporation, Defendant-Appellant.
    Gen. No. 52,964.
    First District.
    September 22, 1969.
    Rehearing denied October 24, 1969.
    RYAN, J., dissenting.
    Howard and French, of Chicago (Richard G. French, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   ALLOY, J.

This is an appeal from a judgment of the Circuit Court of Cook County based upon a jury verdict against defendant, Peabody Coal Company, assessing damages to plaintiff in the sum of $200,000. The jury had also answered a special interrogatory finding that Earl Edward Hendricks, plaintiff, was not guilty of negligence which proximately contributed to his injuries. As the case comes before us, the question of contributory negligence is not involved in this appeal. The only issue presented is whether plaintiff made out a case sufficient to raise a jury question, or alternatively stated, whether defendant should have foreseen harm to children such as plaintiff from the nature and use being made of defendant’s premises.

The record discloses that on June 19, 1960, plaintiff, who was then 16 years and 5% months of age, was injured when he dove into a strip mine area that was filled with water, as a result of which he apparently broke his neck when his head hit the sand bottom. As a result of such injury, plaintiff is a quadriplegic and his disability is permanent. No questions of any trial errors are raised in this cause and our sole inquiry is to determine whether, under the facts before us, defendant owed a duty to plaintiff, and whether the determination of this cause was properly made an issue of fact for the jury.

It is noted that for some years prior to 1955, Peabody Coal Company was engaged in strip-mining operations in an area near Essex, Illinois, a small community of about 75 to 100 people. The body of water which was involved was in a pit in one of the abandoned strip mines located approximately 30 miles west of the city of Kankakee. The record discloses that the water-filled quarry was known throughout the city of Kankakee and vicinity, and that many people swam there and had heard about it from other persons who swam in the location. People came from as far away as Chicago, Joliet, Kankakee, Braidwood and South Wilmington. Defendant had excavated 70 to 75 feet deep to extract all coal from the area. After the defendant had ceased its mining operations in the area in 1955, and within six months thereafter, the aperture filled with water from natural springs, rain water and snowfall, which resulted in clean, clear water and made it an excellent swimming place. The water was 35 to 50 feet deep in places. By reason of the contour of the mine, as soon as one moved a couple of feet from the shoreline, he was in deep water. It differed from a natural lake in that there was a sharp drop-off. The north and east sides of the water hole were sand. It was about half a mile long and 300 feet in width at its widest point. A sand shelf extended in varying widths from a foot to three feet along the water edges.

There was no indication by signs that the pit, which was being used for recreational purposes, was owned or maintained by anyone, but, rather, that it was just wasteland or “a swimming hole.” It was also used by motor boats, water skiers, fishermen, and picnickers. It had been frequented for long periods of time by teenagers, young adults and families who would bring infants. The water-filled quarry ran generally north and south. A two-lane paved road leading from Essex, Illinois, ran parallel to the quarry. The county gravel road ran in a westerly direction which passed a private club. From this gravel road there was a dirt road running southerly to the north side of the water. It was customary for motorists to drive up and park on the north side of the body of water, almost at the edge of the pit itself.

The particular day in question, June 19, 1960, was a Sunday. Four carloads with 13 teenagers left a home in Kankakee. When the young people arrived at the north end it was too crowded to swim there, so they went to the east end of the water. A few of the boys started to dive from a three-to-four-foot bluff into the water. When plaintiff arrived at the scene, three of his companions were diving into the water from a bluff on the east side of the north end. On this day, as on previous occasions when plaintiff had been there (this was his fifth trip there), one swimmer after another made his dive, then came to the plateau shelf and climbed up it. The sand on the shelf was stirred up and visibility made it impossible to see the location of the shelf or the bottom under the water. There was evidence that the use of the water and action of swimmers would stir the sand and make it shift. The evidence indicated that plaintiff went into the water only after seeing the other boys dive at the place several times. Each of them dove from the same spot out over the same area that plaintiff did. The evidence indicated that plaintiff was as capable in diving as the other boys. Plaintiff, however, had not yet dived at the particular place on this day. He followed one of his companions and another was waiting to follow him. From where plaintiff dove he could not see the sand and when he dove he did not know the condition of the sand in the bottom. Plaintiff ran and dived. He did not slip prior to his dive and the next thing plaintiff could remember he was laying on the bank. Other witnesses indicated that he had struck the sand at the bottom. One of his companions found him with his head partially imbedded in the sand and, with the help of others, pulled him out of the water.

From 1955 to 1960, the only policing of the area was done by defendant’s employees on a part-time basis. It was only a part-time activity, and all the employees did, when they found people there, was to take down one or two of the license numbers but nothing further was done about it. It was not until after the injury to plaintiff that defendant allowed police to come onto the premises and, thereafter, signs were also put up in the quarry. There was strong evidence that there were no signs prohibiting trespassers or warning of any danger prior to the time of the occurrence resulting in injury to plaintiff. There were also no fences or barricades of any kind anywhere nor were there any lifeguards or life preservers.

Evidence was introduced at the trial of this cause disclosing that the cost of a six-foot high steel chain link fence with steel posts set in concrete surrounding the entire pit would have cost $12,000 to $14,000, and that this would have effectively barred persons from using the premises.

It is asserted by plaintiff in this cause that as the case is now presented to this Court, the admitted facts are that (1) defendant created the condition, having excavated a deep hole out of the earth; (2) defendant abandoned the area in 1955; (3) within six months thereafter, it was filled with water thirty-five to forty-five feet deep, water which was clear and clean which defendant knew made an excellent swimming place; (4) this body of water was different from a natural lake in that there is a sharp drop-off a couple of feet from the shore, with the water following the contour of the mine; (5) when swimmers were in the water, the sand would shift from their activity in contact with it and this changed the location of the sand; (6) for a period of years, defendant knew this place was frequented by swimmers, divers, picnickers, boaters, water skiers, and fishermen; (7) defendant knew of the configuration of the pit with the shelf to the drop-off lurking just below the water surface, and that there would be large numbers of people in the place for recreation of varying ages, from adults and teenagers to infants; (8) with this knowledge, defendant undertook to police the area in an inadequate manner and not until 1961, after the accident, allowed the Essex Police Department to take over; (9) the area was not fenced, although this could have been done for a very reasonable sum; (10) defendant did not post the area so that even adults did not know it was another’s property, but described it as wasteland or a swimming hole; (11) plaintiff, as good a diver as his companions, on this particular day did a running dive, as his companions had been doing, and did not fall but went into the water, where he was found; and (12) what plaintiff struck was not known, since he seemed to go out normally on the dive and was found unconscious. These assertions made by the plaintiff are, in fact, supported by evidence in the record, although there was some dispute as to certain facts involved.

Defendant contends that plaintiff failed to show that defendant violated any duty owed to him and specifically failed to show under the precedent of Kahn v. James Burton Co., 5 I112d 614, 625, 126 NE2d 836, that defendant owed plaintiff a duty. It is stated in this connection that the theory of “attractive nuisance” to remove a minor from the status of a trespasser no longer appears to be the law in Illinois (Kahn v. James Burton Co., supra). Both parties to this cause agree that the test is foreseeability of injury as enunciated in Kahn v. James Burton Co., supra, rather than a vaguely announced doctrine of “attractive nuisance.” The fundamental question is whether the evidence establishes a sufficient basis upon which a jury could determine that defendant was guilty of negligence toward plaintiff.

As stated in Bunions v. Liberty Nat. Bank, 15 Ill App 2d 538, 147 NE2d 380 (at 504):

“Plaintiff relies upon Kahn v. James Burton Co., 5 Ill2d 614 (1955). That case marks a departure from the traditional standards developed by the law in cases in which children are attracted to and trespass upon premises and are injured as a result thereof. All cases of this character must now be examined in the light of the Kahn case. Prior authorities must yield to the principles therein set forth. Previously, such cases had been set apart in the category known as ‘attractive nuisance’ cases. The Supreme Court in the Kahn case deplored this inclination to find a ‘stare decisis pigeonhole or category’ because such procedure led to irreconcilable conclusions. The court cited instances of confusion in decisions. It laid down certain general principles governing cases such as the one before us, and we have carefully examined that opinion to determine whether the amended complaint here states a case within those principles.”

In the Kahn case, it was noted that some of the conflicting decisions had stated that water itself could not be an attractive nuisance, but that there must be other objects present, although it was the water that caused the drowning. The court concluded that these meaningless differences were best resolved by treating such situations according to the “customary rules of ordinary negligence cases.” After analyzing this situation, the court stated, in the Kahn case (at page 624) :

“In view of the foregoing conflict and the fact that, as many courts have declared, a child in his youthful fancy, imagination and ingenuity can make a plaything of almost anything and is attracted by almost everything, the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases.”

The true basis of liability which the Kahn case underscored was the foreseeability of harm to the child. As the court stated (at page 625):

“The element of attraction is significant only insofar as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”

In Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684, a boy 16 years and 2 months of age dove into defendant’s fenced, artificial pond on his farm, struck a submerged stump, and was paralyzed. Defendant contended that plaintiff hit the pond bottom. The plaintiff had heard about the pond from others and the pond had been used by the public for many years, frequently without defendant’s permission for swimming, outings and picnics. The trial court had directed a verdict on a negligence count for the defendant and the jury found for defendant on a willful and wanton count. The Appellate Court reversed and remanded for new trial on both counts and considered that the case presented questions, first, as to defendant’s foreseeability of harm to children, and, secondly, on the question of the minor’s care. The court stated in that case (at page 259):

“Giving the principles of the Kahn case their full import, and applying them to the facts in the instant case, the conclusion seems irresistible that the issues as to whether the pond and premises were sufficiently attractive to entice the plaintiff as to entering them, whether the condition of the pond and premises were such as to create an unreasonable danger to children frequenting them, whether the defendant should reasonably have foreseen harm to children from the condition of his pond and premises, and whether the plaintiff was guilty of contributory negligence, were questions for the jury under the circumstances shown in the record. We find further support for this conclusion in the following decisions handed down since the Kahn case was decided: Haloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98; Wilinski v. Belmont Builders, Inc. (1957), 14 Ill App2d 100, 143 NE2d 69; Kleren v. Bowman (1957), 15 Ill App2d 148, 145 NE2d 810; Runions v. Liberty Nat. Bank (1957), 15 Ill App2d 538, 147 NE2d 380; Melford v. Gaus & Brown Const. Co., Inc. (1958), 17 Ill App2d 497, 151 NE2d 128.”

The court further stated, at page 260:

.“With regard to the age of the plaintiff, it is our conclusion that the fact that he was 16 years and 2 months old at the time of the occurrence does not prevent the principles of the Kahn case from applying. While the plaintiff was 16 years of age, he had just completed his freshman year of high school. Moreover, the question of contributory negligence, as hereinabove noted, is preeminently a question for the jury to determine in the light of the plaintiff’s capacity, intelligence, and experience.”

Age alone has not been the conclusive factor and, as stated in the Restatement of the Law of Torts, 2d edition, § 339, Comment c:

“The great majority of the courts have rejected any such fixed age limit, and have held that there is no definite age beyond which the rule here stated does not apply.”

Normally, under the Blinois law, the degree of care of a minor under the age of 21 is a question of fact to be determined by the jury in view of the minor’s age, mental capacity and experience (Wolf v. Budzyn, 305 Ill App 603, 27 NE2d 571). This particular rule is codified in IPI 10.05, which instruction was given in this case and as to which defendant has not raised any question on this appeal.

Both parties have cited § 339 of the Restatement of the Law of Torts, 2d edition, as supporting the position of both appellant and appellee in this case. In such section it is stated that a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land under certain situations. Under subsection (a) it is stated:

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass.”

In the case before us, the place was described as an excellent swimming place. Defendant had actual knowledge that it was used for this purpose and for recreation.

In subsection (b) of § 339 of the Restatement, it is stated:

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children.”

In the case before us, the children used the place not only for diving, picnicking and swimming, but for water skiing and fishing. Because of the nature of the swimming place with its quick drop-off approximately two feet from the shoreline, it involved far greater risk of death or serious bodily injury than if it was an ordinary lake with its gradual inclination. The jury could well have determined that the defendant could have foreseen the happening of the occurrence, in this case.

In subsection (c) of § 339 of the Restatement, it is stated:

“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.”

In the case before us, the boys with whom plaintiff swam and dived, and whose ability in swimming and diving was equal to the plaintiff’s, had been diving in the same place for one-half hour to 45 minutes prior to the injury, without any injury to themselves, which was observed by plaintiff on this and on other occasions. It was also noted in the record that the sand would be disturbed and that there would be a change in position of the sand which would not be visible to someone above the surface of the water. There was nothing unusual in plaintiff’s dive in this case.

In subsection (d) of § 339 of the Restatement, it is stated:

“ (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved.”

The particular location had been abandoned and had not been used since 1955. It had no future use or value according to the record in this cause. The entire body of water could have been closed off with a steel fence for between $12,000 and $14,000. This cost was slight compared to the risk to the children involved (Dallas v. Granite City Steel Co., 64 Ill App2d 409, 419, 211 NE2d 907). What could constitute a slight burden would necessarily depend upon the facts of each case and likewise upon the economic capacity of the defendant. Defendant in the case before us could have barricaded the road to prohibit entry. What could or should be done in particular cases, such as with isolated farm ponds, would obviously depend upon the facts in each case.

In subsection (e) of § 339 of the Restatement, it is stated:

“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

The record shows there were no safeguards for the protection of the children in that the area was not fenced and was not posted with any signs; that defendant undertook to police the area but did not do so effectively; and, that there were no lifeguards or other means of preventing injury or drownings on the premises.

The test of foreseeability was also the basis for determination in Driscoll v. C. Rasmussen Corp., 35 Ill2d 74, 219 NE2d 483, which was cited by defendant in support of its position. In that case (at page 78), the court stated:

“Defendant could hardly have foreseen that cans might be opened, the contents splashed on clothing and the clothing later ignited by fire obtained at other places. Such is not the natural and probable consequence of maintaining a trash pile.” .

In the case before us, defendant knew of the water pit and its nature and knew of the shelf and the drop-off below the surface of the water. Defendant also knew that the place was used by many persons for swimming and diving.

In the case before us, on the basis of the record, we do not believe we would be justified in stating as a matter of law that the record did not authorize submission of this cause to the jury. Had a jury determined that plaintiff was not entitled to recover, this determination would have been equally binding upon plaintiff. Since, on the basis of the record, this became a jury question, its determination by the jury should not be disturbed by this court on review. The judgment of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

STOUDER, J., concurs.

DISSENTING OPINION

RYAN, J.

I cannot concur in the opinion of the majority of this court.

Within the tests prescribed by section 339 of the Restatement of the Law of Torts 2d and those announced by our Supreme Court in Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, the defendant did not owe the plaintiff the special duty created by section 339 and the Kahn case in favor of trespassing children. The special duty therein announced is to exercise reasonable care to eliminate the danger or otherwise protect children. (Section 339 (e).) Once the special duty has been created, whether or not the defendant has exercised the reasonable care required thereby is a question of fact for the jury to determine. However, the existence of the duty is not a question of fact but is a question of law and it must be determined only by the court. Prosser on Torts, 3rd edition, 207; Restatement of the Law of Torts, 2d edition, § 328B.

The plaintiff has contended and the majority opinion has adopted the contention that the sole test of liability is the foreseeability by the defendant of harm to children. With this I cannot agree. The majority opinion quotes from page 625 of the Kahn case to the effect that the true basis of liability is the foreseeability of harm to the children. This statement has been lifted from the context of the rest of the paragraph and thus has been given an entirely different meaning. The portion of the paragraph preceding this statement in the Kahn case states the general rules that the land owner is under no duty to keep his premises in any particular condition to promote the safety of the trespasser. That infants have no greater rights to go upon the lands of others than adults and that their minority of itself imposes no duty upon the occupier of land to expect them or prepare for their safety. The paragraph then sets forth an exception to the general rules as follows:

“It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (Citation.) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.” (Emphasis added.)

Thus, it is not in all cases of injury to trespassing children that foreseeability of harm is the test of liability. Foreseeability is the test only when the exception to the general rule is brought into existence by the presence of the situations enumerated in the paragraph above quoted: (1) owner knows or should know young children frequent the vicinity of the dangerous agency and, (2) the agency is one the owner knows or should know is likely to cause injury to the children, and (3) the children because of their immaturity are incapable of appreciating the risk involved, and (4) the expense or inconvenience of remedying the condition is slight compared to the risk to the children. The paragraph then states:

“In such cases there is a duty upon the owner . . . to use due care . . . .” (Emphasis added.)

Thus only in such cases where the special duty to trespassing children has been created by the existence of the factors enumerated in the paragraph under consideration is the duty to use due care imposed upon the landowner. Once this duty to use due care is created then and only then is foreseeability the test of liability. Foreseeability is the test to be applied in determining negligence and negligent conduct does not impose liability upon a landowner for injury to trespassing children unless the special duty to use due care has been created by the existence of the circumstances enumerated.

Section 339 of the Restatement of the Law of Torts, 2d edition, states the same exception to the general rule as is announced in the Kahn case as follows:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
“ (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
“ (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

The conditions set out in subsections (a), (b), (c) and (d) correspond with those conditions enumerated in Kahn necessary to create the special duty to trespassing children.

As I have above stated the question of whether a defendant owes a duty to a plaintiff under an established set of facts is not a question of fact but is a question of law to be determined by the court. However, evidence must be presented to establish the facts which, in turn, create a duty. When this evidence is capable of having different inferences drawn therefrom or when the evidence concerning the facts relating to the duty is conflicting, then the question of the existence of the facts which create the duty is a question of fact to be determined by the jury under proper instructions of the court relating to the duty. If however there is no question as to the existence or nonexistence of the facts which create the duty or if the evidence concerning the same is so overwhelming as to compel acceptance of a fact as proved by a reasonable man, then there is no question concerning duty to be submitted to the jury. See Restatement of the Law of Torts, 2d edition, section 328B, comment on clauses (a) and (b).

In light of this, we must examine the evidence as the same relates to the circumstances which are enumerated in subsections (a), (b), (c) and (d) of said section 339 and the counterparts of these subsections as the same are set out in the Kahn case. In doing so we are not trying to ascertain the foreseeability of harm to the child. We are rather trying to determine the existence of circumstances stated in subsections (a), (b), (c) and (d) of said section 339 which if present would create the duty of the defendant set out in subsection (e) of said section 339, i. e., duty to use reasonable care to eliminate the danger or otherwise protect the children. If the evidence in relation thereto is not susceptible to different inferences or is not conflicting then the jury has no role to play in determining the question of duty.

I am basing my dissent in this case primarily on subsection (c) of section 339 of the Restatement which is fully set out above. We are not dealing here with an infant of tender years who inadvertently fell into a pit filled with water or who inadvertently fell from a bank overlooking the same. We are dealing with a plaintiff who is 16 years, 5^4 months of age, who knowingly dived into the pit. The question presented under subsection (c) of said section 339 is whether this plaintiff because of his youth did not discover the condition or realize the risk involved in so doing.

The testimony of the plaintiff himself under cross-examination which is relevant on this point is as follows:

Q. “And at the time that this accident occurred, did you consider yourself to be somewhat of an expert in swimming and diving?”
A. “I was good.”
Q. “Not only from that day but the other four times that you had been there you were aware that the bottom went out from the shoreline approximately two and a half to three feet and then there was a sheer drop-off, weren’t you?”
A. “Yes.”
Q. “And you didn’t know how deep it was because you had never gotten to the bottom after this drop-off, isn’t that true?”
A. “Yes.”
Q. “And on the date that you dove and just before you dove, you had been wading in this area and you were aware that two and a half, three feet out there was a sheer drop-off, weren’t you?”
A. “Yes.”
Q. “When you waded out before you dove, you could only wade out about three feet and then there was a drop-off and you would have to swim, right?”
A. “Yes.”
Q. “The point at which you arrived at the drop-off —strike that — Let me ask you this question. The shoreline as it extended out for this two and a half or three feet was similar to any other shoreline, wasn’t it, by that I mean you would have a very small amount of water and gradually get a little bit deeper as the bank sloped down, is that correct?”
A. “Yes.”
Q. “And about the deepest that it got before the drop-off was how deep ?”
A. “About three feet.”
Q. “And then at the point where the drop-off starts it was abrupt or sheer, isn’t that right?”
A. “Yes.”
Q. “You had either this day or on previous occasions when you were there explored it to see how deep the water was after you came to this drop-off, hadn’t you?”
A. “Yes.”
Q. “And then when you got to the point that has been marked on there you made this running dive into the water, right?”
A. “Yes.”
Q. “The time that you did that you knew there was a shelf that extended some two and a half, three feet out into the water, didn’t you?”
A. “Yes.”
Q. “And you knew that in order to safely dive you would necessarily have to dive over that shelf into the deeper water, isn’t that so ?”
A. “Yes.”
Q. “In fact, that was your intention to dive out far enough so that you would miss the bottom or the shelf that was there and dive into the deep water, right?”
A. “Yes.”
Q. “When you dove you hit, you dove short and hit the bottom, isn’t that what happened?”
A. “Yes.”

This testimony of the plaintiff indicates not only that he had discovered the condition which gave rise to his injury, but that he was well aware of the existence of the same and that he realized the risk involved, knowing that he had to dive over the ledge in order to safely complete his dive. By virtue of this knowledge the circumstances described in subsection (c) of said section 339 of the Restatement do not exist. There exists no question of fact concerning these circumstances for the jury to determine. As a matter of law, in the absence of the conditions enumerated in subsection (c), the duty to use reasonable care for the protection of the plaintiff did not exist. It is stated in Prosser on Torts, 3rd edition, page 381:

“Since the one basic reason for a rule distinguishing trespassing children from trespassing adults is the inability of the child to protect himself, the courts have been quite firm in their insistence that if the child is fully aware of the condition, understands and appreciates the risk which it carries, and is quite able to avoid it, he stands in no better position than any adult with similar knowledge and understanding.”

The comment on subsection (c) of section 339 states:

“The purpose of the duty is to protect children from dangers which they do not appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known and appreciated danger.”

In Jennings v. Glen Alden Co., 369 Pa 532, 87 A2d 206 (1952) an action was brought against the coal company for the recovery of damages for the death of a 13%-year-old boy who drowned while swimming in an abandoned strip mine. The court, relying on subsection (c) of section 339, denied recovery, stating that the duty of a possessor of land to trespassing children does not extend to those conditions the existence of which are obvious even to children and the risk of which are fully realized by them. The dissent in that case was based on the fact that there was no evidence to show that the boy knew of the risk involved in swimming in the flooded mine.

In O’Keefe v. South End Rowing Club, 64 Cal2d 729, 51 Cal Rptr 534, 414 P2d 830 (1966) the plaintiff, a high school boy, was injured when he dived from a pier and struck his head on the bottom. The court relying on subsection (c) of section 339 denied recovery because the plaintiff had actual knowledge and appreciated the danger involved. The court quoted that portion of Prosser on Torts quoted above.

The majority opinion refers to Skaggs v. Junis, 27 Ill App2d 251, 169 NE2d 684. The Skaggs case is clearly distinguishable from this case. In Skaggs there was evidence presented that there were submerged stumps in the pond and that the plaintiff, when he dived, struck his head on one of these stumps. The dangerous condition which brought about the plaintiff’s injury within the meaning of section 339 was not the pond but the pond with submerged stumps in it. There was no evidence to indicate that the plaintiff had any knowledge of the existence of the submerged stumps. Thus, the conditions of subsection (e) of section 339 were clearly present in the Skaggs case, whereas in our case they have been eliminated by the testimony of the plaintiff himself.

The fact that the jury in response to a special interrogatory found that the plaintiff was not guilty of negligence which proximately contributed to his injuries is not controlling on the issue of duty owed by the landowner. The question of the child’s contributory negligence is a separate problem from that of the landowner’s duty. While it is proper to hold that the question of contributory negligence is a jury question (see Skaggs case, supra), the question of whether the facts disclose a duty owed to the plaintiff by the defendant is, in the first instance, a question of law for the courts. O’Keefe v. South End Rowing Club, supra, at page 843; Jennings v. Glen Alden Co., supra, at page 209.

I also cannot agree with that part of the majority opinion which indicates that the defendant should have erected a steel chain link fence 6 feet high, supported by steel posts set in concrete at a cost of from $12,000 to $14,000. The duty is not to prevent the trespass but under the conditions enumerated in section 339 to use reasonable care for the protection of known trespassing children. I am of the opinion that it is a nearly impossible task to erect a boy-proof fence against the ingenuity of a group of teenage boys bent upon having a swim. They were willing to drive a distance of 30 miles to get to this swimming hole. It is doubtful if their ambitions to indulge in this sport could have been deterred by a 6-foot fence. Once they had breached the barrier, they would again be trespassers, and if their presence were known or should have been known to the defendant, the same duty would thereby be placed on the defendant under the conditions of section 339 as would apply if the fence were not there. Again, we must remember that we are not dealing with three, four, or five-year old children who have inadvertently wandered upon the premises. We are dealing with sixteen-year-old boys who drove 30 miles for the express purpose of swimming on this property.

The expenditure of $12,000 to $14,000 for the erection of such a fence may be considered an insignificant expenditure when we are talking about the total assets of the defendant Peabody Coal Company. However, the law as announced by the majority opinion is not limited in its application to the Peabody Coal Company alone nor to only the large and wealthy corporations. It applies with equal force to individual owners of every farm pond in this state. I regret the implication of the majority opinion that the owners of these farm ponds must erect a 6-foot steel chain link fence supported by steel posts set in concrete to satisfy any duty they may owe to trespassing children.

The plaintiff has cited Dallas v. Granite City Steel Co., 64 Ill App2d 409, 211 NE2d 907, as holding that a required expenditure of $55,000 is not to be considered an excessive burden on the defendant. This case has been cited in the majority opinion. The Dallas case did not hold as the plaintiffs contend. In that case the estimate of the cost to raze all of the old houses was $55,000. The evidence relating to the cost of razing the building and leveling the lot where the plaintiff and other children played ranged from $80 to $200. This is the expenditure which was held insignificant as compared to the risk involved to the children.

I do not think in the case now under consideration that we can say that the expenditure of from $12,000 to $14,-000 is a slight burden within the meaning of subsection (d) of section 339. I likewise do not believe that we can say that such an expenditure is “slight compared to the risk to the children” as stated in the Kahn case.

For the above reasons I respectfully dissent from the opinion of my colleagues.