text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis Rambo, Defendant-Appellant.
    Gen. No. 53,712.
    First District, Third Division.
    April 16, 1970.

      George J. Cotsirilos and S. Jack Micheletto, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and John McClory, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Dennis Rambo, after a trial without a jury was found guilty of murder and sentenced to the Illinois Youth Commission for a term of fourteen years to fourteen years and a day. One of his contentions on appeal is that he did not expressly and understandingly waive his constitutional right to be tried by a jury. Because of our decision on this point, the facts surrounding the homicide become immaterial and the other errors advanced as reason for reversal need not be considered.

Preliminary to the trial, the following took place:

The Clerk: “People of the State of Illinois versus Dennis Rambo, Indictment 67-3087.”
The Court: “Is that a jury trial?”
Assistant State’s Attorney: “No, it is a bench trial, your Honor.”
The Court: “Mr. Rambo, you are entitled to have your case tried by a jury. You understand that?”
The Defendant: “Yes Sir.”
The Court: “Twelve citizens over there. Now I guess your lawyer has explained it to you: You have a right to trial. If you want to waive the jury the Court will hand to your counsel a jury waiver at this time and ask for your signature at the appropriate place, if that is what you want.”

The statute implementing the constitutional right to a jury trial provides that every person accused of a criminal offense shall have the right to such a trial unless understandingly waived by him in open court. Ill Rev Stats 1967, c 38, par 103-6. It is the responsibility of the trial court to see that a defendant’s election to waive a jury trial is not only understandingly but expressly made. People v. Clark, 30 Ill2d 216, 195 NE2d 631 (1964); People ex rel. Swanson v. Fisher, 340 Ill 250, 172 NE 722 (1930). Whether such a waiver has been understandingly made depends upon the facts and circumstances of each case. People v. Wesley, 30 Ill2d 181, 195 NE2d 708 (1964); People v. Spencer, 115 Ill App2d 398, 253 NE2d 672 (1969).

The court adequately informed the defendant of his right to a jury trial, but did not ask him if he wished to waive that right. Neither the defendant nor his counsel said that a jury trial was to be waived. The absence of an inquiry by the court and a response by the defendant or his counsel leaves the record barren of an express oral waiver.

The defendant did sign the printed jury waiver, but the mere signing of this form does not fulfill the requirement of the statute. The record does not show that the defendant did anything more than sign the form in the appropriate place as requested by the court. The waiver was not read to him, there is no indication that he read it himself, and it was accepted without ascertaming whether he understood what he had signed.

There is no statutory provision in our State for a written jury waiver. In 1893 a statute was enacted which required the waiver of a jury trial to be “a formal waiver in writing.” Laws of 1893, page 96. This applied to misdemeanor cases only, for it was then the law of Illinois that a jury could not be waived in felony cases. The statute was construed as applying only to those misdemeanors punishable by imprisonment (Jacobs v. The People, 218 Ill 500, 75 NE 1034 (1905)) and in 1922 the statute was declared unconstitutional. Sturgis v. Burn Mfg. Co. v. Pastel, 301 Ill 253, 133 NE 762 (1921). Although the statute was held to be unconstitutional in 1922, it was not repealed by the legislature until 1939. Defendants who orally waived jury trials between 1922 and 1939 frequently contended that error was committed by the failure of the trial court to require formal written waivers. E. g., People v. Berkowski, 385 Ill 392, 52 NE2d 710 (1944); People v. Thompson, 398 Ill 114, 75 NE2d 345 (1947). The courts, however, held from 1922 on that jury waivers could be oral or written and that no particular form was necessary. The People ex rel. Crowe v. Fisher, 303 Ill 430, 135 NE 751 (1922); People v. Deese, 402 Ill 200, 83 NE2d 707 (1949).

A written waiver, as well as an oral waiver, may be an express waiver if it is properly and knowingly made; but signing a printed form has become such a routine formality that a perfunctory signing—without proof that the form was read by the defendant and understood by him—cannot be accepted as a substitute for an express waiver, understandingly made after careful interrogation by the court.

The defendant was sixteen years old. He was charged with murder. His youth and the gravity of the offense called for extra care in discharging the duty imposed on the court to be certain that the defendant’s waiver of a jury trial was made understandingly. In Patton v. United States, 281 US 276 (1930), the court said:

“Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective . . . [the court must have] . . . the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.”

A forceful argument can be made in the instant case that a jury trial was understandingly waived: The defendant understood his right to a jury trial; he ,was told to sign the waiver if he wanted to waive the jury; he was represented by counsel; he signed the waiver; in light of the court’s explanation and the presence of his counsel it could be inferred that he knew what he was doing when he signed the waiver. It also could be inferred that the right to a jury trial was explained to him by his counsel. This inference is bolstered by the court’s remark the day of the trial, “I guess your lawyer has explained it to you,” and by a colloquy between the court and counsel the day before the trial:

The Court: “Hold it on the call for a bench trial tomorrow.”
Assistant State’s Attorney: “Just for the record since we do have a minor defendant. I am sure you discussed this with him, the decision concerning a bench trial or jury trial; I would assume you also discussed this with the defendant’s parents.”
Defense Counsel: “Wehave.”
The Court: “Very well. Hold it for tomorrow.”

Although the inferences which can be drawn from the quoted record may explain why the defendant was not asked in open court whether he wished to waive a jury and why he was not asked whether he had read and understood the signed waiver, they cannot take the place of these inquiries. And any inference that he might have knowingly waived his right to a jury trial cannot prevail in face of the record which shows no overt expression on the day of the trial by him or his counsel that the right was waived. Doubt about the waiver of a constitutional right must be resolved in favor of the accused. It has been held that the record must affirmatively show that a waiver of a constitutional right has been voluntarily and understandingly made (Boykin v. Alabama, 395 US 238 (1969)), that courts must indulge every reasonable presumption against the waiver of fundamental constitutional rights (Johnson v. Zerbst, 304 US 458 (1938)) and that presuming waiver from a silent record is impermissible. Miranda v. Arizona, 384 US 436 (1966).

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

Reversed and remanded.

SCHWARTZ and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Maria Santiago, Plaintiff-Appellant, v. Package Machinery Company, a Corporation, Defendant-Appellee.
    Gen. No. 53,063.
    First District, Third Division.
    April 16, 1970.

      Louis G. Davidson, of Chicago (Eugene I. Pavalon and Sidney Robin, of counsel), for appellant.
    Gerard E. Grashorn, of Chicago (Edward J. Wendrow, Winston, Strawn, Smith & Patterson, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff sues to recover for injuries sustained when the lower part of her right arm was crushed between the die plates or molds of a plastic injection molding machine built by the defendant. Count I of the complaint charged the defendant with negligence in the design and manufacture of the machine. Count II charged that defendant was strictly liable for plaintiff’s injuries in that the machine was defective and unsafe when it left defendant’s possession and control. Following the return of a verdict for defendant, a motion for new trial was denied, judgment was entered on the verdict and the plaintiff has appealed. She contends that the trial court erred (1) in admitting certain evidence which it is charged had the effect of wrongfully interjecting an issue as to her employer’s negligence, and (2) in admitting testimony in violation of the rule against hearsay as to the practice prevailing in the industry concerning the installation of a safety device on machines of the type here involved. The facts follow.

On November 6, 1961, defendant sold a plastic injection molding machine to plaintiff’s employer, Romar Plastic Company. The machine had been designed and manufactured by defendant and was known as Model 175 TA. It was installed on Romar’s premises and was ready for operation on December 7, 1961. On August 24, 1964, while operating the machine in the course of her employment, the lower part of plaintiff’s right arm was crushed between the die plates of the machine. There are only two die plates in the machine, one of which is movable. When the operating cycle is begun, the movable die plate is brought up flush with the stationary die plate by means of hydraulic pressure. These two plates thus form a completed mold into which heated plastic in a semi-liquid state is pumped. After the plastic cools, the movable die plate automatically returns to its original position, thereby permitting the operator to manually remove the finished parts from the stationary mold. Plaintiff was attempting to do that when the movable die plate unexpectedly closed upon the stationary die plate, causing the injury for which she now seeks redress.

The machine was equipped with a “safety gate” or shield mounted on two horizontal guide rails by means of four rollers, one positioned at each corner of the gate. The safety gate acted as a physical barrier to the operator so that access to the die plates was impossible once the operational cycle had begun. To operate the machine the plaintiff would grasp the safety gate which was at her left as she faced the machine from the operator’s station and draw it across in front of her until it made contact with a stopping block. The gate was now between the operator and the molding area of the machine and was said to be in its “closed” position. In that position access to the die plates was impossible. A beveled projection or cam was mounted at each corner on the bottom edge of the gate. When the gate is in the closed position, each of these projections depress the lever arm of a stationary limit switch which is mounted directly beneath it on the body of the machine. It is only when the safety gate is at the extreme right in the closed position that the limit switches will be simultaneously activated.

The limit switches are designated as follows: when the gate is in the closed position, LS-1 is under the cam on the right corner of the gate and LS-2 is under the cam on the left corner. These switches are wired in series and are the heart of the electrohydraulic interlock safety system. When it is operating properly the lever arms of both limit switches must be simultaneously depressed to complete a circuit that activates a hydraulic pump, thereby causing the movable die plate to close upon its stationary counterpart. The machine was designed so that this could only be accomplished by placing the safety gate in the extreme right or closed position. If either lever arm is depressed independently of the other, the circuit will not be completed and hence the movable die plate will not be activated.

Limit switches LS-1 and LS-2 are identical in construction. When standing upright and viewed from the front, the movable lever arm of the switch can be mounted in either a two o’clock or ten o’clock position. The switches contain a single movable contact point which will normally come to rest on either of the two stationary contact points, depending on the placement of the return spring. That spring can be mounted on either the right side or “mode” or the left side or “mode” of the limit switch. It is imperative that this spring be mounted in the left mode and that the lever arm be placed in the two o’clock position on both LS-1 and LS-2 for the safety mechanism to be fully effective.

Albert Neumann, a serviceman for the defendant, testified that the day after plaintiff was injured he went to Komar’s plant and inspected the machine in question. He noticed that the bottom roller on the right side of the safety gate was missing and that the roller on the upper right corner of the gate no longer engaged its guide rail, thereby permitting the right side of the gate to hang down about six inches lower than normal. He also observed that the return spring in limit switch LS-1 was in the right side or “mode” of the switch, instead of the required left side and that the lever arm of the switch was in the eleven o’clock position, rather than the prescribed two o’clock position. When a limit switch is assembled in that fashion it cannot serve the safety purpose for which it was intended. Neumann testified that limit switch LS-2 was assembled correctly and operating properly. Due to the improper assembly of limit switch LS-1, he was able to activate the movable die plate by manually depressing the lever arm of limit switch LS-2, even though the safety gate was open. He testified further that limit switch LS-1 was a replacement switch which was not a part of the machine’s original equipment and which had evidently been installed by some unknown person. He reached that conclusion when he noticed it was painted gray, whereas the rest of the machine, including LS-2, was painted green. While he was at the plant he mounted the safety gate and reassembled limit switch LS-1 in accordance with defendant’s specifications.

It is undisputed that the machine was not equipped with a safety device known in the industry as an “interference bar.” That device consisted of a flat steel bar which acted as a physical barrier to the movable die plate while it was in the open position, thereby preventing it from beginning another operational cycle until removed from its path. That mechanism was mechanical in operation and did not depend upon either an hydraulic system or an electric circuit for it to function. Such an interference bar could be installed on a plastic injection molding machine in addition to any electrohydraulic safety mechanism already a part of the machine, but it would perform its safety function only in those situations in which there had been a failure in the electrohydraulic system. As such, its function is supportive or secondary to the electrohydraulic system. We proceed to a consideration of plaintiff’s points.

Plaintiff contends that the trial court erred in admitting evidence which in her words “allowed the defendant to interject the negligence of the plaintiff’s employer as a defense.” Three occasions on which such evidence is said to have been erroneously admitted are cited in the record. In support of her contention the plaintiff relies on Rylander v. Chicago Short Line Ry., 17 Ill2d 618, 161 NE2d 812; Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717; and Romine v. City of Watseka, 341 Ill App 370, 91 NE2d 76. Defendant, on the other hand, contends that it is always permissible to admit evidence offered for the purpose of proving that the conduct of another was the sole proximate cause of the injury.

In Rylander the plaintiff’s injuries were allegedly caused by the defendant railroad’s negligence in delivering a defective tank car to the plaintiff’s employer. The injury occurred when the plaintiff fell from the car while in the course of his employment. The issue there presented was the effect of the Workmen’s Compensation Act upon a common-law action for negligence brought by an employee injured in the course of his employment by someone other than his employer. The court did not consider the admissibility of evidence offered to prove that the sole proximate cause of the plaintiff’s injuries was the negligence of his employer. Nor did the court discuss the propriety of asserting that defense.

In Hulke the action was based on the negligence of the defendant manufacturer. The plaintiff’s employer had made several Workmen’s Compensation payments to him for the injuries which were sustained in the course of his employment. One of the issues before the court was the employer’s right to reimbursement for payments made pursuant to the Workmen’s Compensation Act when a proximate cause of the employee’s injuries was the negligence of some other person. The court said that any right to reimbursement existed by reason of the employer’s partial subrogation to its employee’s cause of action and that such right was barred if the employer’s negligence contributed to the injury. The court reasoned that since the negligence of the plaintiff’s employer could “in no way affect the liability” of the defendant manufacturer it was a “collateral issue” and therefore not a proper defense to the employee’s action. The court did not consider whether the defense would have been proper in a case in which the defendant asserted that the employer’s negligence was the sole proximate cause of the injury.

In Romine the plaintiff, a minor five and one-half years old, brought an action by his guardian for personal injuries sustained when he fell from a truck driven by his father. The court said that in an action brought by a minor under seven years of age, who is therefore legally incapable of being contributorily negligent, the general rule is that the contributory negligence of his parents cannot be imputed to him. One exception to that rule was said to arise when the negligence of the parents is the sole proximate cause of the injury. Nowhere does the court say that evidence offered to prove that the sole proximate cause of the injury was the negligence of another is inadmissible.

The instant case was tried on two counts—one charging negligence and the other charging strict liability in tort. If the plaintiff is to prevail, she must prove that her injuries were proximately caused by defendant’s negligence. (McInturff v. Chicago Title & Trust Co., 102 Ill App2d 39, 243 NE2d 657) or by a condition of the product which was unreasonably dangerous and in existence at the time it left the defendant’s control. Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182; Brandenburg v. Weaver Mfg. Co., 77 Ill App2d 374, 222 NE2d 348. Manifestly, then, the defendant could avoid all liability by proving that the sole proximate cause of the injury was the conduct of another. We find no error in the admission of evidence supporting this contention.

Plaintiff argues it was error for defense counsel to read in the presence of the jury a paragraph from a book not in evidence. The record shows that while Olmsted, defendant’s chief product engineer since 1952, was undergoing redirect examination, defense counsel read from a book entitled, “Plastic Safety Handbook,” published in 1959 by the Society of the Plastic Industry in cooperation with the National Safety Council. The witness was asked:

“And are you familiar with the following provision which is in this book, and were you back in ’60 and ’61:
‘Safety devices of any nature are as good as the maintenance. The operational safety devices should be checked, at least every day, preferably after each hour shift, to make sure they are working properly.’ ”

Plaintiff’s objection to that question was overruled and Olmsted answered, “Yes.” Prior to that time plaintiff’s attorney had introduced a “data sheet” published by the National Safety Council which was admitted into evidence. Paragraph thirteen of that sheet provides for maintenance of the safety devices in language the meaning of which is indistinguishable from that used by defense counsel. Plaintiff cannot be heard to complain of that evidence since she introduced substantially similar evidence. Powell v. Weld, 410 Ill 198, 101 NE2d 581; Hadie v. Erlandson, 41 Ill App2d 328, 190 NE2d 848.

Plaintiff also contends that the trial court erred in permitting the defendant to cross-examine one of her witnesses regarding several provisions found in an instruction manual for a machine other than the one in question. The record shows that the witness Ronald Swanson, a foreman employed by plaintiff’s employer, who was on duty at the time the plaintiff was injured, was asked by defense counsel if he ever read anything in the instruction manuals which accompanied the various machines, recommending daily inspection of the safety gate and its rail guides. Swanson recalled reading that recommendation in the instruction manuals, but he had never made any safety inspections. At that point plaintiff’s counsel interposed an objection and requested production of the manual referred to. The ensuing colloquy revealed that the manual for the defendant’s plastic injection molding machine Model 175 T contained the specific recommendations which formed the basis of counsel’s questions, whereas the manual for the machine in question in this case (Model 175 TA) recommended daily inspection of the “main assemblies of the safety gate and the safety bar stop arrangement.” The only relevant difference in the provisions of the two manuals is that the “assemblies” referred to in the manual for Model 175 TA are named in the manual for Model 175 T. It appears to be an insubstantial difference. Admission of such evidence must rest largely in the discretion of the trial court. We find no error in the court’s ruling on this point.

Finally plaintiff argues that Olmsted, defendant’s chief product engineer, as hereinbefore noted, was permitted to testify in violation of the hearsay rule, that it was not the industry’s practice to install “interference bar” safety devices on plastic injection molding machines prior to 1961, the year the machine in question was sold to plaintiff’s employer. The record shows that while testifying on direct examination Olmsted was asked if such a safety device was installed by other manufacturers prior to 1961 and that he responded, “not to my knowledge.” On cross-examination he testified that he had personally examined the industry literature dealing with safety equipment which was in use and new types which were available. At a later point in his cross-examination he testified that he had no knowledge of the precise dates when other named manufacturers first began installing such “interference bars” and admitted that the only way he learned of those approximate dates was through the company’s servicemen in the field. It is not clear that all of Olmsted’s testimony as to the installation of safety bars was based on firsthand knowledge, but in the admission of testimony as to what constitutes general practice in an industry, some latitude must be granted to the trial court. We find no error of substance.

The judgment is accordingly affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMABA, J., concur.


text:
    Joan Kuhl, Plaintiff-Appellee, v. James Yates and Hester Yates, Defendants-Appellants.
    Gen. No. 68-96M. (Abstract of Decision.)
    Fifth District.
    April 17, 1970.
    Edgar R. Kelly, of East Alton, for appellants; Wiseman, Shaikewitz & McGivern, of Alton, for appellee.
   Opinion PER CURIAM. Not to be published in full.


author: GOLDENHERSH, J.

text:
    Mildred Stammer and Leo Stammer, Plaintiffs-Appellants, v. General Motors Corporation, a Corporation, and L. R. McKinley & Sons, Inc., a Corporation, Defendants-Appellees.
    Gen. No. 69-35.
    Fifth District.
    April 17, 1970.
    Rehearing denied May 21, 1970.
    Sam S. Pessin, of Belleville, for appellants.

      Wagner, Conner, Ferguson, Bertrand & Baker, of Belleville (John D. Bauman, of counsel), and Pope & Driemeyer, of East St. Louis (John T. Pierce, Jr., of counsel), for appellees.
   GOLDENHERSH, J.

Plaintiffs appeal from the judgment of the Circuit Court of St. Clair County entered upon allowance of defendants’ motions for directed verdicts made at the close of the plaintiffs’ case.

This action was brought by plaintiff, Mildred Stammer, to recover damages for personal injuries suffered when a Chevrolet automobile driven by her stalled on a railroad crossing allegedly as the result of a defective automatic choke. The defendant, L. R. McKinley & Sons, Inc., hereafter called McKinley, is the dealer from whom the automobile was purchased. Plaintiff, Leo Stammer, seeks to recover for the damage to the automobile.

Plaintiffs’ multiple-count complaint pleads their case on theories of negligence, breach of warranty and strict liability.

The evidence shows that plaintiff, Leo Stammer, received delivery of a new Chevrolet on July 20, 1964. He drove the automobile home from defendant McKinley’s place of business. On this trip, approximately 5 miles in length, he experienced no difficulty with the automobile. He did not drive it again until approximately one week later. On that occasion, it “died on me.” He then started driving it to and from his place of employment. He did not recall what days, but it “died on me around seven or eight times during the period I started driving it until the accident.” This usually happened while he was “going to a stop sign or backing out of the driveway.” When the car stalled “I would turn the key and it would seem it would turn over eight or nine times before it would start.” He always used Ethyl gasoline. He had not done anything to the motor, the fuel system or the choke. He did not, at any time, return the car to McKinley or see a mechanic. He had been told that if there were things wrong with the automobile to “mark it down” and it would be taken care of on the 1,000 mile checkup. He had warned his wife (the plaintiff, Mildred Stammer) that the car stalled and died. At the time of the occurrence the odometer registered 327 miles.

Mildred Stammer testified she had driven automobiles for approximately 14 years. She had driven the new Chevrolet several times prior to August 17, 1964, and had no trouble with it. August 17 was a very warm day. At approximately 9:00 a. m. when she backed the car out of the garage it “just stalled.” She drove approximately 12 miles without further difficulty. At about noon she drove to a shopping center where the automobile remained parked for approximately one hour. She then drove to the intersection of North Belt and North Illinois Streets in Belleville, and turned south onto North Illinois Street. Traffic was heavy. When she was approximately two blocks north of the L. & N. crossing she saw the crossing lights flashing. The traffic was moving very slowly “and it seems like I had my foot on the brake more than I had it on the gas pedal, and it was like stopping and going.” When her car was three feet north of the railroad track she stopped, and “when I stopped the car motor just died. So, I thought I would restart the car and I took my foot off of the brake and when I took my foot off of the brake the car rolled right onto the tracks, and the very minute the car rolled on the tracks I heard a train whistle.” Prior to hearing the whistle she had not seen a train coming from either direction. She saw a train approaching from the left, stepped out of the automobile and remembers nothing further.

On cross-examination Mrs. Stammer testified that the automobile was equipped with automatic transmission, when it stalled it was in “drive,” she put it in “neutral” and it rolled down the incline to the track. She did not use the “park” gear or the emergency brake.

Plaintiffs called a witness to whom their counsel propounded a hypothetical question and who stated that he had an opinion as to the cause of the stopping of the automobile. The court sustained objections to the question asking him to state the opinion. Plaintiffs made offer of proof that if permitted so to do the witness would state that in his opinion the difficulty with the automobile was a defective automatic choke.

It is plaintiffs’ theory on appeal that the trial court erred in excluding the opinion testimony, and the evidence was sufficient to make a prima facie case.

Obviously the evidence adduced would not sustain plaintiffs’ case on either a negligence or breach of warranty theory. In Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182, at page 623, the Supreme Court said, “The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.”

The duty imposed upon a manufacturer is to make the product safe for the purpose for which it is supplied, and it is defective if it fails to perform in the manner reasonably to be expected in light of its nature and intended function. Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill2d 339, 247 NE2d 401. It has long been the rule that the defective condition of a product can be proved by circumstantial evidence, Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847. However, in view of the conclusion which we have reached it is not necessary to decide whether the evidence is sufficient to prove a defective condition or that it existed when it left defendant’s control.

Mrs. Stammer’s testimony shows clearly that the automobile rolled onto the crossing when she took her foot off the brake, while the car was in “neutral” gear and while the engine was not running. The same thing would have occurred had she taken her foot off the brake while the engine was running and while the car was in either “neutral” or “drive” gear. Under the circumstances plaintiffs failed to prove “their injury or damage resulted from a condition of the product” as required by Suvada and the court did not err in directing the verdicts.

For the reasons stated the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: TRAPP, J.

text:
    Irwin L. Salk, et al., Plaintiffs-Appellants, v. Department of Registration and Education of the State of Illinois, Paul E. Passini, Chief Investigator of the Department of Registration and Education of the State of Illinois, John C. Watson, Director of the Department of Registration and Education of the State of Illinois, and Edwin A. Moll, Defendants-Appellees.
    Gen. No. 52,888.
    First District.
    April 17, 1970.
    Rehearing denied June 22, 1970.

      Silverstein, Stein and Brown, of Chicago (Jesse H. Brown, of counsel), for appellants.
    William J. Scott, Attorney General of State of Illinois, and Mitchell Leikin, of Chicago, (Francis T. Crowe and Donald J. Veverka, Assistant Attorneys General, of counsel), for appellees.
   TRAPP, J.

Plaintiffs’ complaint for declaratory judgment and injunction was dismissed by the trial court in a final and appealable order. They appeal.

On July 11, 1967, the Department of Registration and Education (herein called the Department), on the relation of its chief investigator, prepared charges against the several plaintiffs alleging violation of the statute relating to the practice of optometry. Such charges were served with notice that the Optometry Examining Committee of the Department would hold a hearing on July 20,1967, at a stated hour and place, to determine whether the respective certificates of registration as optometrists should be suspended or revoked.

It appears that all plaintiffs are licensed optometrists; that the plaintiff, Salk, is licensed to practice optometry at some thirteen addresses in the City of Chicago, and that each of the remaining plaintiffs is an employee of Salk, licensed to practice optometry at such address as is specified.

It is further alleged that Lee Optical Company is a corporation organized for the manufacture and sale, at wholesale and retail, of optical goods and maintains such businesses at each of the several addresses.

It is charged by the Department that there is an “office association” of the several plaintiffs as practicing optometrists with Lee Optical Company; that there is such referral and recommendation of one to the other so knowingly arranged and established that economic advantage was obtained over other practicing optometrists through street window advertising of a commercial nature, display of spectacles, frames and lenses and optical merchandise in the reception room and outside of the offices of plaintiffs in violation of chapter 91, § 105.13 (m) and (r); and that such conduct and advertising was designed, intended and carried on as a practice of optometry under the name of Lee Optical Company in violation of §. 105.13(i), (j) and (r).

It is charged in the alternative, that the plaintiffs are each practicing optometrists in offices located within the premises of Lee Optical Company, and that there is association with the latter corporation located in the same building, with a common front and with a sign overhanging both offices in violation of § 105.13 (i).

On July 17, 1967, while the Department’s proceedings were pending hearing, plaintiffs filed their complaint for declaratory judgment and injunction which alleges that Salk practices optometry in offices at the several addresses as a tenant under written leases with Lee Optical of Missouri, Inc., but that there is no relationship between Lee Optical and the plaintiffs in the practice of optometry at the several offices.

A copy of a typical lease is attached to such complaint, but the description of the leased premises is nothing more than a street address. Plaintiffs do not deny the departmental charge that the several offices of the plaintiffs are located within a common front or as a part of the premises of Lee Optical Company. The lease provides that the leased offices are to be occupied, “. . . as exclusive optometric offices.”

Plaintiffs contend that nothing in the statute authorizes revocation of an optometrist’s registration because of use of premises adjoining an optician, and that as a matter of law, the Department has exceeded the powers granted to it. Upon such premises, the plaintiffs sought to have the trial court enter declaratory judgment that the acts and practice of the plaintiffs were lawful under the statute.

We review the judgment of the trial court in the context of the rule that the denial or granting of a declaratory judgment is a matter of the court’s discretion and will not be disturbed unless the record shows an abuse of such discretion. Interlake Iron Corp. v. Dravo Corp., 68 Ill App2d 167, 215 NE2d 137; Hoerdt v. City of Evanston, 99 Ill App2d 307, 241 NE2d 685; Bathe v. Stamper, 75 Ill App2d 265, 220 NE2d 641.

It is also the rule that proceedings in declaratory judgment may not be used to avoid or oust pending proceedings before administrative agencies acting under grant of statutory authority. Eckells v. City Council of East St. Louis, 23 Ill App2d 360, 163 NE2d 107; Bathe v. Stamper, 75 Ill App2d 265, 220 NE2d 641; Hoerdt v. City of Evanston, 99 Ill App2d 307, 241 NE2d 685, and Fairbanks, Morse & Co. v. Freeport, 5 Ill2d 85, 125 NE2d 57.

The plaintiffs do not attack the overall validity of the statute regulating the practice of optometry, but only contest the validity of the application of the statute to the facts here presented. In such circumstances, the plaintiffs must pursue the administrative remedies for the reason that the determination of the issue depends upon factual matters which the specialized agency is better qualified to determine. Bank of Lyons v. County of Cook, 13 Ill2d 493, 150 NE2d 97; Bright v. City of Evanston, 10 Ill2d 178, 139 NE2d 270.

The charges framed by the Department are not directed to the landlord-tenant relationship asserted, but are framed in terms of the conjunction between the practice of optometry and optical merchandising, the street advertising and the display of optical merchandise which suggests that optometric services are supplied at the several addresses and the association as optometrists with a business entity which is not called upon to comply with the statute.

The courts have frequently approved of the policy which seeks, “. . . to raise the treatment of the human eye to a strictly professional level and to free the profession from the taint of commercialism.” Williamson v. Lee Optical of Oklahoma, 348 US 483, 99 L Ed 563; Roberts Optical Co. v. Department of Registration, 4 Ill2d 290, 122 NE2d 824, and to safeguard against practices which demoralize the profession, Klein v. Department of Registration, 412 Ill 75, 105 NE2d 758.

It is alleged and argued that plaintiffs will not be able to obtain a fair hearing before the Examining Committee for the reason that the members of such Committee are competitors and members of the Illinois Optometrie Association and that it is useless to proceed. We note that the members of the Examining Committee are named in the departmental charges filed, but that there has been no motion to disqualify any member for prejudice, Smith v. Department of Registration and Education, 412 Ill 332, 106 NE2d 722; and no issue of the competency or ability of any Committee member is raised, Schyman v. Department of Registration and Education, 9 Ill App2d 504, 133 NE2d 551.

Absent a factual showing of prejudice or incompetence of a Committee member, our acceptance of plaintiffs’ argument as a basis for decision would destroy the statutory scheme for professional discipline in the fields of medicine, architecture, engineering, dentistry and accountancy where the Department is required to act upon the basis of the report of a committee comprised of members of the profession. Chapter 127, §§60 and 60a, Ill Rev Stats 1965.

We have examined and considered authorities cited by plaintiffs as holding that a party is not required to exhaust administrative remedies where such would be a useless act, including People ex rel. Hurley v. Graber, 405 Ill 331, 90 NE2d 763; Cordes v. Isaacs, 27 Ill2d 383, 189 NE2d 236 and High Meadows Park, Inc. v. City of Aurora, 112 Ill App2d 220, 250 NE2d 517. We do not find them persuasive upon the issue. In Graber and Isaacs, the court found no administrative authority to perform the act at issue. In City of Aurora, the zoning ordinance prohibited the use which was before the court. The proceedings here are pursuant to specific statutory authority in the administrative agency.

Since we find no abuse of discretion in the order denying declaratory judgment, it is unnecessary to review the denial of the injunction.

The judgment of the trial court is affirmed.

Affirmed.

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

       Chapter 91, § 105.13, Ill Rev Stats.
      “ (i) Association as an optometrist with any person, firm or corporation violating this Act;
      “(j) Violation of any of the provisions of this Act;

        “ (r) The performance of optometric service in conjunction with a scheme or plan with another person, firm or corporation known to be advertising in a manner contrary to this Act or otherwise violating the laws of the State of Illinois concerning the practice of optometry.”


author: STOUDER, J.

text:
    Lonnie Barrett, Jr., Plaintiff-Appellant, v. Guaranty Bank & Trust Company, Defendant-Appellee.
    Gen. No. 53,163.
    First District.
    April 17, 1970.

      Helmut Eifert, of Chicago, for appellant.
    Goldberg, Weigle, Mallin, Gitles & Parson, of Chicago (John Hudson and Terence J. Anderson, of counsel), for appellee.
   STOUDER, J.

Plaintiff-Appellant, Lonnie Barrett, Jr., commenced this action in the Circuit Court of Cook County, against Guaranty Bank & Trust Company, Defendant-Appellee, seeking to recover for the alleged violation of chapter 74, section 6, Ill Rev Stats 1967 (Interest Act). The court dismissed plaintiff’s complaint for failure to state a cause of action and it is from this judgment that this appeal follows.

The facts are undisputed. On May 6, 1960, defendant extended to plaintiff a construction loan of $25,000, at an interest rate of 6y%% per annum. This was a loan for 74 days. In addition to the interest, defendant charged plaintiff a “bank fee” of 3% of the loan or $750. The construction loan was, by mutual agreement, extended for short periods of time and the interest rate was increased to 7% per annum. Two “extension fees” were charged in February and May of 1961, in the amounts of $500 and $549, respectively.

In September, 1962, the principal balance of the construction loan, plus accrued interest thereon, plus the bank fee and the extension fees, plus further advances of money made by defendant to plaintiff were converted into a secured loan of $41,000, payable in monthly installments at an interest rate of 7% per annum. Plaintiff made the monthly payments required, including principal and interest, through and including May, 1966.

The complaint alleged that the “bank fee” and “extension fees” were usurious, that such usurious charges were extended and included in the existing loan and that the defendant’s receipt of interest and the plaintiff’s obligations with respect thereto are continuing violations of the Interest Act (c 74, Ill Rev Stats 1963). Recovery of a penalty was sought as provided by the 1963 amendment of § 6, c 74, Ill Rev Stats 1963.

The trial court dismissed the complaint for failure to state a cause of action and on appeal plaintiff argues that this ruling was erroneous. Before discussing such assignment of error, it is necessary to consider the procedure involved since plaintiff also argues that it was erroneous.

With respect to the procedure in the trial court it appears that plaintiff filed his complaint together with a jury demand in June, 1967. Defendant was served with summons on June 30, 1967, but filed no appearance, answer or other pleading. On August 14, 1967, at the request of plaintiff, defendant was defaulted and the case thereafter was by assignment, set for hearing on September 18, as a “jury prove up.” On this date the plaintiff appeared, but instead of being permitted to present evidence, he was informed by the court that after examining the complaint it was the opinion of the court that the complaint did not state a cause of action. Plaintiff was permitted to file a brief within 30 days which he did and on October 25, 1967, plaintiff’s complaint was dismissed. On this occasion defendant’s attorney filed a petition to vacate the default order but at the suggestion of the trial court, the motion was withdrawn. Plaintiff filed a post-judgment motion to vacate the judgment and thereafter defendant filed a memorandum which together with plaintiff’s previous memorandum, was considered by the trial court and on February 4, 1968, plaintiff’s motion to vacate the judgment was denied.

In summarizing plaintiff’s objections to the procedure which is concededly unusual, plaintiff contends that the sufficiency of the complaint was not properly raised in the trial court and is therefore not a proper issue in this court. As argued by plaintiff and as is apparent from the record, no pleading was ever filed by defendant raising the issue. The trial court in raising the issue sua sponte indicated in its orders only that the complaint did not state a cause of action, no reasons being given for such ruling.

Plaintiff relies, on chapter 110, section 40(2) and section 42(1), (2) and (3), III Rev Stats 19'67, which generally provide that objections to pleadings both as to form and substance must be specific and must be made in the trial court and if not timely made, will be waived. The aforementioned sections do not purport to prevent a trial court from considering the sufficiency of a pleading on its own initiative and it would appear inevitable in a default case that the trial court will give the question some consideration if for no other reason than to determine the sufficiency of the evidence. It is also true that a trial court need give no reasons for its rulings and although in cases such as this where the issues are not clearly formed by the pleadings, the better practice might well be to advise counsel of such reasons, the failure to do so does not result in error. The principal case relied upon by plaintiff is Addante v. Pompilio, 303 Ill App 172, 25 NE2d 123. We believe the case has no application since it involves a judgment entered after hearing evidence pursuant to complaint and answer. No question was raised concerning the action of the trial court under circumstances similar to those in the instant case.

Even though we believe the procedure could have been more effective, nevertheless we believe that the issue relating to the failure of the complaint to state a cause of action is properly before us. To hold otherwise would require us to reverse the judgment of the trial court without considering or being able to consider the very issue decided by the trial court.

The substance of plaintiff’s argument so far as the merits of the case are concerned, is that the complaint states a cause of action under chapter 74, section 6, Ill Rev Stats 1967. Because the procedure involved as described above did not result in a limitation of the issues, the plaintiff has devoted a substantial portion of his brief to the questions of whether the transactions occurring prior to September 1, 1963, constituted usury. Defendant in its brief concedes that whether such conduct was usurious or not was a question of fact which it could not dispute under the posture of the pleadings. For the purpose of this appeal the only question raised is the applicability of the 1963 amendment to section 6, chapter 74, Ill Rev Stats 1963. Such section provides: “6. Penalty. If any person or corporation knowingly contracts for or receives, directly or indirectly, by any device, subterfuge or other means, unlawful interest, discount or charges for or in connection with any loan of money, the obligor may recover by means of an action or defense an amount equal to twice the total of all interest, discount and charges determined by the loan contract or paid by the obligor, whichever is greater, plus such reasonable attorney’s fees and court costs as may be assessed by a court against the lender. The payments due and to become due including all interest, discount and charges included therein under the terms of the loan contract, shall be reduced by the amount which the obligor is thus entitled to recover. Recovery by means of a defense may be had at any time after the loan is transacted. Recovery by means of an action may be had at any time after the loan is transacted and prior to the expiration of 2 years.” The aforementioned section was enacted in 1963 and became effective September 1, 1963. Prior to 1963, the only penalty provided in section 6 was the forfeiture of interest, as a defense to an action therefore, the lender being entitled to recover the principal obligation. So far as material to this opinion it may be observed from the quotation of the 1963 amendment to section 6 that the borrower is given a direct action against the lender for the recovery of penalties fixed in amounts substantially higher than theretofore existed.

Plaintiff argues that the 1963 amendment of section 6, supra, can and ought to be applied to the transactions occurring prior thereto and further that the receipt of payments of interest after the effective date of the amendment constituted a new violation thereof. Statutory amendments by their nature usually affect the rights and duties of the persons included within the scope of the amendment. How such amendment should affect relationships existing at the time of the amendment is frequently a cause of concern and has been the subject of numerous decisions of courts of review. After reviewing the authorities cited by each of the parties it would appear that neither the present amendment nor any quite similar to it have been considered by the courts of this State.

Retroactive application of legislation is not favored and as a general rule statutes are construed to operate prospectively unless the legislative intent that they be given retroactive application clearly appears from the express language of the Acts, or by necessary implication. United States Steel Credit Union v. Knight, 32 Ill2d 138, 204 NE2d 4. A retroactive statute as defined in Corpus Juris Secundum 82, section 412, and approved in United Steel Credit Union v. Knight, supra, is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligatian, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. See also Ill Rev Stats 1967, c 131, § 4 (Savings Statute).

Whether a statute ought to be given retroactive application depends on the intention of the legislature and on the nature of the interest affected. Such conditions are mutually related since ordinarily the legislature will not be deemed to have intended to affect retroactively a right or interest not subject to the modification proposed. Sometimes the interest which can not be affected by the retroactive application of such amendment is described as vested or substantive as distinguished from matters which are considered procedural or remedial.

Statutory amendments extending the period of time during which an action may be brought have generally been held to be procedural and therefore applied retroactively as of the commencement of the action rather than when it accrued. Orlichi v. McCarthy, 4 Ill2d 342, 122 NE2d 513 and Pratt v. Hayes, 20 Ill App2d 457, 156 NE2d 290. On the other hand, in Hogan v. Bleeker, 29 Ill2d 181, 193 NE2d 844, the court declined to give retroactive application to an amendment which limited the time for foreclosing special assessment liens to five years when no limitation existed prior thereto. The Hogan case discusses the many aspects of retroactive application problems and indicates that prospective application of statutory changes is preferred unless some substantial purpose of the legislation would be defeated.

That the amendment in the instant case ought not to be given retroactive application is, we believe, required by Theodosis v. Keesin Motor Express, 341 Ill App 8, 92 NE2d 794. In Theodosis, the court refused to approve retroactive application of an amendment to the Injuries Act which increased the maximum amount recoverable in a death action from $10,000 to $15,000. The court, after reviewing the prior authorities, concluded that the defendant’s liability could not be increased after the act had occurred fixing such liability. It should be observed that the court reaches this conclusion even though the injured party may have sustained damages within the higher limitation.

If, as in the instant case, the increased liability is a penalty unrelated to actual damages, there would appear to be even greater reason for denying retroactive application. See Lichter v. Scher, 11 111 App2d 441, 138 NE2d 66. Since the law does not favor penalties, a statute will not be so applied as to increase the penalty after the conduct to be penalized has already occurred. Whether the right of a defendant be described as a vested interest or an exemption from increased consequences, we believe that the legislature neither intended retroactive effect nor was the interest of the defendant one which could be affected retroactively.

This brings us to the plaintiff’s argument that the statute need be given only a prospective effect in order to hold that the payments of interest received after September 1, 1963, violated the penalty provision. As indicated in Equitable Life Assur. Society of United States v. Scali, 38 Ill2d 544, 232 NE2d 712, usury is the exaction of excessive interest contrary to the statute. Usury occurs at the time of such exaction. If any usurious conduct took place in the transaction involved in this case, it took place either at the time the fees were exacted or at the time the final loan was made which included such charges. Nothing was done by either party on the date of the enactment of the 1963 amendment. On that date and thereafter, a particular amount of principal was due the defendant and interest at the legal rate was charged and received on said amount. With respect to the principal due on September 1, 1963, there is no contention that the interest received thereafter exceeded the legal rate provided by statute and accordingly it is our view that no violation of the statute took place after the effective date of the 1963 amendment.

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

Judgment affirmed.

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


author: MORAN, P. J.

text:
    The First National Bank of Chicago and Edna S. Schram Hirsh, as Trustee Under the Last Will of Jack A. Schram, Deceased, Plaintiffs-Appellees, v. Victor Comptometer Corporation, Defendant-Appellant.
    Gen. No. 53,166.
    First District.
    April 17, 1970.

      Vernon R. Loucks, and Peterson, Lowry, Rall, Barber & Ross, of Chicago (Timothy G. Lowry, Owen Rall, and John R. Porter, of counsel), for appellant.
    Leibman, Williams, Bennett, Baird & Minow, and Clausen, Hirsh, Miller & Gorman, of Chicago, for appellees.
   MORAN, P. J.

This is an appeal by the defendant, Victor Comptometer Corporation, from a summary judgment entered by the Circuit Court of Cook County which ordered the defendant to deliver 1282 shares of its stock to the plaintiff.

Prior to March 24, 1959, Jack Schram and William Schaffner were owners of Burke Golf Equipment Corporation, Burke Golf Sales, Inc., and National PGA Distributors, Inc., a subsidiary of the sales company. These companies were engaged in the manufacturing and marketing of golf equipment. In early 1959 Schram and Schaffner entered into negotiations with Comptometer Corporation (predecessor of defendant) concerning the sale of the businesses to Comptometer. On March 3, 1959, the parties executed a Memorandum of Intent which specified the details of the transaction. Subsequently, on March 24, 1959, the “Agreement” was executed. Under the terms of this agreement the defendant acquired all of the stock of the Burke Companies. In addition to other consideration, the agreement provided:

“4. Issuance of Additional Common Shares in respect of Earnings. Comptometer agrees, as additional consideration for the shares of capital stock to be purchased under Subdivision A of Paragraph 2 of this Agreement that, if during each of the three fiscal years of the Equipment Corporation, ending September 30, 1960, September 30, 1961 and September 30,1962, the aggregate net earnings of the Equipment Corporation and the Sales Company consolidated before provision for Federal income taxes, are in excess of $135,000, (or if, on a cumulative basis, such net earnings for any two or three of said three years averages $135,000 or more per year) Comptometer will issue to the Sellers, within 60 days after the close of each such fiscal year, in equal proportions, one Comptometer Common Share, par value $1 per share, for each $13 of such excess net earnings; provided that the maximum aggregate number of Common Shares issued with respect to such excess net earnings in any such fiscal year shall not exceed 2,564 Common Shares, and with respect to said three years, shall not exceed an aggregate of 7,692 Common Shares.”

For the fiscal year ending September 30, 1960, the net earnings were $221,973.83 and for 1961, $165,969.82. After each of these fiscal years -the defendant issued 1282 shares to both Schram and Schaffner, or 2564 per year for a total of 5128. The net earnings for fiscal year 1962 were $54,423. No additional stock was issued.

The plaintiff’s complaint and amended complaint alleged that it is the executor of the estate of Jack A. Schram, deceased; that it has not received an accounting of the results of the operation of the Equipment Corporation for the fiscal year ending September 30, 1962; that on information and belief the aggregate net earnings exceeded the sum of $135,000 for fiscal year 1962, or, alternatively, averaged at least $168,332; and that the plaintiff was entitled to 1282 additional shares of Victor Comptometer stock in accordance with paragraph 4 of the agreement. The defendant’s answer denied these allegations.

Subsequently the plaintiff filed a motion for summary judgment. The motion alleged that the defendant had furnished the plaintiff a financial statement and that in accordance with the plain provisions of Paragraph 4 of the Agreement and the contents of the financial statement, Victor was obligated to issue to plaintiff the 1282 shares of Victor. After an answer to the motion and a reply to the answer, and various affidavits were filed, the court ordered the motion for summary judgment granted. In its decree the court stated:

“4. That, solely for the purposes of Plaintiff’s motion, the net earnings of Burke Golf Equipment Corporation and Burke Golf Sales, Inc., for the fiscal year ended September 30, 1960, amounted to $221,-973.83; that solely for the purposes of Plaintiff’s motion, the net earnings of said two companies for the fiscal year ended September 30, 1961, amounted to $165,969.82; that the aggregate net earnings of said two companies for the said two fiscal periods were $387,943.65 and that the average net earnings of said two companies for the said two fiscal periods amounted to $193,971.82.
“5. That applying the formula set forth in the parentheses appearing in the first sentence of Paragraph 4 (of the agreement) quoted above, the average excess net earnings of said two companies for the fiscal year ended September 30,1960, after deducting the sum of $135,000.00 as provided in said first sentence, were $58,971.82, and the average excess net earnings of said .two companies for the fiscal period ending September 30, 1961, after deducting said amount of $135,000.00 as provided in said first sentence, were $58,971.82; that the total excess net earnings for both of said fiscal years, computed as aforesaid, amounted to $117,943.64; that on the basis of the formula set forth in said parentheses there are sufficient excess net earnings for the first two fiscal years to support the issuance of 1,282 shares to the plaintiff in respect to the third fiscal year ended September 20,1962.”

Plaintiff contended in the trial court and contends now that the parenthetical language of Paragraph 4 of the acquisition agreement was an alternate method of payment plainly expressed in the agreement; that the language is clear and unambiguous and that under that language it is entitled to the 1282 shares based on the excess average net earnings of the Burke Companies during the two fiscal years ending in the years 1960 and 1961; that when Victor Comptometer earned more than the required 7692 common shares in 1960 and 1961, plaintiff is entitled to be paid the 1282 shares at the end of 1962, even though Victor Comptometer would lose money that year. It also argues that the seller could have selected the first and third years of the second and third years if the earnings for those two years were the highest, but it just happened that the earnings for the first two years were sufficient to support the issuance of the maximum number of shares for the third year.

Defendant contends that what the parties intended by the parenthetical clause must be determined not by isolating it and considering it separate and apart from the rest of Paragraph 4, but rather it must be considered in connection with all of the other words, clauses and conditions of Paragraph 4. The contract should not be construed so as to ignore and make meaningless particular words, or a particular clause or condition of the contract; that the obvious purpose of the provision that bonus shares were not to issue until 60 days after the close of each such fiscal year was to provide a period of sixty days time after the close of each of the three fiscal years in order to determine that the net earnings for that year were sufficient to require bonus shares; that if the entire number of 7,692 bonus shares were due and owing to the sellers at the end of two years, then the clause requiring the issuance of shares for the third year to wait until sixty days after the close of the third year would be without any reasonable purpose. Obviously, the parties under the contract were given sixty days after the fiscal year 1962 to determine what, if any, bonus shares had been earned by the net earnings of 1962 when averaged with the other years.

Defendant also contends that the portion of the contract which provides that “the maximum aggregate number of common shares to be issued with respect to such excess net earnings in any such fiscal year” shall not exceed 2,564 common shares, nullified plaintiff’s contention, because under plaintiff’s contention the entire 7,692 shares would have been earned at the close of the second year (1961) which would mean that the shares to be issued with respect to such excess net earnings in the two years 1960 and 1961 would be in excess of the above express limitation contained in the contract. Plaintiff’s construction completely ignores the above contract provision “that the maximum aggregate number of common shares issued with respect to such excess net earnings in any such fiscal year” shall not exceed 2,564.

Defendant argues that since 2,564 shares were issued and accepted for each of the fiscal years 1960 and 1961, any additional bonus shares earned would, under the above specific provision of the contract, have to be for earnings in the year 1962 as averaged with the earnings of 1960 and 1961.

In our opinion, one could read this contract and reasonably conclude that the trial court was correct in deciding that there were sufficient excess net earnings by Victor Comptometer in the first two fiscal years to support the issuance of an additional 1282 shares to the plaintiff without regard to the earnings of Victor Comptometer for 1962. However, one could also accept defendant’s version and conclude that no bonus shares were to be issued for the year 1962 without taking into consideration the earnings of the corporation for 1962 and averaging them with 1960 and 1961. Therefore, in our opinion the provision of the contract lends itself to interpretations which could result in the issuance to the plaintiff for the fiscal year 1962 of no shares, 1282 shares, or some figure in between.

An ambiguous contract is one capable of being understood in more senses than one; an agreement obscure in meaning, through indefiniteness of expression, or having a double meaning. Whiting Stoker Coal Co. v. Chicago Stoker Corp., 171 F2d 248 (7th Cir); 17 CJS, Contracts, § 294.

Since this contract is capable of being understood in more senses than one, it is ambiguous and resort must be had in the trial court to evidence of extrinsic facts and circumstances to determine the true intent and agreement of the parties.

We have examined in detail the other points and authorities submitted by both sides and have come to the conclusion that, at this posture of the case, we should dispose of no other contentions.

For the foregoing reasons the judgment of the Circuit Court of Cook County is reversed and this case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ„ concur.


author:
GOLDENHERSH, J.
      MORAN, P. J.,

text:
    Henry Richard, Plaintiff-Appellant, v. Clarence Dauby, Defendant-Appellee.
    Gen. No. 69-30.
    Fifth District.
    April 24, 1970.
    Rehearing denied May 21, 1970.
    MORAN, P. J., dissenting.

      Leonard J. Dunn, of West Frankfort, for appellant.
    C. William Fechtig, of Carmi, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of White County entered upon a jury verdict awarding plaintiff $3,000 in his action for personal injuries. As grounds for reversal plaintiff contends the trial court erred in refusing to permit a proper voir dire examination of prospective jurors, and its ruling denied him a fair trial resulting in a grossly inadequate verdict.

The record shows plaintiff ascertained by interrogatory that defendant was insured by Country Mutual Insurance Company, hereafter called Country Mutual. He filed a motion alleging that the defense of this action was being conducted by Country Mutual; Country Mutual is a branch department of the Farm Bureau; policyholders or persons interested in Country Mutual and the Farm Bureau are mostly farmers and farm owners; White County is composed largely of farmers and such persons “as would likely be policyholders in the Country Mutual or officials of the Farm Bureau, or officers, agents or employees of either;” it has been the policy of the said Country Mutual and the said Farm Bureau, for many years, to attempt to influence prospective jurors in personal injury cases, by means of various advertising, propaganda, speeches, brochures, gossip and other means, for the purpose of prejudicing the general public against litigant plaintiffs, and for the purpose of securing and obtaining verdicts favorable to the Insurance Company in personal injury cases tried by juries; it appears obvious from the remarks, innuendos, accusations and implications of the exhibits hereto attached, that the entire purpose and design of such propaganda is to lead the public, and prospective jurors chosen from the public, to return a verdict favorable to the defendant in any personal injury case; such obvious jury tampering as has been repeatedly and openly carried on and conducted by said Country Mutual, for many years prior hereto, in the aforesaid manner, and particularly among its policyholders and members of the Farm Bureau, “should automatically disqualify any juror called for voir dire examination in the trial of this cause, who is revealed to be a policyholder in said Company or a present or past member of the Farm Bureau, or any officer, Agent, Employee, or direct relative thereof, of either.”

The motion concludes “that upon the voir dire examination of the jurors in the trial of this cause, plaintiff’s counsel be permitted to question the prospective jurors as to whether they are policyholders of Country Mutual Insurance Company, or whether they are officers, agents, employees, or direct relatives thereof, of either the said Country Mutual Insurance Company or the said Farm Bureau; that upon such juror giving a positive answer, that this court will automatically excuse such prospective juror. . . .”

Three exhibits are attached to the motion. Exhibit 1 is a report of a speech made by Country Mutual’s public relations manager printed in a newspaper widely circulated in White County, in which he stated that Illinois juries in the last court term had thrown out approximately half of all personal injury cases as without merit; that

“Many of the cases stacked up in the court backlogs were never intended to be tried to verdict by the plaintiffs who filed them. Only those cases in which plaintiffs and their lawyers are convinced are good enough to win a jury’s favor are actually pressed to trial and verdict.
“And here in Illinois juries are rejecting just about half of the so-called ‘prime’ cases as having no merit whatsoever, and the plaintiff walks away with nothing.
“Significantly, in many of the decisions that went for the plaintiff, the awards arrived at were no greater and very often considerably less than settlements that had been offered to the plaintiff and could have been his for the taking without the expense of a court trial. And remember, under the contingency fee system in which most of these cases are tried, the lawyers for the plaintiffs take at least 25 percent, more often 33 percent, and sometimes up to 50 percent of court awards.”

Exhibit 2 is a brochure entitled “Important Facts About Your Auto Insurance Bate” mailed by Country Mutual to its policyholders to announce a rate increase and stating in part:

“Last year’s increase was intended to offset the soaring cost of claims resulting from accident frequency and severity. But Country Mutual (and practically all other insurance companies) did not know the amount paid on claims would go way beyond what was expected.
“Country Mutual’s average payment per claim last year was nearly 20 percent higher than in 1964.
“Country Mutual wasn’t alone. Auto claims losses paid by all insurance companies in Illinois hit a new high of more than $300 million in 1965.
“The average accident verdict handed down by Illinois juries was much higher than in previous years.
“The number of serious accidents continues to increase. The price of auto insurance is directly affected by the driving experiences of policyholders, jury verdicts, auto repair and medical costs—which are beyond the control of auto insurance companies.
“Future claims experience of the company’s auto policyholders will play a major role in determining the base rate for Country Mutual’s auto insurance.”

Exhibit 3 is an article published in the Illinois Farm Bureau Magazine, entitled “Country Mutual Increases Auto Insurance Rates” which reads in part:

“Country Mutual’s average payment per claim in 1965 was about 20 percent higher than in 1964. A part of this increase is a result of a growing tendency of too many jurors, serving in accident cases, to return awards entirely out of proportion to the actual damage or injury involved.
“Land (Country Mutual’s vice president) said the attitude of many of these jurors is, ‘The Insurance Company has lots of money, so the amount of the verdict is not important.’ This attitude overlooks the important point that it is unjustified and excessive jury awards that are contributing to higher insurance premiums.”

Defendant filed the affidavit of one of the secretaries in the Farm Bureau office who listed sixteen of the jury panel of forty-four members, and stated:

“The undersigned, first being duly sworn, on oath states that she is a Farm Bureau Organization Secretary and as such is familiar with the White County rolls and membership lists of members of the Farm Bureau, insureds of Country Mutual Insurance Company, officers, agents and employees of either of them and that she has made diligent inquiry as to the spouses and other relatives living in the homes thereof; she further states that the following persons are the only ones included in the attached list who come within the listed categories: (16 named persons).”

The court entered an order which concludes “that the motion is overruled, however, the attorneys for the Plaintiff may excuse any member listed on the affidavit filed herein, and it will be considered as a challenge for cause; it is further ordered that the Clerk not call any member so listed to the jury box in order to avoid the possibility of injecting insurance into the case.”

Plaintiff contends the affidavit filed on behalf of defendant is much narrower in scope than his motion which sought to inquire as to the jurors’ interest as policyholders, former policyholders, officers, agents, employees or direct relatives thereof. He argues such relatives would not necessarily be residents of the same house to come within the scope of the motion, and only by questioning on voir dire could this interest be ascertained.

As pointed out in the dissenting opinion in Kavanaugh v. Parret, 379 Ill 273, 282, 40 NE2d 500, there are counties in Illinois in which mutual insurance companies with large numbers of policyholders operate, and because of the presence of so many of such policyholders on jury panels, it is difficult, if not impossible, in an automobile collision case to receive a fair trial.

In a number of cases our Supreme Court has considered the questions of when and to what extent prospective jurors may be examined on voir dire as to their interest in, or relationship to, liability insurance companies. (See Smithers v. Henriquez, 368 Ill 588, 15 NE2d 499; Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill 180, 37 NE2d 801; Kavanaugh v. Parret, 379 Ill 273, 40 NE2d 500; Moore v. Edmonds, 384 Ill 535, 52 NE2d 216; Wheeler v. Rudek, 397 Ill 438, 74 NE2d 601; and Haymes v. Catholic Bishop of Chicago, 41 Ill2d 336, 243 NE2d 203.) The rule evolved is that a plaintiff, in good faith, may inquire upon voir dire as to the jurors’ or their relatives’ possible connection with or interest in liability insurance companies for the purpose of intelligently exercising his right to peremptory challenge to the end of obtaining a jury free from prejudice. Such inquiry is proper even though it may develop a suspicion in the minds of the jury that the defendant is insured, so long as it is made in good faith and not for the purpose of disclosing to the jury that the defendant is insured.

Plaintiff states in his brief that it developed on voir dire that four of the jurors owned farm land, another was the wife of a truck driver who farmed, and another operated a grocery store in a small farming community. He contends one or more of these probably had an interest in Country Mutual or the Farm Bureau, and because of the ruling on his motion he was precluded from inquiring as to such interest and was thereby prejudiced.

Although we are inclined to agree with plaintiff’s categorization of the exhibits and his appraisal of their purpose and intent, the record does not contain the voir dire examination and in its absence the contention that the court improperly limited the extent of his inquiry, and in so doing erred, is not before us on review. Augustine v. Stotts, 40 Ill App2d 428, 189 NE2d 757. On the record before us it appears that the court in ordering the clerk not to call any juror named in defendant’s affidavit, gave plaintiff all the relief sought by the motion.

Plaintiff contends that in view of the severity of his injuries the verdict is so grossly inadequate as to require a new trial. The evidence shows special damages in the amount of $506.70 and from our examination of the medical testimony we are unable to say the verdict is so inadequate as to require reversal.

For the reasons set forth the judgment of the Circuit Court of White County is affirmed.

Judgment affirmed.

EBERSPACHER, J., concurs.

MORAN, P. J.,

dissenting:

The core of the majority opinion is “that the court, in ordering the clerk not to call any jurors named in defendant’s affidavit, gave plaintiff all the relief sought by the motion.” This misconstrues the scope of relief prayed for in plaintiff’s motion.

The affidavit filed by the Farm Bureau disclosed only the present membership lists of the Farm Bureau and the present policyholders of Country Mutual Insurance Company, etc. Plaintiff’s motion to interrogate jurors concerning their possible bias included not only those persons mentioned in defendant’s affidavit but also “past members of the Farm Bureau, or any past officer, agent, employee or direct relative of either.” Plaintiff’s motion stated that Country Mutual Insurance Company is a branch department of the Farm Bureau.

Of forty-four persons on the whole jury panel, sixteen were stricken because of defendant’s affidavit. When we consider that one-third of the jury panel had such a present relationship with the Farm Bureau and/or Country Mutual Insurance Company as to be subject to be stricken for cause, it is very likely that there were former policyholders of Country Mutual and “past” members of the Farm Bureau or past officers, agents, employees or direct relatives thereof, many of whom may have been the recipients of the propaganda of the Farm Bureau and/or Country Mutual Insurance Company and who were not listed in the affidavit.

Both sides in their briefs agree that both plaintiff and defendant are entitled to a fair trial before an impartial and unbiased jury.

In the recent case of Haymes v. Catholic Bishop of Chicago, 41 Ill2d 336, 243 NE2d 203, our Supreme Court quoted with approval the case of Moore v. Edmonds, 384 Ill 535, saying at 341:

“Nor was it reversible error to permit plaintiff’s counsel to interrogate prospective jurors about their or their relatives’ possible connection with insurance companies. The precise questions propounded here were permitted in Moore v. Edmonds, 384 Ill 535, where the court stated at p 541: ‘Judicial opinion almost universally recognizes the right of the plaintiff in good faith to interrogate the jurors on their voir dire examination as to their, or their relatives’ possible connection with, or interest in, liability insurance companies, in order to determine the expediency of exercising his right to peremptory challenge to the end of obtaining a jury free from bias and prejudice, even though such inquiries may develop a suspicion in the minds of the jury that defendant is protected by insurance.’ ”

Plaintiff has charged the Country Mutual Insurance Company and the Farm Bureau, who have the contractual right of conducting the defense of many personal injury suits in White County and who are parties in interest to the present proceeding, with conducting a deliberate campaign to bias prospective jurors who sit on the type of cases in which they are financially interested. Such charges, if true, would furnish a reasonable basis for plaintiff to believe that many persons, other than the sixteen jurors listed in the Farm Bureau’s affidavit, received propaganda intended to prejudice them if and when they sit on juries. Since plaintiff’s charges are not denied, the good faith of plaintiff’s attorney in seeking to ascertain the potential bias of the jurors is established as a matter of law. The fact that defendant might be prejudiced by such voir dire examination is unfortunate, but this should not override the right of plaintiff to try his case before disinterested parties. One who by his own action seeks to prejudice or bias jurors for his financial interest can hardly be heard to complain when the party who stands to lose by his propaganda seeks to inquire as to whether that propaganda has been effective.

In my opinion, the trial judge erred in denying plaintiff a reasonable interrogation on the matters that he requested.