author: MR. JUSTICE ENGLISH

text:
    Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Jack’s Tivoli Liquor Lounge, Inc., Henry Geyer, President, and the License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 52,837.
    First District, Fourth Division.
    December 24, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Stuart Sikevitz, Assistant Corporation Counsel, of counsel), for appellant. .
    Stanley W. Cooke, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal by plaintiff, the Local Liquor Control Commissioner, from an order of the Circuit Court (under the Administrative Review Act) affirming the License Appeal Commission’s reversal of plaintiff’s revocation of the liquor license of Jack’s Tivoli Liquor Lounge, Inc.

Plaintiff’s abstracts and briefs were filed in due course, but no briefs have been filed on behalf of defendants. Plaintiff has filed a motion calling our attention to this alleged default situation, and on that account requesting a judgment of reversal by this court without consideration of the case on its merits, citing a number of cases.

Granting that the authorities cited support the motion, we believe that we should not take the action requested (for reasons which we shall explain), but, rather, that we should consider the appeal on its merits, even though we do not have the benefit of an appellees’ brief.

Our research on this subject has led us to very few cases decided prior to about five years ago. Since that time, however, their number has been legion, prompted largely, we have no doubt, by desire for a proper, but simple, and expeditious disposition of cases in the light of the alarming volume of appeals which have overwhelmed our Appellate Courts in recent years. This is particularly true of the First District, where all of our Divisions have filed opinions declaring that in the absence of a brief by appellee, the judgment of the trial court may be reversed without consideration of the case on its merits. E. g., Algozino v. Police Board of City of Chicago, 111 Ill App2d 34, 249 NE2d 720 (First Division); Beinarauskas v. Beinarauskas, 90 Ill App2d 381, 234 NE2d 16 (Second Division); Klein v. Priest, 92 Ill App2d 74, 235 NE2d 870 (Third Division); Tabron v. Pleasant, 64 Ill App2d 367, 212 NE2d 312 (Fourth Division). See, also, Shanholtzer v. McDaniel, 97 Ill App2d 81, 239 NE2d 459 (Second District); Village of Mount Prospect v. Malouf, 103 Ill App2d 88, 243 NE2d 434 (decided by Third District judges); Carlson v. Oberling, 73 Ill App2d 412, 218 NE2d 820 (Fourth District); and Timmerman v. Wilson, 74 Ill App2d 224, 219 NE2d 767 (Fifth District).

In all of the dozens of cases which we have examined in this matter, there is no citation to an Illinois Supreme Court decision, and we have found none which we consider controlling. There are some references to ILP, Appeal and Error, § 560, which states:

Where the appellee has filed no brief in the reviewing court, the court need not examine the record in detail or discuss the case at length, and may-reverse and remand the cause, but reversal of the judgment is not required, and the reviewing court may consider and determine the case on its merits.

Among the footnote citations to this quotation is Glos v. Hallowell, 190 Ill 65, 60 NE 62. The first headnote to that opinion reads, “Failure of the appellee to file a brief in the Supreme Court is of itself ground for reversal.” It is true that no brief was filed by the appellee in that case and that the judgment of the trial court was reversed, but in its opinion the court discussed only the merits of the case, and a close reading discloses no basis for the quoted headnote.

In People ex rel. Houston v. Frye, 35 Ill2d 591, 592, 221 NE2d 287, the court commented on the fact that it was without the assistance of a brief by the appellee, but then proceeded to consider the case on its merits, and affirmed the judgment of the trial court. That case involved habeas corpus, which is a civil proceeding (Ex parte Tom Tong, 108 US 556) and, therefore, if it were to be considered authority at all on the point now before us, it would, by inference, favor the conclusion which we reach. Since, however, the point in question was neither argued nor stated, we do not believe the decision to be a directive in the instant case.

Among all the Appellate Court opinions which have declined to consider cases on their merits, about the strongest statement is to be found in People v. Spinelli, 83 Ill App2d 391, 393, 227 NE2d 779. Defendant-Appellant had been convicted of violating a village ordinance (a civil proceeding). The court said:

The plaintiff Village has filed no brief in this court. Such circumstance is regrettable since it leaves the judgment of the trial court without the support of brief and argument to which it is justly entitled. Also, under this posture of the case, if this court is to proceed on its own initiative to determine the merits of the case, it must do so in the dual role of advocate and judge—a position abhorrent to any court.
Of late, there has been a growing tendency in this Judicial District on the part of certain attorneys on. behalf of the State, its municipalities and political subdivisions, to omit the filing of an appellee’s brief in compliance with Supreme Court Rule 341 and its predecessor rule. This dereliction is unfair to both the trial court and this reviewing court and, consequently, we have determined to reverse the judgment pro forma. (Emphasis supplied.)

Some cases have said simply, “Because of the failure of defendant to file a brief or argument, the order . . . is reversed . . . .” E. g., Johnson v. Lipsky, 88 Ill App 2d 250, 232 NE2d 119. Some cases have held that, in the absence of an appellee’s brief “judgment may be reversed without initial consideration of the cause on its merits.” E. g., Beinarauskas v. Beinarauskas, 90 Ill App 2d 381, 234 NE2d 16. Some have held that it is “unnecessary for us to discuss the case in full.” E. g., Parkside Realty Co. v. License Appeal Commission of City of Chicago, 87 Ill App2d 374, 375. Others have said that “the reviewing court may reverse the judgment without further explanation of the merits of the appeal.” E. g., Woodward v. Woodward, 96 Ill App2d 251, 252, 231 NE2d 654. Or, “this in and of itself would warrant the court in reversing the orders appealed.” E. g., Dear v. Dear, 87 Ill App2d 77, 78, 230 NE2d 386. From a somewhat different point of view, some opinions have stated that the failure to file an appellee’s brief “is tantamount to confession of error.” E. g., Tabron v. Pleasant, 64 Ill App2d 367, 212 NE2d 312.

Some of the decisions have referred to court rules as requiring an appellee to file a brief, and his failure so to do as noncompliance with rules. E. g., Wind v. Paulson, 76 Ill App2d 389, 222 NE2d 137; Wieboldt Stores, Inc. v. Mautner, 61 Ill App2d 368, 210 NE2d 597; and People v. Spinelli, supra. At the time of the Wind and Wieboldt cases, for example, Supreme Court Rule 39 (made applicable to this court by our Rule 5) provided in part that “Each party to a cause in this court shall file a printed brief in which the parties shall be referred to as in the trial court . ...” A study of Rule 39 in its entirety, and in context with Rules 40 and 41, reveals, in our opinion, that the subject dealt with was essentially the form, format, and limitation of time for the filing of briefs rather than a mandatory requirement that an appellee file a brief. Ill Rev Stats 1965, c 110, §§ 101.39-101.41. In the current rules covering the same subject matter (Supreme Court Rules 341 and 343 which were involved in Spinelli, supra), the text has made this clear, we believe, through a complete revision and elimination of the language of the former rule quoted above. Ill Rev Stats 1967, c 110A, §§ 341, 343. It is interesting, also, that the Committee Comments to Rule 343 refer to the provision in former Rule 41 to the effect that an appeal would be dismissed if the appellant’s brief was not filed in time. The provision, the Committee said, was omitted “as both too strict and unnecessary” in the light of the court’s inherent power to dismiss an appeal for any breach of its rules. No provision was made in the former rules (nor in the current rules), nor is there any Committee Comment concerning sanctions to be exercised against an appellee for failure to file a brief. This, we believe, is a recognition of the difference between the two situations which we shall comment on later in this opinion.

In the large group of cases we are considering, the statement most frequently made in reference to the absence of an appellee’s brief, is that the judgment “may be reversed without consideration of the cause on its merits.” E. g., Klein v. Priest, 92 Ill App2d 74, 235 NE2d 870. And in other opinions it has been made expressly clear that the courts are exercising a discretion which they consider to be theirs, as to whether the appeal should or should not be determined on its merits. E. g., Gunderson v. Rainbow Cleaners & Laundry, 77 Ill App2d 268, 271, 222 NE2d 41.

No case, so far as we know, has attempted to set forth in any definitive way, what factors are worthy of the court’s consideration in deciding to review an appeal on its merits without benefit of an appellee’s brief. The cases which have made such reviews, however, are of interest in this regard.

Some of these opinions proceed to discussion of the merits without stating any reason for doing so. E. g., Daley v. Richardson, 103 Ill App2d 383, 243 NE2d 685 (judgment reversed); and Fuhrer v. Führer, 91 Ill App 2d 358, 235 NE2d 389 (judgment affirmed). In Gunderson v. Rainbow Cleaners & Laundry, 77 Ill App2d 268, 243 NE2d 685 (judgment affirmed), the reason given for consideration of the merits was the understandable reluctance of the appellee to incur the expense of filing a brief because of the limited amount involved. In Hamel v. Delicate, 104 Ill App2d 241, 242, 244 NE2d 401 (judgment affirmed), the court said, “Since only the single issue of the sufficiency of the evidence as to cause of death remains for determination, we elect to review the case.” The reason stated in Dear v. Dear, 87 Ill App2d 77, 78, 230 NE2d 386 (reversed in part, dismissed in part), was that “the appellant, who we assume to be a lay person without legal training, deserves more than a perfunctory disposal of her problem after her arduous labor.”

What might be termed an intermediate position in review of the merits was reached in Meliach v. Guillame, 63 Ill App2d 103, 104-105, 211 NE2d 606 (judgment reversed), where the court examined the appellant’s brief and “the cases cited sufficiently to conclude that the position taken was prima facie sound.”

A reason more often given is that the merits will be considered because there are “important principles” involved. See Village of Mount Prospect v. Malouf, 103 Ill App2d 88, 89, 243 NE2d 434 (judgment reversed); and Mello v. Lepisto, 77 Ill App2d 399, 400-401, 222 NE2d 543 (judgment reversed). By far the largest number, however, ascribe as the reason, the avoidance of “injustice” (e. g., Matyskiel v. Bernat, 85 Ill App2d 175, 177-178, 228 NE2d 746 (judgment reversed)); or the doing of “substantial justice.” E. g., Zaidenberg v. Occidental Life Ins. Co. of California, 65 Ill App2d 305, 315, 212 NE2d 526 (judgment affirmed); and Carlson v. Oberling, 73 Ill App2d 412, 218 NE2d 820 (judgment affirmed) .

Of the cases we have examined in which the court considered the merits of the appeal, roughly half resulted in affirmance and half in reversal. Thus, it can be seen that merit determination has by no means been employed only when the court has been unimpressed with the appellant’s brief.

While this Division has probably filed its share of the various types of opinions referred to above, we now conclude that the avoidance of injustice and the doing of substantial justice are concepts sufficiently sound as standards of judicial function to require their application to all cases without any process of selection.

At the first step in our reaching this position lies the profound difference which we perceive to exist between default affirmance and “default” reversal of a trial court judgment. When an appellant does not pursue his appeal diligently—by failing to file his brief, or otherwise—there may very properly result either dismissal of the appeal or affirmance of the judgment. In either event, the result is the same as though there had been no appeal in the first place, a situation which obtains with respect to the vast majority of trial court judgments. Looking at the case in the totality of its voyage through the court system, there has been, at that point, only one considered judgment on the merits of the case, and it has been permitted to stand.

A very different result is reached, however, when, for lack of a brief by an appellee, there has been a reversal of the judgment without consideration of the merits. At that point in the total experience of the case, there has also been only one considered judgment on the merits, but it has not been permitted to stand. In neither case does the reviewing court make a decision as to whether or not the trial judge was correct in his judgment, yet in the latter hypothesis that judgment is set aside, and for no reason having anything to do with the considerations which determined its entry. Surely, a judgment, when viewed as the work product of the trial, is entitled to better treatment from another branch of the same judicial system. Should we not presume it to be proper unless and until we are convinced to the contrary? When the trial judge enters a judgment, and thereby exercises his ultimate judicial function, he should not have to see all that he has put into his decision in time, effort, study, skill and knowledge, held for naught, simply because, for economic or other reasons—or for no reason at all—the successful party has not seen fit to defend his judgment on appeal. This is especially true, and especially frustrating to the trial court, when, as in many such cases, the cause is remanded for a new trial without any indication of error in the first trial, and therefore without any reasonable prospect of a different result upon retrial.

Some years ago, we reached a similar result in criminal eases, and we now believe we cannot justify a different procedure in civil cases. In People v. Kelly, 66 Ill App2d 204, 209, 214 NE2d 290 we were presented with a confession of error on behalf of the State with request for reversal and remand, a situation which we deem the strongest possible “default” on the part of an appellee in the matter of defending the judgment of the trial court—an affirmative failure of support, so to speak. Yet we held that we were “not bound to recognize as error whatever a party may confess to be such, nor are we bound to follow the suggested remedy of either party for the cure of any such confessed error.” We cited Young v. United States, 315 US 257, 258-259, where the Supreme Court said:

The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.

See also: Sibron v. New York, 392 US 40, 58-59; United States v. Holton, 227 F2d 886, 893-895 (7th Cir), cert den 350 US 1006; People v. Puleo, 71 Ill App2d 173, 218 NE 2d 41; People v. Mortenson, 224 Ill App 221; People v. Allen, 71 Ill App2d 283, 218 NE2d 837; People v. Fitzgerald, 91 Ill App2d 191, 234 NE2d 79.

Cates v. Haderlein, 342 US 804, was a civil suit for injunction. There, the United States Supreme Court, in reversing and remanding for further proceedings, made it clear that its action was taken not only upon consideration of a confession of error, but also upon its own consideration of the record.

All of which leads us to conclude that a reviewing court may properly affirm (or dismiss) for failure of compliance with its rules, but it should not reverse a trial court judgment except after consideration of the merits of the appeal.

We turn, then, to consideration of this appeal on its merits.

Among the findings of the Mayor, as Local Liquor Control Commissioner, was one that the bartender on the licensed premises permitted a female to solicit a police officer to engage in acts of prostitution, in violation of the statute prohibiting such solicitation. Ill Rev Stats 1967, c 38, § 11-15. It is clear that if this finding was supported by substantial evidence, it constituted a sufficient cause for the order of license revocation. Article VII, section 5, of the Liquor Control Act authorizes revocation if the licensee violates any rule of the State Liquor Control Commission. Ill Rev Stats 1967, c 43, § 149. In turn, Rule 3 of the State Commission provides, in substance, that a licensee shall not permit a violation of any state law on the licensed premises. See Daley v. Johnson, 89 Ill App2d 100, 233 NE2d 95; Daley v. Rifkin, 84 Ill App2d 467, 228 NE2d 224; and Daley v. Ryan, 80 Ill App2d 44, 225 NE2d 143.

We also conclude, on the basis of our examination of the record, that the Mayor’s finding in question was supported by substantial evidence. The police officer (who was assigned to the Vice Control Division) testified that while he was sitting at the bar in civilian clothes, a woman approached and sat beside him; that they had a conversation in which she suggested that she would engage in sexual intercourse with him for a fee of $20, plus room rent at a nearby hotel, to all of which he agreed; that while this solicitation was being made, the bartender was standing in front of them across the bar, three or four feet away.

He testified further that he then had a conversation with the bartender at the package goods counter, telling him where he was going with the woman and the arrangements she had made with him for $20. He said he also told the bartender he had a quantity of money on him and asked “if she was all right.” The reply was that she “constantly came into the tavern”; “that he had never known her to get into any trouble”; and that if he [the witness] wanted him to, he [the bartender] would hold his money for him until he returned from the hotel, which offer was declined. Continuing, the officer testified that he told the bartender that the woman wanted to take with them a bottle of whiskey, which he proceeded to buy, and then, before leaving, he bought a round of drinks for the bartender, the woman, and himself; that he and the woman then went to the hotel room where she disrobed, he paid her the $20, and placed her under arrest.

The bartender’s testimony corroborated that of the officer in general outline, but he denied that he had been told by the officer about the arrangements with the woman. Further, he testified that at the package goods counter, the officer “asked me if I get his money and I said, ‘keep your money.’ ” He also denied that he had offered to hold the officer’s money for him, but, on the contrary, had refused to do so.

The judge in the Circuit Court decided that the officer’s testimony was insufficient to show a violation of the statute, making reference to the case of Daley v. License Appeal Commission, 54 Ill App2d 265, 204 NE2d 36, although conceding that this case could be distinguished on the facts. In a colloquy explaining his conclusion, the judge stated that the evidence in this case “borders on entrapment”; that the seriousness of prostitution and the problem of keeping licenses in proper hands “didn’t give the police officer the right to manufacture the evidence that is now used later to incriminate any defendant.”

In cases of this kind, we, and the Circuit Court, and the License Appeal Commission are all required to accept the judgment of the Local Commissioner as to the credibility of the witnesses. It is only he, as the trier of the facts, who is authorized to assess credibility, weigh the evidence, reconcile conflicting evidence, if possible, and, if not possible, determine which witnesses are worthy of belief. Crepps v. Industrial Commission, 402 Ill 606, 615, 616, 85 NE2d 5; Parker v. Department of Registration and Education, 5 Ill2d 288, 293, 294, 125 NE2d 494; Adamek v. Civil Service Commission of Chicago, 17 Ill App2d 11, 20, 149 NE2d 466; Daley v. Rifkin, 84 Ill App2d 467, 470, 228 NE2d 224; Ill Rev Stats 1967, c 43, § 153 and c 110, § 274. Neither the Circuit Court nor this court should disturb the Commissioner’s decision so long as it is supported by substantial evidence, and is neither arbitrary nor contrary to the manifest weight of the evidence. Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 211 NE2d 778; Daley v. Johnson, 89 Ill App2d 100, 233 NE2d 95. See also Nechi v. Daley, 40 Ill App2d 326, 335-336, 188 NE2d 243 where the court said:

Under the Administrative Review Act the findings and conclusions of the administrative agency on questions of fact are to be held prima facie true and correct (Ill Rev Stats 1961, c 110, § 274). The law in Illinois is well settled that the scope of judicial review is limited to a consideration of the record to determine if the findings and orders of the administrative agency are against the manifest weight of the evidence, and it has been consistently held that the courts are not authorized to reweigh the evidence or to make an independent determination of the facts. [Citations omitted.]

In our opinion, the testimony of the police officer was adequate to establish violation of the soliciting statute and, therefore, adequate also to support the license revocation. We are unable to find in this record anything other than possible disbelief of this evidence (which, as we have pointed out, is not available to us) to justify the Circuit Court’s determination that it amounted to entrapment or was otherwise insufficient.

The judgment of the Circuit Court is therefore reversed and the cause is remanded with direction to reverse the order of the License Appeal Commission and affirm the license revocation order of the Local Liquor Control Commissioner.

Reversed and remanded with directions.

DRUCKER, P. J. and STAMOS, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Crown, Plaintiff-Appellee, v. Village of Elmwood Park, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,959.
    First District, Fourth Division.
    December 24, 1969.

      Adamowski, Newey & Riley, of Chicago, for appellant.
    John J. Sullivan and William J. Harte, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal from a $36,500 judgment in favor of plaintiff for personal injuries sustained when she fell while walking on a sidewalk in the defendant Village.

Defendant raises three issues on appeal: (1) Plaintiff was guilty of contributory negligence as a matter of law; (2) the trial court erred when it denied defendant’s motion asking that plaintiff be required to submit to a physical examination by a doctor of defendant’s choice; and (3) the amount of the judgment was excessive.

Testimony as to the occurrence itself is not in dispute. Plaintiff testified that, on the evening of August 23, 1964, on her way home from work, she alighted from a bus at Harlem and Diversey. She then walked west on the south side of Diversey. “It was dark. The street lights were lit. They are up quite a distance, but it was light.” She was taking a step when she was startled by a dog barking, and, as she turned slightly, the heel of her shoe caught on a place in the sidewalk where one part was higher than the other. Beginning to fall, she tried to gain her balance, staggered “because it was steep,” and fell, landing in the street on her stomach.

Plaintiff further testified that she had terrific pain down her whole left side as she was lying in the street. She suffered bruises on her stomach, face, arms, and knees. Her left leg was broken and she remained in the hospital for three weeks with her leg in a cast.

Plaintiff was 54 years old at the time she suffered the injury, and had lived in the Village since 1941. She testified that she had taken this same route maybe ten or fifteen times before and had noticed the particular sidewalk recess in question.

One other occurrence witness testified. He was walking east on the south side of Diversey approaching plaintiff when he heard a scraping sound, like metal on cement. He saw plaintiff trip on the sidewalk and stumble. She tried to catch her balance, but fell in the street, landing about four or five feet from the curb. He ran up to her. She appeared to be in pain and he could see that her leg was broken. After getting help from a passing motorist, he examined the sidewalk and noticed that a large slab in the sidewalk “had sunken” about two inches from the normal level of the rest of the walk.

Defendant contends that the facts show plaintiff guilty of contributory negligence as a matter of law because (1) she failed to keep a proper lookout for her own safety when approaching a known defect in the sidewalk, and (2) she continued to walk forward even though she turned her head toward a distraction.

One who knowingly uses a defective sidewalk is not guilty of contributory negligence per se; and if such person is in the exercise of ordinary care, there may be a recovery in case of injury. Swenson v. City of Rockford, 9 Ill2d 122, at 127, 136 NE2d 777. Ordinary care is “the care a reasonably careful person would use under circumstances similar to those shown by the evidence.” See IPI, § 10.02, and cases there cited.

The issue of contributory negligence is ordinarily a question for the trier of fact—the trial judge, in the instant case. It becomes a question of law only if “all of the evidence, when viewed in its aspect most favorable to [the plaintiff here] . . . , so overwhelmingly favors [the defendant here] . . . that no contrary [finding] . . . based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504. The Pedrick case is definitive on this subject, and other cases cited need not be considered.

From a careful study of the record, we have concluded that the evidence in the instant case did present an issue of fact as to plaintiff’s negligence or freedom therefrom, and that the trial judge’s finding in this regard was adequately supported by the testimony of witnesses whose credibility he was in the best position to assess.

Defendant also contends that the trial court erred by denying defendant’s motion that plaintiff be examined on the first day of trial by a doctor of defendant’s choosing, relying on Supreme Court Rule 215(a) which states in part:

[T]he court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination .... [Emphasis added.]

Ill Rev Stats 1967, c 110A, § 215 (a). Paragraph (c) of the same rule requires that a rather complete report be prepared and distributed to both parties within 21 days after the examination, and “in no event later than 14 days before trial.” A brief chronological summary of the proceedings in this case will demonstrate that defendant’s motion was not timely and that the trial court did not abuse its discretion in denying it.

Both the complaint and defendant’s answer were filed in March, 1965. On May 31, 1967, the case was originally set for trial on June 26, 1967. Defendant requested and received a continuance at that time. Again, on September 27, 1967, defendant moved for a continuance, which was granted, and trial was reset for October 3, 1967. Plaintiff was inconvenienced by this continuance, since the treating physician was to be unavailable as a witness from October 3 until October 28, 1967. Plaintiff therefore moved for a continuance to “any Monday after October 28, 1967,” and this was granted to Monday, October 30,1967.

Plaintiff’s deposition was taken by defendant on October 24, 1967, and defendant claims that, as a result of information obtained at the deposition, it made its motian on Friday, October 27, for plaintiff’s physical examination on October 30, the day trial was set to commence. Defendant did not move for another continuance of the trial. No attempt was made by defendant to show good cause for making the physical examination, as required by the discovery rule set forth above. Testimony was heard on October 30 and 31, and judgment was entered on November 1, 1967. On November 29, upon defendant’s motion, the court entered an order, nunc pro tune as of October 27, denying defendant’s motion for plaintiff’s physical examination.

Defendant’s present attorney substituted his appearance in the case on January 16, 1967. The record discloses that defendant did not avail itself of pretrial discovery procedures in any manner prior to the taking of plaintiff’s deposition on October 24, 1967. The trial having been continued three times to that point, only the weekend intervened until the agreed date for commencement of the trial. Under these circumstances, we believe that the governing rule was not complied with and that the court’s denial of defendant’s motion was well within its proper discretion. See Jackson v. Whittinghill, 39 Ill App2d 315, 188 NE2d 337. We note also that paragraph (d) (2) of the same Rule 215, makes provision for the court to order an impartial medical examination during the course of trial if there are compelling reasons for doing so. Defendant made no request for such an examination.

Defendant lastly contends that the assessment of the judgment was excessive in that it was based upon speculative medical testimony concerning future surgery for which there was no foundation in the record. Specifically, defendant alleges that plaintiff’s treating physician, Dr. Harold Sofield, an admittedly qualified orthopedic surgeon, testified, from two X rays taken the day following the accident, that plaintiff’s rheumatoid arthritis of the knee (which condition was exposed during the taking of plaintiff’s medical history) had “turned or changed into an osteo-arthritis.” He amplified this diagnosis by explaining that arthritis can be aggravated by trauma and become “symptomatic,” wherein the afflicted area becomes “red, hot and painful.” He further testified that the condition of plaintiff’s knee and ankle was an “adequate cause of pain” and would be a permanent condition unless there were ankylosis of the knee, and perhaps of the ankle, by surgery. Plaintiff’s testimony was adequate to support this medical opinion. She testified that as compared to the time before the accident in question, her knees are “stiffer than they ever were, especially the left one.” Further, she continued to experience pain which was not present before. Plaintiff also testified that she had “terrific pain” in her shank bone and across the left ankle; that her left ankle swells up after she is on it for two or three hours; and that prior to the accident, she had never experienced trouble with either the shank or ankle of that fractured leg.

We do not consider this medical testimony improperly speculative. Rather, we find that this testimony, in consonance with plaintiff’s own testimony, very properly presented the issue of damages, as based upon the nature, extent and duration of plaintiff’s injuries. The award of $36,500, although substantial, does not appear to us to be excessive on this record.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and STAMOS, J., concur.


author: MR. JUSTICE STAMOS

text:
    Emmett Moore, Plaintiff-Appellant, v. Albert C. Peters, Township of Wheeling, a Body Politic and Corporate, and Francis Brosseit, Defendants-Appellees.
    Gen. No. 53,299.
    First District, Fourth Division.
    December 24, 1969.
    Wahler & Pecyna, of Chicago (Daniel W. Pecyna and Edward R. Davis, of counsel), for appellant.
    No brief for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal by plaintiff from a judgment entered upon a direction of a verdict in favor of defendants. The sole issue raised on appeal addresses itself to the propriety of the trial court’s denial of a petition for change of venue.

Plaintiff in the pursuance of his appeal has complied with the statutory requirements and rules of this court. No appearance or brief was filed in this court by defendants, despite this fact we will consider this appeal on its merits. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill App2d 264, 254 NE2d 814 (1969).

Plaintiff’s cause of action was assigned to Judge David A. Canel for trial by the assignment court. The assignment was made on May 2, 1968 at approximately 1:30 p. m. and at 2:00 p. m„, plaintiff and defendants appeared before Judge Canel at which time plaintiff initially presented a petition for a change of venue from Judge Canel and nine other judges, and then a motion for a short continuance because it was alleged that the attorney who was to litigate the matter was engaged in trial in another courtroom.

Judge Canel in response to the petition for a change of venue advised plaintiff that “if anybody that does not want to try a case before me for any reason, I do not want them.” Judge Canel then promptly reassigned the matter to the assignment judge and denied the motion for a continuance. All the parties then returned to the assignment court where plaintiff renewed his petition for a change of venue and motion for a short continuance, both were denied and the case reassigned to Judge Canel.

Upon the second appearance that day before Judge Canel plaintiff again presented his petition for a change of venue which was denied. The court proceeded to the selection of a jury and the opening statement of defendant.

The court thereupon adjourned the matter until the following day, May 3, 1969, at 9:30 a. m. at which time, plaintiff having failed to adduce any evidence in his behalf, the court directed the jury to return a verdict in favor of defendants. The court’s order recited “. . . plaintiff having renewed his petition for change of venue which said petition was again overruled. ...”

The record discloses that the petition, was in conformity with the statute, Ill Rev Stats, c 146, § 1 (1967) and under the statute and the decisions, we hold that the petition for change of venue when initially presented to Judge Canel should have been allowed.

In Howarth v. Howarth, 47 Ill App2d 177, 181, 197 NE2d 736 (1964) this court said:

“It has been held that the right to a change of venue on account of the alleged prejudice of the trial judge is absolute if the requirements of the statute are met.”

In Hinduliak v. Inn of Four Lakes, Inc., 98 Ill App2d 42, 48, 240 NE2d 532 (1968) this court said:

“Where a petition for change of venue on the ground of prejudice is presented in due time and in proper form, the court is without power to render any further order except in connection with the order allowing the change of venue.”

We are aware of attendant abuses of the change of venue statute but we noted in Howarth, supra, page 180:

“Under the statute in the controlling cases the hands of the judge are tied and he must forthwith grant the change of venue.”

We are compelled to reverse the trial court and remand this cause of action, with directions to grant the initial petition for change of venue and to vacate all orders entered after May 2, 1968, including the judgment.

Reversed and remanded with directions.

DRUCKER, P. J. and LEIGHTON, J., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Shirley Mast, Plaintiff-Appellant, v. Terri Rogers, Defendant-Appellee.
    Gen. No. 69-78.
    Second District.
    December 24, 1969.

      Gordon F. DeHart, of Aurora, for appellant.
    O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This is an appeal from a summary judgment holding that the Workmen’s Compensation Act was a bar to a common-law action brought by plaintiff, Shirley Mast, to recover for personal injuries allegedly resulting from the negligence of the defendant, Terri Rogers.

The plaintiff and defendant were both employees of the Portable Electric Tool Company, hereinafter referred to as P.E.T., in the City of Geneva, Illinois. On the tenth day of September, 1965, at approximately 4:30 p. m., the plaintiff and defendant had completed their workday and had gone to their respective cars in the P.E.T. parking lot to leave their employment for the day. Both parties then exited from the parking lot onto a road, which led to U. S. Highway Alternate 30.

The road in question was owned, controlled and maintained by P.E.T. although Globe Union, Inc., whose plant was located southwest of the P.E.T. plant, had previously been granted an easement of ingress and egress by P.E.T. since no other road was available to service its plant. It was also the only road which granted access to and from the P.E.T. plant. This road runs in a north-south direction and forms a “T” intersection with U. S. Highway Alternate 30.

After exiting from the P.E.T. parking lot onto the road in question, the plaintiff and defendant proceeded north to a point approximately five car lengths south of the traffic light on U. S. Highway Alternate 30. The light, at that time, was red for plaintiff’s direction of travel and plaintiff’s vehicle was stopped. Defendant’s vehicle, which was immediately to the rear of the plaintiff’s vehicle, was also stopped, waiting for the traffic light to change. While waiting for the light to change, defendant leaned over to pick up her purse and in doing so she released her foot from the car brake causing her car to move forward and strike plaintiff’s car, thereby allegedly causing injury to the plaintiff.

Plaintiff, on appeal, contends that her injury did not arise out of and in the course of her employment so as to bar her common-law action and that genuine issues of material fact existed which should have precluded the order granting defendant’s motion for a summary judgment.

As to the phrase, “arising out of,” what was said in Chmelik v. Vana, 31 Ill2d 272, 277, 278, 201 NE 2d 434 (1964) is applicable here:

“. . . ‘Arising out of’ refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury, (citations omitted) and in order for an injury to come within the act it must have had its origin in some risk connected with, or incidental to, the employment, so that there is a causal connection between the employment and the injury. (Citations omitted.) . . . Ordinarily, an injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected (citations omitted); . . . however, if an employee is exposed to a risk common to the general public to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment. (Citations omitted.) ”

We do not agree with plaintiff’s contention that the accident did not arise out of her employment. The record clearly shows that the road in question was owned, maintained and controlled by P.E.T. and that it was never maintained or dedicated to the City of Geneva, Illinois, in whose jurisdiction it falls. It was furnished and maintained by P.E.T. to facilitate the arrival and departure of its employees.

Proof that an employee is present at the place where he was injured because of his employment is not by itself sufficient to sustain his burden of proving that the injury arose out of the employment, but an injury fairly traceable to the employment as a contributory proximate cause qualifies as having arisen out of the employment. W.K.I.D. Broadcasting v. Industrial Commission, 42 Ill2d 236, 239, 247 NE2d 601 (1969); Brewster Motor Co. v. Industrial Commission, 36 Ill2d 443, 449, 223 NE2d 131 (1967).

This court is of the opinion that the injury occurred on a road that was provided and used as an incident of the employment, the P.E.T. plant-owned road being an adjunct of the P.E.T. plant, and that the injury is fairly traceable to the employment as a contributing, proximate cause; therefore, the injury arose out of the employment.

The words, “in the course of the employment” concern the time, place and circumstances of the injury, W.K.I.D. Broadcasting v. Industrial Commission, supra, 239. The employment contemplates an employee’s entry upon and departure from the employer’s premises as much as it contemplates his working there. Employment is not limited to the exact moments when an employee begins or ceases his duties, but necessarily includes a reasonable time before commencing and after concluding actual employment, Chmelik v. Vana, supra, 278. Such is the situation as it existed in this case.

We conclude that the plaintiff-employee was still in the course of her employment at the time of the accidental injury.

The purpose of a summary judgment procedure is not to try an issue of fact but rather to determine if one exists. The right of the moving party should be free from doubt, determinable solely as a question of law and the whole record must be considered. Miller v. Owens Illinois Glass Co., 48 Ill App2d 412, 416, 199 NE 2d 300. Plaintiff contends that there is a genuine issue of material fact as to whether or not the road in question was private. In considering the record as a whole, it is clear that the road on which the accidental injury took place was privately owned and maintained by P.E.T.

The plaintiff also contends that whether or not plaintiff’s injury arose out of and in the course of her employment and whether or not plaintiff was an employee of P.E.T. at the time of the accidental injury, are other genuine issues of material fact that should have precluded the summary judgment entered by the trial court. Since we have already found that the trial court’s finding was correct as a matter of law as to these points, we feel that no further elaboration is necessary here.

The judgment is therefore affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: PER CURIAM.

text:
    Velma Sims, Plaintiff-Appellant, v. Robert D. Sneed, Defendant-Appellee.
    Gen. No. 69-29.
    Fifth District.
    December 26, 1969.
    Leonard J. Dunn, of West Frankfort, and Frank Bonan, of McLeansboro, for appellant.
    Conger & Elliott, of Carmi (Ivan A. Elliott, Jr., of counsel), for appellee.
   PER CURIAM.

Plaintiff filed a complaint against the defendant for personal injuries sustained in an automobile collision. Defendant was insured by Country Mutual Insurance Company. Plaintiff filed a motion for leave to add the insurance company as an additional party defendant alleging that the insurer had “so completely taken over the defense of the above action and has so extensively injected itself into this action, that a complete and fair determination of the controversy cannot be had without making said corporation a party defendant herein.” In support of the motion plaintiff presented uncontradieted testimony to the effect that a claims adjuster for Sneed’s insurance company had talked to two witnesses in the case and had told them if the plaintiff got what she was claiming, the defendant would be paying for the rest of his life. He also suggested to them that in view of the time that had passed, they could forget hearing the defendant say that it was all his fault. The court denied the motion and entered an order with an express finding that there is no just reason for delaying enforcement or appeal of this order. The plaintiff appeals.

The only issue is whether plaintiff can join defendant’s insurer as a codefendant before there is a determination of defendant’s liability.

Plaintiff admits that under existing Illinois law a liability insurance carrier cannot be joined in a suit against the assured. However, she argues persuasively that under present day circumstances this rule should be changed, citing as her principal authority the case of Bussey v. Shingleton (Fla), 211 So2d 593 (1968), where the Florida Court of Appeals said at page 596:

“The insurance company, by the terms of its policy has placed itself in the position that it has the right to control litigation against its insured, if there is a possibility, no matter how slight, of said insurance company incurring any liability as a result of said litigation, and by the same contract of insurance has obligated itself to defend the litigation, no matter how frivolous. Therefore, if the insurance company by the very nature of its contract of insurance has injected itself into the litigation as a real party in interest, then it should not be heard to deny the right of the plaintiff to point this out in a complaint for damages against an insured where it is known that such insurance policy does in fact exist.
M
• • •
“We feel that today there is a difference in the insurance required, calling for a different view from that heretofore, held by our courts. We feel it is time that our courts adopt a construction of the Rule to conform to that which is necessary to see the carrying out of justice. We must remember, there is no statutory law prohibiting the making of the insurer a defendant. It is case law and we may by case law change the rule to mete out justice. Such liability policies, as the one in this case is admitted to be, in view of the mandatory statutorial requirements for liability insurance in minimum specified amounts, and the demand therefor by public policy, and the injection of the insurance company as an interested party, by the policy itself, we think should be construed as quasi-third party beneficiary contracts, thereby giving the injured third party unquestionable right to join such maker of such insurance policy as a party defendant.”

However, in Marchlik v. Coronet Ins. Co., 40 Ill2d 327, 239 NE2d 799 (1968), the Illinois Supreme Court held that an action brought in Illinois against two insurers based on the Wisconsin Direct Action statute was properly dismissed as contrary to the public policy of this state, and that refusal to enforce the Wisconsin statute did not violate the full faith and credit clause of the Federal Constitution.

“. . . An examination of the Illinois law and customs will, we believe, demonstrate that entertaining direct action suits is contrary to a firmly-fixed public policy.
“First, while there is no direct legislation prohibiting such actions as in Michigan (Lieberthal v. Glens Falls Indemnity Co., 316 Mich 37, 24 NW2d 547), section 25 of the Civil Practice Act (Ill Rev Stat 1967, chap 110, par 25(2),) which provided for the filing of a third party complaint, expresses a legislative policy by adding the admonition: ‘Nothing herein applies to liability insurers or creates any substantive right to contribution among tortfeasors or against any insurer or other person which has not heretofore existed.’ Section 388 of the Insurance Code (Ill Rev Stat 1967, chap 73, par 1000) provides that policies shall contain a privilege for suit against an insurer where the insured becomes insolvent or bankrupt and execution has been returned unsatisfied. These statutory provisions definitely indicate to us a legislative policy against direct actions against insurers before judgment.” Id. 332-333.

As an appellate court, it is not within our province to deviate from the public policy established by our Supreme Court or to modify its decisions. Agricultural Transp. Ass’n v. Carpentier, 2 Ill2d 19, 116 NE2d 863; Belden Mfg. Co. v. Chicago Threaded Fasteners, 84 Ill App2d 336, 228 NE2d. 532; Miller v. City of Chicago, 25 Ill App2d 56, 165 NE2d 724; Hensley v. Hensley, 62 Ill App2d 252, 210 NE2d 568. Although we deplore the actions of the insurance adjuster in this case, we do not believe that they furnish a sufficient basis to add the insurance company as a party, in view of the public policy against so doing pronounced by our Supreme Court in Marchlik, supra.

The trial court did not err in denying plaintiff’s motion.

Order affirmed.


author: HR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Myron Marsh, Defendant-Appellant.
    Gen. No. 52,988.
    First District, First Division.
    December 29, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   HR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Myron Marsh, was indicted in Count 1 “for the offense of attempt in that he, with the intent to commit the offense of aggravated kidnapping, attempted to knowingly and secretly confine Susan Szostak, a child under the age of thirteen years, against her will, in violation of Ch 38, Sec 10-2 (or-2) of the Ill Rev Stats 1965, and in Count 2 for the offense of unlawful use of weapon, in that he knowingly carried concealed on his person a pistol in violation of Ch 38, Sec 24-1 (a-4) of the amended Ill Rev Stats 1965.” He pleaded not guilty and waived a jury trial. The court found him guilty as charged and sentenced him to the Illinois State Penitentiary for a term of between five to seventeen years.

Defendant, on appeal, contends that the trial court erred in accepting a jury waiver; that he was not proven guilty beyond all reasonable doubt; and that the sentence was excessive and should be reduced.

A jury trial is a privilege which every defendant in a criminal case possesses under the constitutions of the United States and the State of Illinois. This privilege may be waived by the defendant with the consent of the court provided the waiver is expressly and understandingly made. People ex rel. Swanson v. Fisher, 340 Ill 250, 172 NE 722 (1930). It is the duty of the trial judge to see that the election to waive a jury is expressly and understandingly made. There is no set or specific standard which the trial court can follow. Let us examine the record in the instant case pertaining to the question of the jury waiver. The following colloquy took place at the beginning of the trial between the court, defendant and counsel:

THE COURT: “Is this a bench or jury?”
MR. NELSON: “A bench, Judge. I have talked to my client and advised him of his right to a trial by jury. At this time, he requests to waive trial by jury and at this time he will sign a waiver of a jury trial.”
THE COURT: “Is that correct, Mr. Marsh?” THE DEFENDANT: “Yes, sir.”
THE COURT: “You are waiving it and wish to be tried by this Court?”
THE DEFENDANT: “Yes, your Honor.”
THE COURT: “Will you sign the waiver, please, indicating that.”

The jury waiver was signed by the defendant and became part of the court record.

The determination whether a jury waiver was understandingly made must rest upon the facts of each particular case. In the instant case, the remarks of the trial court had been preceded by explanations on the part of defendant’s privately retained counsel and the waiver was made in the presence of counsel.

We find that the case of People v. Sailor, 43 I112d 256, adequately disposes of the defendant’s contention. In that recent case, the Illinois Supreme Court stated:

“Nor do we find merit to the further contention of defendant that the court failed in its duty to see that her waiver of a jury trial was understandingly and knowingly made. (People v. Surgeon, 15 Ill2d 236). The record reveals that defendant’s counsel, in her presence and without objection on her part, expressly advised the court that the plea was ‘not guilty’ and that a jury was waived. An accused ordinarily speaks and acts through his at-
torney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action. (See: People v. Novotny, 41 Ill2d 401; People v. King, 30 Ill App2d 264; People v. Melero, 99 Ill App2d 208; Hensley v. United States (DC cir), 281 F2d 605; People ex rel. Derber v. Skaff, 22 Wis2d 269, 125 NW2d 561.) As was observed by the court in Melero (99 Ill App2d at 211, 212): ‘The trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.’ ”

Similarly in People v. Wesley, 30 Ill2d 131, 195 NE2d 708 (1964), the conviction was reversed because the 16-year-old defendant should have been committed to the Illinois Youth Commission. As far as the question of the jury waiver is concerned, the court on page 133, stated:

“When defendant and his appointed counsel appeared, . the court inquired whether there was to be a jury or a bench trial and after being given time to converse with a doctor present, counsel informed the court it would be a bench trial. When this occurred, the court asked defendant to step up and received affirmative answers to inquiries as to whether defendant understood that he had a right to a jury in each case, and as to whether defendant wanted the court to try the cases. There is no specific or defined formula which the trier of fact is to follow, or from which to judge whether a waiver is understandingly made, and we believe of necessity that the determination must rest upon the facts of each particular case. Here, as was partly true in People v. Palmer, 27 Ill2d 311, it is apparent that the remarks of the court had been preceded by explanation on the part of defendant’s counsel; the waiver was accomplished in the presence of counsel; and it is to be gathered from the hearing on aggravation and mitigation that defendant, while youthful, was no stranger to criminal proceedings. Accordingly, we are of the opinion the trial court was correct in its determination that the right to trial by jury was expressly and understandingly waived.”

In People v. Surgeon, 15 Ill2d 236, 154 NE2d 253 (1958), the trial court advised the defendant in the presence of his counsel that he was entitled to a trial by jury. His attorney thereupon waived trial by jury. Thereafter the defendant informed the court that he wished to waive a jury and be tried by the court. He also stated “that he had previously misunderstood and thought he had to accept a jury trial upon a not guilty plea. He thereupon signed a jury waiver.” The court found that he was informed of his right to a jury trial and “that the waiver was understandingly made and that the court fulfilled its duty.”

Defendant also contends that the State failed to prove him guilty of the offense of attempt for which he was indicted. The statute defines it as follows: “A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” C 38, § 8-4 (a), Ill Rev Stats (1967).

Let us examine the record in this case. The defendant, his wife and two children returned from a picnic late in the afternoon after spending several hours there. Upon returning home at 2856 W. 25th Place, Chicago, he left immediately. He drove south toward 47th Street on which he turned west. He was driving around in said neighborhood having crossed Cicero Avenue, which is located at a point 4800 west. At south 51st Street and Meade Avenue (6100 west) he saw the complaining witness, Susan Szostak, aged ten years. Defendant pulled up to the curb, stopped his car and after lowering the window on the passenger’s side, leaned over from the driver’s side and asked her where Cicero Avenue was. After she said she did not know and continued on her bicycle, he pulled out a gun and ordered her to get off the bike. He got out of the car, chased after her and pulled her off the bike. He dragged her by her shoulders and arm and pulled her into the car on the passenger side. Susan was screaming when a police car pulled up behind the defendant’s car. Defendant then threw the gun out. It was later found by the police two to three feet from the defendant’s car. Officer Wielander testified that while driving the squad car on 51st Street, he noticed defendant holding Susan by the wrist just before the squad car pulled up to the defendant’s car. Defendant admitted that he had the gun and two knives and that he must have pulled the girl toward the car. He denied pushing her in the car but admitted that the girl was screaming and that he did take hold of her on the shoulders.

From the foregoing we agree with the judgment of the trial court that the defendant had the requisite intent to kidnap Susan and that he took substantial steps to do so. Defendant has argued that his intoxicated condition negated the element of intent so that he did not knowingly attempt to kidnap this girl. The only evidence on this point is defendant’s self-serving statement that he had been drinking with a friend at his house and also at the picnic he attended with his family. This took place over a span of several hours on the day in question and was corroborated by defendant’s wife and friend. We are not convinced that his voluntary drinking could be characterized as the state of drunkenness which would negate proof of intent. In our judgment the attempt was proven beyond all reasonable doubt.

Defendant contends that there was no confinement, nor was it secret, and no kidnapping. The defendant was charged with the attempt and not aggravated kidnapping and the attempt was proven by the State as stated above.

Lastly, defendant complains that the sentence is excessive. Where the sentence of the trial court is within the statutory limits it should not be reduced unless it is manifestly in excess of the Illinois constitutional requirement that all penalties be proportioned to the nature of the offense. Had the police not arrived at the moment they did, the defendant might have faced a more serious charge. The trial court has the main responsibility to determine proper punishment at the time of sentencing and the appellate courts should not interfere unless there is an abuse of discretion. The defendant was found guilty of a serious offense and we conclude that the sentence imposed by the trial court is proper.

Affirmed.

MURPHY and BURMAN, JJ., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    Judy DeFranze, Plaintiff-Appellee, v. Margaret Valenzia, Defendant-Appellant. Judy DeFranze, Plaintiff-Cross-Appellant, v. Edward Napravnik, Defendant-Cross-Appellee.
    Gen. No. 53,037.
    First District, First Division.
    December 29, 1969.

      Querrey, Harrow, Gulanick & Kennedy, of Chicago (Richard H. Hoffman and Joseph Harrow, of counsel), for appellant.
    Warren Hickey, Hickey, Gustafson & Peterson, of Chicago (Joseph B. Lederleitner, of counsel), and Parrillo and Sims, of Chicago (Murray W. Sims, Jr. and David J. Weiss, of counsel), for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This case arose from an action by Judy DeFranze for personal injuries which resulted from a collision involving the automobile of Margaret Valenzia, in which plaintiff was a guest passenger, and the automobile driven by Edward Napravnik. The case proceeded to trial against both defendants in which plaintiff alleged that Margaret Valenzia was guilty of willful and wanton negligence and further alleged that Edward Napravnik was guilty of the negligent operation of his car which collided with the Valenzia vehicle. The jury returned a verdict for the plaintiff and against the defendant, Valenzia, assessing damages in the amount of $9,000. The jury answered affirmatively a special interrogatory in which they found defendant, Valenzia, guilty of willful and wanton conduct toward the plaintiff. The jury also rendered a verdict for defendant, Napravnik, and against plaintiff. After the trial court entered judgment in conformity with the jury’s findings, defendant Valenzia and plaintiff DeFranze both argued post-trial motions which were denied and these appeals followed.

The plaintiff has characterized her cross-appeal as conditioned upon our decision of the issue asserted by defendant Margaret Valenzia. For that reason, we will first concern ourselves with the appeal asserted by Valenzia. The issue arises from statements made by plaintiff’s counsel in closing arguments to the jury, in which reference was made to the several verdict forms and special interrogatory which were to be submitted for the jury’s consideration. Plaintiff’s counsel proceeded upon an extended discussion of the possible verdicts that the evidence would support in order to reach a favorable verdict for his client. Counsel then made reference to the special interrogatory which the jury would answer whether they found that Margaret Valenzia was guilty of willful and wanton misconduct which proximately resulted in plaintiff’s injuries. Then, the following was stated to the jury by plaintiff’s counsel:

“[I]f you find both of them guilty, and only because Margaret Valenzia is one of them, you then have to sign the Special Interrogatory, and you have to write in the word ‘yes’ or ‘no.’ If you find that she is responsible along with the other defendant, you write in the word ‘yes,’ and your Foreman signs it and the rest of you do.
“Then, if you find Margaret Valenzia alone is the one who is responsible, there is a verdict that you sign against her assessing damages, and then, again, you have to sign the Special Interrogatory with respect to her, and I ask you to make it, or sign it, and put the word in ‘yes.’
“So, as to make it clear, and do it quickly, let us look at it this way:
“The plaintiff is here, and you take the two people on the other side. Let us call them the Ford which is the car the girl was riding in. The other one is the Lincoln. If you find that the judgment should be against the Ford and the Lincoln, then, you sign the verdict against both of them, and you also sign the Special Interrogatory. And I ask you to sign it ‘yes’ because you have already found her responsible in your verdict against both of them.”

The defendant further complains that the trial judge committed the same error as the plaintiff’s counsel when the court instructed the jury with these remarks:

“If there is a finding against the defendant, Margaret Valenzia, it will be required that you answer this interrogatory yes or no.”

With regard to the trial court’s comment concerning the special interrogatory, we are of the opinion that there is no merit in the defendant’s contention that this statement was erroneous. Hence, we will consider the question asserted by the defendant only as it pertains to counsel’s closing argument.

Defendant, Valenzia, argues that these statements destroyed the usefulness of the special interrogatory as a check upon the jury’s deliberation over the general verdict (Wise v. Wise, 22 Ill App2d 54, 159 NE2d 500 (1959)), in that the jury was informed that the special interrogatory was dependent on their general verdict. The argument is that this violates the intent of section 65 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 65). The defendant refers us to the case of Sommese v. Maling Bros., Inc., 36 Ill2d 263, 222 NE2d 468 (1966), where the court held that reversible error was committed when plaintiff’s attorney made a reference to the source of the special interrogatory, that the special interrogatory “supersedes” the general verdict, and that the jury should “harmonize” its answer to the special interrogatory with the general verdict. The Supreme Court found such argument incorrectly informed the jury of the need for conformity of the special interrogatory with that of the general verdict.

The plaintiff argues that this argument did not emphasize the need for conformity and that the case comes within the rule of Chicago & A. R. Co. v. Gore, 202 Ill 188, 66 NE 1063 (1903), where the court reasoned that an attorney’s reading of a special interrogatory to the jury and discussing the evidence concerning that point was only for the purpose of the jury reaching a proper decision in the case. The court further stated that it was proper for counsel to suggest the general verdict and also to suggest answers to the special interrogatory based on the evidence presented.

We are in agreement with the plaintiff’s theory on this issue. Looking at the closing argument as a whole, we feel that plaintiff’s counsel was properly suggesting the answer that the jury should reach on the special interrogatory. We do not find that counsel was urging that the jury’s answer to the special interrogatory should conform or be in agreement with the general verdict. In the case of Westbrook v. Chicago & N. W. Ry. Co., 248 Ill App 446 (1928), the applicable rule was stated, at page 450:

“It is improper for counsel to ask the jury to answer the special interrogatories so that they may agree with their verdict or to discuss the legal effect of their answers to special interrogatories or their bearing on their general verdict.”

In the Westbrook case, reversible error was found where counsel had suggested several answers to special interrogatories and then told the jury: “Then your verdict will stand just as you find it.” We are of the opinion that the comments made by plaintiff’s counsel were not in violation of the above rule and that the judgment should not be disturbed.

With regard to the plaintiff’s cross-appeal against the defendant, Edward Napravnik, the plaintiff has stated that her contentions and argument were conditioned upon our decision concerning the Valenzia appeal. Plaintiff has argued that if we were to reverse the trial court as to defendant Valenzia, that we should reverse the entire matter for a retrial; however, if we were to affirm the above appeal, then plaintiff does not desire a decision on her cross-appeal. Despite our affirmance of the Valenzia appeal, we elect to answer the merits of plaintiff’s contentions as asserted against the verdict in favor of defendant Edward Napravnik.

Essentially, plaintiff contends that the jury’s verdict was against the manifest weight of the evidence in absolving Napravnik of liability in this case. The applicable rule to be applied is that in order for a reviewing court to hold that a contrary verdict should have been reached, an opposite conclusion from the evidence must be clearly apparent and it is not sufficient that a jury could have drawn different inferences from the evidence. Gary v. Rogers, 104 Ill App2d 154, 243 NE2d 665 (1968); E. A. Meyer Const. Co. v. Drobnick, 49 Ill App2d 51, 199 NE2d 447 (1964); Stone v. Guthrie, 14 Ill App2d 137, 144 NE2d 165 (1957). Accordingly, we must examine the facts and circumstances of the instant case to reach a decision on this issue.

Our reading of the record discloses that Napravnik testified that on the afternoon of September 21, 1962, he was driving his automobile eastbound on Grand Avenue, which has three lanes for each direction of travel; that he was proceeding in the lane closest to the center line when he stopped for a traffic signal at Sayre Avenue and Grand Avenue; he then proceeded east in this lane from the traffic light for about 75 to 100 feet until he saw the car driven by Margaret Valenzia, which was coming at him in his lane of traffic; he then slammed on his brakes and the Valenzia car was beginning to turn left, as if to head south, when the collision occurred. Margaret Valenzia, the driver of the car in which plaintiff was riding, said she had stopped on Grand Avenue in the westbound lane in order to make a left turn into a parking lot; that she observed Napravnik’s car stopped at the light but that she never looked in that direction from the time she started to make her turn until the collision took place. The plaintiff established that she had accepted a ride from her co-worker Valenzia, and that the latter was attempting to make a left turn into a driveway off Grand Avenue at the time of the collision. Plaintiff could not estimate the speed of Valenzia’s automobile nor that of the Napravnik car. She saw Napravnik’s car at the time of the impact and was facing east on Grand Avenue when the impact occurred.

From this state of evidence, we cannot conclude that an opposite conclusion from the jury’s deliberations is apparent. On the contrary, we believe the verdict in favor of Edward Napravnik is amply supported by the summary of facts we have discussed. Therefore, we affirm the judgment in favor of Edward Napravnik and against Judy DeFranze.

We hold that the decision of the Circuit Court of Cook County should be affirmed as to both appeals involved in this case.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


author: CRAVEN, P. J.,

text:
    Tri-County Grain Terminal Company, an Illinois Corporation, Plaintiff-Counterdefendant-Appellee, v. Swift & Company, an Illinois Corporation, Defendant-Counterplaintiff-Appellant.
    Gen. No. 11,069.
    Fourth District.
    December 30, 1969.
    Rehearing denied January 26, 1970.

      Thomas, Mulliken & Mamer, of Champaign (Albert F. Manion, Roger E. Haughey, Carl J. Sinder, of Champaign, and Harvey L. Hensel, of Chicago, of counsel), for appellant.
    Thomson, Thomson & Mirza, of Bloomington, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

Swift & Company appeals from a judgment of $26,920 in favor of Tri-County Grain Terminal Company on a claim for the value of soybeans delivered under a contract between the partied, and from a second judgment entered in favor of Tri-County Grain Terminal Company on an order setting aside a jury verdict of $53,240 for Swift & Company on its counterclaim against Tri-County Grain Terminal Company for damages for soybeans not delivered by Tri-County.

Tri-County Grain Terminal Company, operating a grain-elevator company, had a fleet of six grain trucks used to transport grain in connection with its terminal storage facilities and for hauling to and from local elevators. It had contracted with Swift & Company to deliver certain truckloads of soybeans containing an approximated number of bushels, within a fixed period of time, to Swift’s soybean mill at Champaign where the latter manufactured soybean oil and meal.

The soybeans were received by Swift & Company and measured in accordance with the usual custom and practice in the grain industry existing throughout central Illinois. Incoming grain trucks were driven onto a scale platform and weighed to obtain a gross weight. The truck was then moved off the scales and the soybean contents of the truck dumped into a pit from which they were carried by conveyor belt into large storage tanks and commingled with other incoming grain. After dumping the beans the truck returned to the scale and was reweighed empty to get an empty or “tare” weight. The parties accepted the net weight, i. e., the difference between “gross” and “tare,” as accurately representing the quantity of soybeans delivered, as is the established custom and practice.

To deliver the soybeans to the Swift & Company mill Tri-County used two oversized tractor-trailer trucks identified as Units 1 and 4. Each unit consisted of a General Motors Diesel tractor coupled with a 38-foot dump trailer equipped with a hydraulic hoist. The trailer was attached to the tractor by means of a large steel plate called the “5th wheel.” The trailer was equipped with landing legs and small forward wheels, called “dollies,” by which it was supported when detached from the tractor. When coupled together as a tractor-trailer unit, the unit was 54 feet long. Because of the length of each of these units it could not be weighed on the Swift & Company 45-foot scale platform.

To measure the quantity of soybeans delivered in a truckload the driver positioned his trailer on Swift’s scale, lowered its “dollie” wheels, and uncoupled the tractor at the 5th wheel. The tractor then was driven off the scale platform and the trailer weighed, separately. Hose and other flexible connections between the tractor and trailer were left in place. After weighing the trailer the tractor was backed up on the platform and reattached to the trailer at the 5th wheel. The truck was then taken to the dump area, the forward end of the trailer elevated, and the contents cargo dumped into the large pits. Since the Tri-County units were too large to be accommodated there, its trailers were dumped by use of their own internal hydraulic hoists.

After the soybeans were unloaded, the trailer body was lowered and the truck driven to the scale platform where the trailer again was detached from the tractor, the tractor driven from the scale platform, and the trailer reweighed.

The determination of the number of bushels of soybeans delivered was made by weight by subtracting the empty weight or “tare” of the trailer from its loaded weight or gross. The difference was the weight of the soybeans delivered.

In the foregoing manner Swift received from Tri-County 248 truckloads of soybeans between the dates in question—April, 1965, and December 29, 1966. It settled and paid Tri-County for 242 of these truckloads at the agreed contract price per bushel, but refused to pay for the remaining truckloads.

Swift & Company introduced evidence showing that Tri-County had ordered these two tractor-trailer units to be built specially by Converto Manufacturing Company with a 1,000-gallon liquid storage tank installed in the nose of each trailer, measuring 5' X &W X 7'* A second tank fitted on the back of the tractor had a small sleeper compartment built on its top. The tanks and fittings on Unit 4 were shown to have increased the basic cost of the unit from $9,000 to more than $19,000. The trailer tank was formed by a bulkhead and top with a separate partition and with a short tarpaulin covering the storage tank under the large tarpaulin which covered the entire trailer bed.

The evidence shows that from April, 1965, to March, 1966, Tri-County made all of its deliveries to Swift in Unit 1 and in both Units 1 and 4 from March, 1966. The storage tanks were removable but the evidence shows that they were left in place in the nose of the trailer interconnected with the storage tanks on the back of the tractors without removal.

During the times the units were so used they were frequently repaired for leaks by the manufacturer and by Freuhaul Trailer Company at Peoria. The cost of some of these repairs and payment of such items by TriCounty was shown in evidence.

Swift’s bean grader, who was the only Swift employee to inspect either trailer, on occasions removed the large tarpaulin from the trailer bed, but he did not become aware of the short tarpaulin covering the trailer storage tanks nor the tanks themselves. He testified that he did observe the partition in the nose of Unit 1 trailer. Upon inquiry he was informed by the Tri-County Unit 1 driver that the partition had been installed to prevent loading the truck all the way to the front so as not to be “too heavy” at the nose of the hydraulic cylinder to lift and to dump. On one occasion when the bean grader mentioned a leak in the connecting hose between the trailer and tractor, the driver told him he was carrying “liquid fertilizer.” On another occasion the bean grader “heard air hissing” from the bottom of the sleeper cab during an unloading operation and observed liquid bubbles formed along the seam and felt escaping air.

The evidence shows that fluids contained within the storage tank in the nose of the trailer could be transferred to and retained within the storage tank mounted on the tractor by operating a switch on the dashboard of the tractor. The dashboard switch opened and closed an electric valve which was mounted beneath the tractor storage tank and which controlled the flow of liquids from one tank to the other. Fluids contained in the trailer’s storage tank could be transferred into the tractor’s storage tank by opening the gate valve while the trailer body was being hoisted to the dumping position within the period of time required to dump the cargo of soybeans. The fluids could then be retained within the tractor storage tank by closing the gate valve before the trailer body was lowered into highway position.

The evidence shows that Tri-County did not advise Swift of the storage tanks mounted on its trucks nor the manner in which the tanks were interconnected so as to permit the transfer of fluids from trailer to tractor during the dumping operation. There appeared to be nothing about the appearance of either unit that would have suggested to an observer that the trucks were equipped to haul liquids nor to reveal the manner in which a fluid cargo might be transferred from the trailer to the tractor and back again.

The average tare weight of Unit 1 trailer approximated 11,900 pounds. Mr. Bracy, testifying for Tri-County, fixed the average “tare” of Unit 4 trailer at 13,000 pounds. The tare weights of the trailers would normally vary within 100 pounds of the average “tare” after the soybean cargo had been unloaded. The evidence shows, however, that on occasion the tare weight of the TriCounty trailers unexplainedly varied from their average empty weights. On November 23, 1966, the tare weight of Unit 4 was recorded as 14,060 pounds. On December 5,1966, the tare weight of Tri-County Unit 1 was recorded as 13,400 pounds, and on a second trip 13,480 pounds.

On December 29, 1966, Illinois State Police officers followed one of these units and advised Swift managers they suspected liquid storage tanks were concealed in the trucks. Prior to that time no one associated with Swift had any knowledge that the trucks were equipped to haul fluids which might be transferred to the tractor while the soybeans were being dumped. At the request of the State Police Swift continued to receive truckloads of soybeans from Tri-County which were segregated into an empty storage tank and reweighed in a railroad boxcar previously weighed empty.

Between December 30, 1966, and January 9, 1967, at the request of the State Police, Swift received 11 additional truckloads of soybeans, segregated them in an empty storage tank, and reweighed them on its truck scale. In each such instance the beans were substantially short weight. These 11 truckloads, the two received on December 29, 1966, and the four additional previously received and unpaid for, constituted the 17 truckloads of soybeans for which Swift refused to pay.

On January 9, 1967, a Tri-County driver was arrested by the State Police and Unit 1 seized after making its delivery to Swift. The State Police inspected the liquid storage tanks, finding therein a small amount of blue-green fluid. The soybean load delivered by the truck was found to be 4,460 pounds short weight.

Nine truckloads received by Swift between December 30, 1966, and January 9, 1967, were substantially short of net weight.

After Unit 1 was seized by the State Police it was examined by Professor Cletus Bowman of the University of Illinois, who testified that he found that the truck was so equipped that fluids could be transferred from the trailer tank to the tractor tank, without hoisting the trailer body, by means of a pump mounted on the back of the tractor; also that fluids could be retransferred from the tractor to the trailer by releasing a quiekdisconnect fitting at the trailer and inserting a short length of hose equipped with a similar fitting between a port on the pump and the trailer connection. Pictures of these fittings were introduced into evidence.

Swift offered to prove that similar deliveries by TriCounty to Ralston-Purina plants in Bloomington and Peoria, to A. E. Staley Company in Decatur, and to the Ta-bar Grain Company at Havana, during the same general periods, showed weight differentials in tare or empty weight of the trailer; and that there were large leakages of liquids from the connecting hoses between tractor and trailer. These offers of proof were refused. Swift contends error in such refusal.

Plaintiff’s president admitted that he had caused the tanks to be built on the trucks but contended that they were for the purpose of transporting antifreeze. He also stated that they were ordered to transport liquid fertilizer to market and in connection with a hog operation, but admitted that they were never so used and that the hog operation never came into existence. He denied that the tanks ever had been used for any purpose on any occasion other than transporting antifreeze. After the arrest of its driver on January 9, 1967, Tri-County returned its tractors to the lessor and the trailers to Converto Manufacturing Company. Tri-County ceased to do business in 1967.

Tri-County here sued Swift to recover payment for the 17 truckloads of soybeans allegedly delivered and not paid for in the amount of $31,142.26. Swift admitted it had not paid for the 17 truckloads of soybeans but denied that it received the number of bushels which plaintiff claimed were delivered in these loads. Swift also claimed it paid for 21,780 bushels of soybeans not actually delivered and asked that its excess payment therefor be setoff against any amount owing to plaintiff, and also counterclaimed for wilful and fraudulent misrepresentation of the quantity of soybeans delivered in the 259 truckloads allegedly causing actual damage of $95,000. Swift also prayed for exemplary damages of $200,000.

The jury returned separate verdicts on the complaint and the counterclaim, finding the value of the 17 truckloads unpaid for to be $26,920 and returning a verdict for plaintiff on its complaint in that amount. The jury also found in favor of Swift & Company on the counterclaim and assessed its actual damages at $53,240.

The trial court ruled that the issue of exemplary damages was not properly raised by the pleadings and refused to give Swift’s tendered instructions on exemplary damages. Swift now asserts that the trial court erred in refusing to submit the issue of exemplary damages to the jury and in refusing the tendered instructions on such matter. Upon oral argument, however, Swift waives this error in the event this court should order a net judgment for it on the other issues.

The trial court entered judgment in favor of TriCounty in the amount of $26,920. It set aside the jury verdict for Swift & Company on the counterclaim. Swift appeals.

Swift & Company contends that only one verdict and one judgment should have been returned and entered where both the claim and counterclaim arose from the same series of transactions and where the litigation would resolve all rights of the parties. It further contends that fraud is seldom susceptible of proof by direct evidence and that the jury verdict for it on the counterclaim should not have been set aside when the evidence here is viewed in its aspect most favorable to the plaintiff. Hence, it argues that one judgment should have been entered—and that a net judgment favorable to defendant-counterclaimant, Swift & Company. We agree.

The verdict of the jury in favor of Swift & Company on its counterclaim should not have been set aside. A judgment notwithstanding a jury verdict ought to be entered only in those cases in which all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. The evidence here shows misrepresented quantities of soybeans were charged for by Tri-County. Fraud seldom can be shown by direct evidence. We cannot conceive of any more persuasive case of fraud than was circumstantially proved in this case. The shifting of fluid to cause a false weight of grain—conceived, concealed and performed so ingeniously as the evidence here shows was carried out by Tri-County—overwhelmingly constituted ample proof of fraud and money damages to Swift & Company. The jury verdict on the counterclaim should not have been set aside. We view the evidence as indeed overwhelming.

Whenever the fact of injury or damages has been proved with reasonable certainty, some uncertainty as to the amount of damages sustained is not sufficient ground to set aside a jury verdict awarding damages. A party cannot be permitted to escape liability for his wrongful acts simply because the plaintiff’s damages are difficult to prove. The “best evidence” which the nature of the subject will permit in such cases is sufficient to sustain a jury award. Johnston v. City of Calva, 316 Ill 598, 147 NE 453, 38 ALE 1384 (1925). This is clearly the correct rule where the verdict of the jury is not clearly excessive. Novitsky v. Boland, 322 Ill App 698, 54 NE2d 619 (1st Dist 1944); Avrams v. Fuller, 325 Ill App 694, 60 NE2d 644 (1st Dist 1945). Tri-County can hardly be heard to complain of any reasonable rule on damages when damages are made difficult to ascertain by its misconduct.

The more certain is the rule where a wrongdoer’s acts appear to be deliberate or wilful. 22 Am Jur2d, Damages, §§22-23; Story Parchment Co. v. Paterson Parchment Paper Co., 282 US 555 (1931); Bigelow v. RKO Radio Pictures, 327 US 251, 66 S Ct 574 (1946). The ingeniousness and the cleverness of concealment here practiced cry out for the application of the rule. The jury verdict was not contrary to the fair weight of the evidence and its reasonable inferences. The trial court committed reversible error in allowing the motion for judgment notwithstanding the verdict.

When a claim and a counterclaim—part of a single controversy between the same parties—are tried in the same action, only one judgment is proper. Where the counterclaim is less than the plaintiff’s demand the plaintiff should have judgment for the difference. If it exceeds the claim established by the plaintiff the defendant should have a judgment for the difference. 20 Am Jur2d, Counterclaim, Recoupment, and Setoff, § 157, at 364; 80 CJS, Setoff and Counterclaim, § 61c; Corcoran v. Lehigh & Franklin Coal Co., 138 Ill 390, 28 NE 759 (1891); Apex Motor Fuel Co. v. Stiglitz, 348 Ill App 123, 108 NE2d 29 (1st Dist 1952); Lipton v. Pennsylvania Rubber Co., 1 Ill App2d 223, 116 NE2d 923 (1st Dist 1953). There is no necessity to pass upon the other grounds of error asserted.

The trial court should not have set aside the verdict in favor of Swift & Company on the counterclaim but should have entered a net judgment in favor of defendant, Swift & Company, for the difference between the jury verdict of $53,240 in its favor on the counterclaim and the verdict of $26,920 against it and in favor of the plaintiff on the original complaint. The judgment of the circuit court of Champaign County is reversed and this cause is remanded to that court with directions to enter a net judgment in accordance with the views herein expressed.

Reversed and remanded with directions.

SMITH and TRAPP, JJ., concur.