author: MR. JUSTICE STAMOS

text:
    Donald Gibson, a Minor, by Norman Gibson, His Father and Next Friend, Plaintiff-Appellee, v. Healy Brothers and Company, a Corporation, Defendant, and Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation, and Thomas B. Healy and Michael S. Healy, Doing Business Under the Firm Name and Style of Healy Brothers and Company, McCook, Illinois, Defendants-Appellants.
    Gen. No. 51,729.
    First District, Fourth Division.
    April 16, 1969.
    Rehearing denied May 19,1969.

      Peterson, Lowry, Rail, Barber & Ross, of Chicago (Walter W. Ross, Jr., Herbert C. Loth, Jr., Robert G. Schloerb, and Gene A. Knorr, of counsel), for appellants.
    Roland C. Upton, George F. Witteman, and Harvey A. Cohan, of Chicago (Samuel Levin, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Donald Gibson, a minor, by Norman Gibson, his father and next friend, sued the defendants, Healy Brothers and Company, a corporation, the Metropolitan Sanitary District of Greater Chicago, a Municipal Corporation and Thomas B. Healy and Michael S. Healy, doing business under the firm name and style of Healy Brothers and Company, to recover damages for personal injuries. Healy Brothers and Company, a corporation, was dismissed as a party defendant. The jury rendered a verdict in favor of plaintiff and awarded damages in the sum of $250,000 against all the remaining defendants. On appeal they contend: (a) The trial court erred in denying defendants’ motions for directed verdict and judgment notwithstanding the verdict since there was no evidence that defendant violated any duty owed plaintiff or that defendants proximately caused plaintiff’s injury; and further that plaintiff was contributorily negligent as a matter of law; (b) The trial court erred in denying defendants’ motion for a new trial because the trial court erred in instructing the jury; plaintiff’s expert witness was not competent; hypothetical questions were based on facts not in evidence; and the verdict was excessive.

The following evidence was adduced at the trial by plaintiff. Healy Brothers and the Sanitary District contracted for the construction of an intercepting sewer tunnel. A portion of the work necessitated the construction of a manhole being brought up from the tunnel to the street level at a site on Ballard Road just east of Maryland Street in Maine Township, an unincorporated area in Cook County, Illinois.

Ballard Road was an asphalt road two lanes wide and ran generally east and west. It was about thirty feet wide and had dirt shoulders. There were no sidewalks or streetlights in the area.

The manhole identified as Shaft No. 18 was located at the north shoulder of Ballard Road and was about seventy-eight feet deep. The shaft was dug out by air spades and hand laborers. Dirt and debris from the excavation were placed in muck boxes and a crane was used to lift the boxes from the shaft. The dirt and debris were then loaded into trucks and hauled away.

Immediately west of the shaft was a large mound of dirt and various equipment. Lighted flare pots were placed around the equipment, excavation and pile of dirt. The flare pots were placed in about the center of Ballard Road on the south side of the excavation, equipment and pile of dirt. They were burning at the time of the accident. A large sign was erected east of the excavation site, that read “DANGER” in large letters.

The fire or flare pots were the usual type and used No. 2 fuel oil which is drawn up a wick where it would vaporize and thus allow burning. The flame would be within less than a two-inch diameter around the four openings in the top of the flare pot. These pots were weighted on the bottom so that they would not tip over unless tipped beyond 60 degrees.

The work on the sewer construction had been in progress since the early part of 1958 and this accident occurred near the site of Shaft No. 18 on the evening of January 15, 1959. The evidence revealed that between January 1st and 15th, 1959, the surface of Ballard Road was muddy and sloppy to a depth of about % of an inch and during freezing weather the surface of Ballard Road would become rough and uneven.

On the day of the occurrence, plaintiff was fifteen years of age, five foot, eight or nine, and weighed 150 pounds, and was well aware of the excavation site area, having played around it on numerous occasions with his brother. There was snow on the ground and the average temperature was eighteen degrees with a wind velocity of 24.2 mph and gusts up to 32 mph. While going to school that day, plaintiff observed the construction site was rather rough, that there was a lot of dirt on the road and that the flare pots were placed in position.

Prior to the accident, plaintiff was walking west on the south side of Ballard Road alone and had in his possession a flashlight which he did not use. It was between the hours of 6 and 7 p. m. and he was out to see the condition of the ice pond that was located near the construction site off Ballard Road. There was deep snow and ice on the far south side of the road caused by plowing of snow on Ballard Road. He crossed over to the north side of Ballard Road, continued to proceed west toward the danger sign and the excavation area. As he approached the danger sign, he noticed the road was rough with mounds of dirt and was slippery so he crossed to the middle of Ballard Road. Plaintiff observed that dirt and debris extended from the equipment out into the highway where trucks had worn it smooth.

He passed within one foot to eight inches of the first flare pot. These flare pots were set out in the center of Ballard Road. When he walked another 15 or 20 feet he came abreast of another flare pot and he was six inches away from it when he slipped on the dirt and debris, and fell sideways ending up with the flare pot between his legs. The flare pot was overturned on his clothing when he tried to scramble away from it. Plaintiff observed his lower pant legs were on fire. He tried to beat out the flames with his bare hands and finally ran to the nearby field and rolled in small ice ponds to extinguish the flames. He could not remember too much about walking home, but recalls that his coat was still smouldering and he again had to beat the flames with his bare hands.

Evidence was also introduced as to plaintiff’s injuries and damages. The defendants chose not to introduce any evidence and they rested their case at the close of plaintiff’s case.

Defendants’ first contention is that the trial court erred in denying defendants’ motions for a directed verdict and judgment notwithstanding the verdict since there was no evidence that defendant violated any duty owed plaintiff or that defendants proximately caused plaintiff’s injury; and further that plaintiff was contributorily negligent as a matter of law.

This contention must be reviewed in the context of Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) at page 510:

“In our judgment verdicts ought to be directed and judgments n. o. v. 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.”

See also Bernier v. Skripek, 86 Ill App2d 118, 126-127, 229 NE2d 890 (1967).

Defendants argue that they were not negligent in causing dirt and clay to accumulate on Ballard Road to form an uneven, rippling surface; since construction was still in progress a certain amount of dirt near the excavation was to be expected, but even if they were negligent the defect present at the scene was trivial. Further, that it was not foreseeable that plaintiff would walk where he did, nor was it foreseeable that the rippled condition caused by the mud, snow and ice would result in plaintiff’s injuries. Defendants contend there was neither evidence of negligence on their part in the performance of the work at the construction site nor evidence of any act committed on their part that was the proximate cause of plaintiff’s injuries. Defendants allege they had a duty to exercise only ordinary care in the maintenance of the construction site and that the duty to keep the road free from mud six inches outside the line of flare pots adjacent to the excavation would be extending their duty beyond reasonable limits.

The evidence disclosed that Ballard Road, at the scene of the construction site, was covered with mud, dirt, clay and debris, in some places three to four inches in height, making the road dangerously rough and slippery and motor vehicles zigzagged to avoid large lumps of clay on the road. In Arvidson v. City of Elmhurst, 11 Ill2d 601, 145 NE2d 105 (1957) the court said at page 605:

“The rule in Illinois, reiterated in the case law, is that a jury question on the issue of the city’s negligence is presented only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it.” (Cases cited.)

The lane open to the public was described by witnesses as being littered with mud, clay and dirt and that this condition had existed for a matter of months. The record establishes a condition of the road that cannot be dismissed as a “trivial defect.”

The evidence viewed most favorably to the plaintiff reveals that there was no public sidewalk on Ballard Road, that Ballard Road was used for pedestrian travel, that there was a public school nearby, that there were large lumps of clay, mud and debris on Ballard Road, that the south shoulder of Ballard Road was covered with snow and ice and was impassable to pedestrian travel and that the large lumps of clay, mud and debris were caused by the work on the construction site. In view of all the evidence presented and the inferences which may be drawn therefrom we cannot say, applying Pedrick, that the evidence so overwhelmingly favors movant that no contrary verdict could stand.

Defendants also contend that plaintiff was contributorily negligent as a matter of law. This contention must also be viewed in the light of the Pedrick decision. Defendants charge that plaintiff had knowledge that construction had been in progress for many months; that he had passed the site many times on his way to and from school and had seen and walked upon the rough construction site and dirt; that the site was furnished with a large danger sign and appropriately placed flare pots. Defendants argue that plaintiff was guilty of contributory negligence because he should have walked on the other side of the open lane; stayed away from the flare pots; used his flashlight; and because he failed to exercise the care that one of his age, experience, intelligence and capacity might be expected to exercise under similar circumstances.

Again viewing all the evidence most favorably to the plaintiff we cannot say that plaintiff was guilty of contributory negligence as a matter of law. The testimony of plaintiff reveals that he was walking carefully, that he was looking straight ahead, and that he fell as a result of the ice, mounds of dirt and debris at the construction site.

Defendants cite Klimovich v. Crutcher, 57 Ill App2d 244, 206 NE2d 723 (1965) which was decided before Pedrick and is therefore not applicable as a standard here.

Under the Pedrick rule we cannot say that the plaintiff was guilty of contributory negligence as a matter of law.

We feel therefore that the court did not err in denying defendants’ motions for directed verdicts and judgment notwithstanding the verdict.

Defendants’ second point raises various alleged trial errors as grounds for a new trial.

Plaintiff called Edward C. McLean, an industrial engineer, who testified to his experience in handling flare pots, which consisted of filling thirty-five flare pots for eighty days some years before as a young engineer on highway work. The following hypothetical question was propounded to McLean:

“Assume further that this young man slips on the rippled dirt covered with snow and ice and falls, with his legs becoming entangled with the flare pots of a Pressed Toledo or Anthes type;
“That the boy’s clothing immediately at the trouser level becomes ignited and burns, and that the flames then spread up the trousers and jacket;
“Do you have an opinion, based upon a reasonable degree of engineering certainty as to the cause if there is a causal connection between the flare pots and the ignition of the clothing of the boy’s trousers ?”

Over objections, McLean answered, in his opinion, that denim, coming in contact with the lighted flare pot, would burn.

McLean was then asked:

“And if the flare pot were held in an upside down position with the oil flowing from it, would there be any causal connection, based upon a reasonable degree of engineering certainty, as to the cause of ignition with the oil flowing from the pot, assuming the other prior facts ?”

Defendants lodged appropriate objections, but the witness was permitted to answer “. . . the cause of ignition would be the lighted flare pot . . . igniting the oil and vapor in the oil of the spilled or capsized flare pot.”

We hold that McLean was not competent to express an opinion that the denim clothing would burn in coming in contact with the lighted flare pot. McLean’s qualifications as an expert encompassed flare pots, their design, construction, use, operation and function. The test of the competency of an expert witness is whether he discloses sufficient knowledge of his subject matter to entitle his opinion to go the the jury. Piacentini v. Bonnefil, 69 Ill App2d 433, 217 NE2d 507 (1966). On cross-examination McLean admitted he was not an expert regarding the combustibility or burning qualities of fabrics or other materials.

The second question is also objectionable, because there was no evidence introduced that the flare pot was in an “upside down” position with “oil flowing” from it.

Defendants also contend that the court erred in permitting McLean to testify as an expert in answer to hypothetical questions before any of the facts stated in the hypothetical questions were adduced in evidence. Defendants argue that this procedure deprived them of any meaningful cross-examination.

Plaintiff’s counsel informed the court that McLean’s presence was urgently needed in another state, that McLean was not sure when he would be back in this state and that plaintiff’s counsel would adduce the lacking evidence from subsequent witnesses. The court with reluctance, over defendants’ objection, permitted McLean to testify prior to the introduction of the facts referred to in the hypothetical questions.

Permitting an expert witness to answer hypothetical questions based upon facts which have not been previously adduced in evidence upon the guarantee that such facts will subsequently be adduced in evidence is not desirable and is strongly to be discouraged. Whether or not such practice will be permitted in the particular situation is within the sound discretion of the court. Pittsburgh, Ft. W. & C. R. Co. v. Moore, 110 Ill App 304 (1903). A review of the cross-examination of McLean does not reflect that defendants were prejudiced in this case. We hold that the court did not abuse its discretion in this regard, but assume that the calling of this witness out of proper order would not be permitted to happen again on retrial.

We do find that the trial court erred in giving the following two instructions.

Plaintiff’s Instruction 23 read as follows:

“There was in force in the State of Illinois at the time of the occurrence in question, a certain statute which provided that:
“ ‘It is unlawful for any person to deposit spoil or cause spoil from any excavation to be deposited in such a manner that the tow (SIC) of such spoil will be nearer than (SIC) twenty feet to any established right of way or any public highway located outside of the corporate limits of municipality.’
“If you decide that the parties violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the parties were negligent before and at the time of the occurrence.”

This instruction is a substantive portion of Ill Rev Stats, c 121, § 9-115 (1959). A reading of the entire statute reveals that it is only applicable to persons working adjacent to the established right-of-way of any public highway. The work that was being performed here was not adjacent to the established right-of-way of a public highway but rather was being performed on a part of the established right-of-way.

Plaintiff’s Instruction 22 was as follows:

“There was in force in the State of Illinois at the time of the occurrence in question, a certain statute which provided that:
“ ‘No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from depositing, sifting, leaking or otherwise escaping therefrom except that sand may be deposited for the purpose of securing traction or water or other substance may be spread on a roadway in cleaning or maintaining such roadway.
“ ‘No person shall operate on any highway any vehicle with any load unless said load and any covering thereon is securely fastened so as to prevent said covering or load from becoming loose, detached, or in any manner a hazard to other users of the highway.’
“If you decide that the parties violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the parties were negligent before and at the time of the occurrence.”

The above instruction, taken from Ill Rev Stats, c 9514, § 226 (1959) is not supported by evidence that vehicles driven or moved on the highway were constructed or loaded in violation of the statute or that any load was not securely fastened, became loose or detached.

Since we are remanding this case for a new trial, we feel it necessary to discuss the following instructions.

The trial court did not err in the giving of plaintiff’s instruction regarding the failure of defendants to produce evidence. IPI, 5.01. When plaintiff makes a prima facie case, the failure of a defendant to produce evidence (e. g., condition of Ballard Road) warrants the inference that the testimony would be unfavorable to him and this failure to produce evidence may be considered by the jury. Beery v. Breed, 311 Ill App 469, 36 NE2d 591 (1941).

The trial court did not err in refusing Defendant’s Instruction 18, which recites, Ill Rev Stats, c 95%, § 175 (1957), relating to the duty of pedestrians to keep on the left of the paved portion of a highway, the left shoulder of the road in this case, and upon meeting a vehicle to step off to the left. This statute pertains only to the relationship of pedestrians and vehicles.

Because we reverse and remand for a new trial, we do not pass upon the question of the amount of the verdict.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Frank W. Mathis, Plaintiff-Appellant, v. Dr. William F. Hejna and the Presbyterian-St. Luke’s Hospital, Defendants-Appellees.
    Gen. No. 52,213.
    First District, Fourth Division.
    April 16, 1969.

      Barbera and Friedlander, of Chicago (Dom J. Rizzi, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Perry L. Fuller, D. Kendall Griffith, and Dennis J. Horan, of counsel), and William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal from a judgment dismissing plaintiff’s complaint for malpractice. Plaintiff’s complaint was in two counts: Count I alleging specific negligence; Count II sounding in res ipsa loquitur.

The complaint was filed on September 8, 1966, alleging that on or about September 19, 1963 the defendants, Dr. Hejna and certain agents, servants and employees of Presbyterian-St. Luke’s Hospital, performed a myelogram upon plaintiff while he was a patient at defendant hospital.

Myelography is a diagnostic procedure wherein a dye substance, such as pantopaque (the dye used in this case) is injected into the spinal canal as a contrast medium and the image created by the contrast medium is studied on a fluoroscopic screen, image amplifier or X-ray television screen.

Plaintiff alleged, inter alia, that the defendants were negligent in that they permitted pantopaque, which is a foreign substance other than flesh, blood or bone, to remain in plaintiff’s body thereby causing him to contract arachnoiditis. The complaint further alleged that plaintiff was unaware of defendants’ negligence until within a period of less than two years preceding the date this suit was commenced.

The defendants moved to dismiss the complaint on the ground that it was barred by Ill Rev Stats, c 83, § 15 (1967), which states in pertinent part that all actions for personal injuries must be brought within two years from the date of the injury.

To avoid the two year bar of section 15, plaintiff urges that Ill Rev Stats, c 83, § 22.1, is controlling in this action. Section 22.1 provides that a cause of action for negligently permitting a foreign substance to remain in the body of a living human being does not accrue until the injured party knew or should have known of the injury. By urging that this action is covered by section 22.1 rather than section 15 plaintiff argues that pantopaque is a foreign substance within the meaning of section 22.1 and thus the statute of limitations was tolled until plaintiff “knew or should have known” of his alleged injury.

The trial court rejected plaintiff’s contention and ruled as a matter of law, that pantopaque was not a foreign substance within the meaning of section 22.1 and accordingly plaintiff’s complaint was barred by section 15 of the statute of limitations.

Since the judgment which plaintiff is appealing was entered pursuant to defendants’ motion to dismiss the complaint, all well pleaded facts must be taken as true. Miller v. Veterans of Foreign Wars of United States, 56 Ill App2d 343, 206 NE2d 316 (1965). The complaint reveals: Plaintiff was free from contributory negligence; plaintiff was injured and suffered damage as a result of the introduction of pantopaque into his body; that pantopaque was negligently permitted to remain in his body; and plaintiff neither knew nor should have known of the facts of the injury to his body until within a period of less than two years preceding the date of filing his lawsuit.

The issue presented on appeal is whether pantopaque is a foreign substance within the meaning of the following statute; Ill Rev Stats, c 83, § 22.1 (1965) which provides :

Whenever in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood or bone, is is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body. . . .

Defendants contend that the legislative intent in enacting this statute was to extend the period in which an action may be filed only in those instances in which an item is unwittingly mislaid in the body, when it was not anticipated or expected that any object would be left in the body permanently; and that the Legislature did not intend to include well-established medical procedures which require that a foreign substance or some part of it remain in the body.

Statutes of limitation, like other statutes, must be construed in the light of their objectives; they are liberally construed to fulfill the object for which they were enacted. Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill2d 273, 122 NE2d 540 (1954); Thornton v. Nome and Sinook Co., 260 Ill App 76 (1931). The intention of the Legislature is to be determined more from the consideration of the general object and purpose for which the statute was enacted than from technical definitions. Tidwell v. Smith, 57 Ill App2d 271, 205 NE2d 484 (1965).

In Mosby v. Michael Reese Hospital, 49 Ill App2d 336, 199 NE2d 633 (1964), the defendant hospital left a surgical needle in the body of the plaintiff during the course of an operation which was not discovered until after the statute of limitations had run. The court held that the plaintiff’s cause of action accrued when she suffered the injury and not when the injury was discovered.

The court in Mosby commented at page 342:

We cannot do what the legislature has failed to do and the order dismissing the plaintiff’s complaint must be affirmed. We are not pleased with this result. The statute barred the plaintiff’s claim before she knew she had been wronged. The defendant’s admitted negligence was not ascertainable to her— she presumably was under anesthetic when it took place—and she certainly has not slept on her rights. It would be more equitable if the commencement of the limitation period were delayed until she discovered the reason for her illness, but the statute does not permit the construction necessary to obtain this equitable result.

Ill Rev Stats, c 83, § 22.1 (1965) was adopted to achieve the more equitable result as suggested by the court in Mosby, that the cause of action accrues when the party “knew or should have known” of the injury.

The legislative intent in enacting Ill Rev Stats, c 83, § 22.1, was to adopt the “knew or should have known” rule in malpractice cases. If the legislature intended the statute to apply only to those cases in which sponges, needles, clamps, and like items are negligently left in the body of a patient, as the defendants contend, they would have chosen different wording to express that intent.

In Prince v. Trustees of University of Pennsylvania, 282 F Supp 832 (1968) the court in dicta discussed the purpose of the “knew or should have known” rule. The court at page 843 stated:

The purpose of the “discovery rule” is clear: it is to prevent the plaintiff from being penalized unfairly for failing to redress an injury, the cause of which he could not reasonably have known.

The Hlinois statute provides in part “. . . any foreign substance other than flesh, blood or bone. . . .” We think the facts, as pleaded, come within the technical definition of the statute as well as the object and purpose of the statute. “Any” is defined as being one indiscriminately of whatever kind. “Foreign” is an adjective used to modify substance. “Other than” has been construed to create an exception. Schmude v. Hansen, 28 Wis2d 326, 137 NW2d 61 (1965). Although “substance” is not explicitly defined, it is defined by implication. “Substance” is any matter or thing other than flesh, blood or bone. Since pantopaque is a substance other than flesh, blood or bone, we hold it is a foreign substance within the meaning of the statute.

Defendants cite as authority Rothman v. Silber, 90 NJ Super 22, 216 A2d 18 (1966) for the proposition that pantopaque is not a foreign substance. In Rothman, plaintiff sued defendants for the negligent administration of an anesthetic, which plaintiff alleged was neither “known nor should have been known” until the statute of limitations had run. The Rothman court held that anesthetic was not a foreign substance so as to extend the period of the statute of limitations until the plaintiff knew or should have known of the injury. New Jersey does not have a statute such as the statute involved in the present appeal. The “knew or should have known” rule was an exception to the statute of limitations carved out by judicial decision. Fernandi v. Strully, 35 NJ 434, 173 A2d 277 (1961). Besides being distinguishable because there was no statute in Rothman to guide in the determination of that case, it is also distinguishable on its facts. In Rothman, the court said, “. . . [the knew or should have known rule was] never intended to apply to such a drug (anesthetic) .... A drug . . . loses its identity quickly after injection or ingestion.” Anesthetics may well lose their identity after injection; pantopaque, however, does not lose its identity.

Defendants also argue that the complaint was properly dismissed since, medically, it is seldom possible to remove the pantopaque completely, and, in fact, it might not be desirable to try to do so. This could, of course, become a fit subject of proof, but the argument misses the point that the only pantopaque with which the complaint is concerned is that which is alleged to have been permitted to remain through negligence.

Since plaintiff’s complaint alleged that the injury was caused by defendants’ negligence in permitting a foreign substance to remain in plaintiff’s body, of which he neither “knew nor should have known” until within two years of the filing of this lawsuit, the trial court erred in dismissing the complaint.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


text:
    Robert Sawchyn, a Minor, by John Sawchyn, His Father and Next Friend, and John Sawchyn, Individually, Plaintiffs-Appellants, v. Clarence Samlow, Defendant-Appellee.
    Gen. No. 52,265.
    First District, Fourth Division.
    April 16, 1969.
    Rehearing denied May 19,1969.

      Anton W. Makar, of Chicago, for appellants.
    Joseph A. Bailey, of Chicago (J. Stanley Clark, of counsel) , for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs brought suit to recover damages occasioned by the alleged negligence of defendant in the operation of his motor vehicle. Plaintiffs’ complaint was in two counts. Count I was to recover personal injuries suffered by Robert Sawchyn (hereinafter referred to as plaintiff), and in Count II John Sawchyn, plaintiff’s father, sought to recover for property damage to his automobile. After a bench trial the court entered judgment for defendant. Plaintiff presents the following issues for review: that the trial court, erred in finding for defendant against the manifest weight of the evidence, improperly ruled on objections, deprived plaintiffs of a fair trial and failed to find defendant guilty of negligence as a matter of law.

The collision occurred in the northwest quadrant of the uncontrolled intersection of Melrose and Melvina Streets in the City of Chicago. Melrose runs east and west; Melvina runs north and south. Each is 30 feet wide and located in a residential area. The intervening corner had shrubs and trees, with heavy and low hanging branches. Photographs reveal that this tended to obscure and interfere with a motorist’s view.

Plaintiff, then 16 years of age, was operating his father’s motor vehicle in a westerly direction on Melrose Avenue. At the time of the collision plaintiff had about eight months’ driving experience totaling approximately 800 miles. Defendant was operating his motor vehicle southbound on Melvina Avenue, thus approaching the intersection from plaintiff’s right. It was a sunny, dry day. There were two impacts. The first involved the left front portion of defendant’s motor vehicle with the right front portion of plaintiff’s motor vehicle. The second impact involved the left rear portion of defendant’s motor vehicle with the right rear portion of plaintiff’s motor vehicle.

Plaintiff’s vehicle came to rest 5 or 6 feet south of the center of Melrose, facing west with its rear portion blocking the west crosswalk. It had traveled 16 to 20 feet from the location of the first impact. Defendant’s vehicle came to rest facing a westerly direction on Melrose, with the rear of the vehicle still in the northwest quadrant, 1 or 2 feet north of the center of Melrose Avenue. Defendant’s vehicle was the only one that made any skid marks. The skid marks started just west of the center of Melvina and north of the north crosswalk of the intersection, continued south into the intersection to within a few feet north of the center of Melrose and then curved sharply westward for about 5 or 6 feet. A police officer testified the skid marks measured 50 feet in total length. There is no evidence as to whether the measurement was made from the rear wheels or front wheels of defendant’s vehicle or, as would seem likely from the photograph, from a combination of front and rear wheels. Thirteen photographs depicting views of the intersection, streets, skid marks and the vehicles were placed in evidence. There were no eyewitnesses to the collision other than plaintiff and defendant.

Plaintiff testified that as he approached the intersection he slowed down when he was 50 feet from the east curb of Melvina, to a speed of 15 to 20 miles per hour. He was able to see only 50 to 60 feet north on Melvina, because there was a tree in front of the house on the corner which blocked his view.

Plaintiff testified further that he continued watching in the same direction until he could see between the tree and the house; he then could see the west side of the Melvina pavement for about 150 feet north of the north line of Melrose. He observed no vehicles either parked or in motion on the west side of Melvina. At this time, the front of his vehicle was about 30 feet east of the east curb line of Melvina. Plaintiff looked to his left, that is south, then straight ahead, and began to accelerate through the intersection.

Plaintiff testified that as the front of his vehicle crossed the midline of Melvina he suddenly heard a screeching of brakes and saw out of the side of his eye a black flash that came up from his right side and the impact of the vehicles occurred. Plaintiff testified his vehicle at the moment of impact was moving between 20 to 25 miles per hour and that he never saw defendant’s vehicle until he heard the screech of brakes.

Defendant testified he was going south on Melvina at about 20 to 25 miles per hour. When he was about 100 feet from the intersection he glanced left and right and did not observe any traffic. When he came within 50 or 60 feet of the intersection he again looked left and right and did not observe any traffic. As the front of his vehicle approached the north line of the north sidewalk on Melrose he looked to his left and saw plaintiff’s vehicle approaching at approximately 40 miles per hour, at which moment his own vehicle was moving at about 15 miles per hour. Defendant observed the plaintiff at this moment was 90 to 80 feet from defendant’s vehicle at which time defendant testified he applied his brakes and brought his vehicle to a stop just a fraction of a second before the impact.

Plaintiff charges that the trial court erred in its concept of the law; that skid marks are some evidence of speed when coupled with other evidence of speed, otherwise they are meaningless and should not be considered. Plaintiff argues that the trial court’s misconception of the law on this point was manifested during plaintiff’s argument, when the court stated:

“. . . skid marks by themselves are insufficient to establish speed without expert testimony.”

Plaintiff’s argument is that he was not endeavoring to establish a fixed rate of speed in violation of any speed laws, but whether defendant at the time of the occurrence was operating his vehicle at a speed greater than was reasonable and proper under existing traffic conditions. Plaintiff argues that 50 feet of skid marks is evidence of defendant’s negligence in traveling at a speed that was greater than reasonable and proper and should be accepted as such by the trier of fact without an expert.

Plaintiff argues that the court’s concept of the law was tantamount to directing a verdict for defendant. We do not agree with plaintiff. On the motion to vacate and for a new trial, the court in a colloquy with plaintiff’s counsel said:

The Court: “I want you to know right now, my finding, based on the fact that I find the 50 feet of skid marks, to me is not evidence of excessive speed. Now, that was my finding on that score. . . .
“. . . Just remember this, your 50 feet came into evidence, and if you have a jury, a jury would have determined whether 50 feet of skid marks was evidence of excessive speed, and in the same way, I came to a conclusion. As a matter of fact, to me it was not evidence of speed, excessive speed, let’s say that.”

The foregoing recitation by the trial court obviates the argument that the trial court determined skid mark evidence in this case was meaningless.

Plaintiff complains that the trial judge considered technical evidence predicated upon the court’s personal knowledge. Plaintiff makes recourse to his post-trial arguments, when another colloquy between the court and plaintiff’s counsel reveals the following:

Plaintiff’s counsel: “. . . If the Court does not want to say that 50 feet of skid marks is evidence of excessive speed, if the Court says that is immaterial, then I cite the defendant in this case did not have adequate brakes, otherwise he would have been able to stop his car within that 50 feet.”
The Court: “I think you ought to have it in the record here: See, if you don’t have brakes, good brakes, it is impossible to lock them up.
“Now, let that stand in there. This is my personal observation over a period of years driving race cars, what I have observed about brakes. That is common knowledge too among people, mechanics and various people.”

Resort to plaintiff’s closing argument reveals that plaintiff’s counsel had said:

“Now, your Honor knows very well from your own experience that at 15 miles to an hour you are going to bring your car to a stop much sooner than that.”

Plaintiff invited the court to consider its personal experience in the operation of a motor vehicle. The court responded:

“I do not so know. That isn’t my experience. Do you know what causes a skid? When you lock up all your brakes your car goes into a skid.”

Plaintiff complains that the trial court’s interruptions during arguments before the finding and at the post-trial proceedings deprived plaintiff of a fair, impartial trial and he was deprived of an orderly, well preserved argument because of interruptions by the trial court which disrupted plaintiff’s train of thought and logical presentation of his argument. Plaintiff earnestly urges that the court’s conduct destroyed the effect of his argument and should require a reversal. We find that most, if not all, of the points raised by plaintiff as error, are products of colloquies between plaintiff’s counsel and the trial court. The trial transcript does not reveal any merit to plaintiff’s contentions under this point.

Plaintiffs argue that the trial court disregarded defendant’s testimony in not finding defendant guilty of negligence as a matter of law. Under this point plaintiffs contend defendant’s testimony reveals that he failed to keep a proper and sufficient lookout, and after danger to plaintiff was imminent failed to deviate from the collision course.

The defendant’s testimony did not establish as a matter of law that after he discovered the dangerous situation he could have done any more than applying his brakes, as he did, to attempt to avoid the impending collision. As mentioned, the 50 feet of skid marks included 5 or 6 feet at almost a right angle at the point of collision, indicating either that this change in course was accomplished by defendant as an evasive maneuver, or that the change in direction was brought about by the collision, thus reducing the length of the skid marks on which the plaintiff bases his argument from 50 feet to 44 or 45 feet if all the marks were made by the front wheels, or to about 34 feet if they were made by both front and rear wheels. Whether or not defendant took proper preeautions after he discovered plaintiff’s vehicle under the principle of discovered peril and failure to act is a factual question. Rothacher v. Jones, 38 Ill App2d 19, 186 NE2d 157 (1962). Likewise, neither did defendant’s testimony establish as a matter of law that defendant failed to keep a proper lookout. Whether or not a proper lookout was maintained is a factual question. Moss v. Wagner, 27 Ill2d 551,190 NE2d 305 (1963).

Plaintiff also urges that the finding in favor of the defendant was against the manifest weight of the evidence. We hold it was not. The Appellate Court should not substitute its judgment for that of the trial judge who heard the witnesses where there is sufficient evidence upon which the trial judge could base his finding and his finding is not against the manifest weight of the evidence. Busch v. United States Fire Ins. Co., 66 Ill App2d 435, 213 NE2d 584 (1966), Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 226 NE2d 624 (1967).

We hold that the trial court properly entered judgment for defendant.

Judgment affirmed.

ENGLISH and McNAMARA, JJ., concur.


author: MR. PRESIDING JUSTICE DRUCKER ENGLISH, J.,

text:
    In the Matter of the American Arbitration Association Arbitration Between Thomas Karaskiewicz, Plaintiff-Appellee, and Allstate Insurance Company, Defendant-Appellant.
    Gen. No. 52,529.
    First District, Fourth Division.
    April 16, 1969.

      Tim J. Harrington, of Chicago (A. J. Petrucelli, of counsel), for appellant.
    Herbert L. Wisch and Michael A. Mitzen, of Chicago (Dinah B. Dyer, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a judgment of the Circuit Court denying its motion to strike the complaint and dismiss the suit, vacating the award of the arbitrator and returning the cause to the American Arbitration Association for a full hearing. On appeal defendant contends (1) that the complaint should have been stricken for failure to include either a copy of the insurance contract on which the claim was founded or the relevant provisions thereof and (2) that the suit should have been dismissed for failure to state a cause of action. The complaint alleged that plaintiff had an insurance contract with defendant, that pursuant to the arbitration clause plaintiff sought arbitration of its uninsured motorist claims, that pursuant to the rules of the American Arbitration Association an arbitrator was designated and a hearing held and that plaintiff was apprised in writing that the hearing had been closed as of February 27, 1967. The complaint further alleged that subsequent to the closing of the hearing, on March 8, defendant sought leave to file a memorandum containing its statement of the facts and of the law involved in the case, that this violated Accident Claims Tribunal Rules No. 26 2and No. 27 of the American Arbitration Association, and that without advising plaintiff that the hearing had been reopened the Arbitrator “took Defendant’s Memorandum of Law, as irrefutable and confessed” and relied on it to the prejudice of the plaintiff. Defendant moved to strike the complaint and to dismiss the action but the court denied both motions and, at the same time, vacated the award. Leave to file an answer was denied.

Defendant first contends that his motion to strike the complaint for failure to attach a copy of the contract or the relevant provisions thereof should have been granted. Ill Rev Stats, c 110, § 36 (1967) provides in pertinent part that:

If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein ....

Although it was conceded at oral argument that a copy of the insurance contract should have been attached to the complaint we were asked to decide the issue of whether an action could be brought under section 12(a)(3) of the Uniform Arbitration Act (111 Rev Stats, c 10, § 112(a) (3) (1967)) which provides that an award must be vacated if “[t]he arbitrators exceeded their powers. . . .” The allegations of the complaint, which are admitted by a motion to dismiss, were:

(1) that after proofs were closed defendant asked leave to file a memorandum of law with the Arbitration Commission;

(2) that although a copy of the memorandum was sent to plaintiff no leave to file was granted;

(3) that contrary to section 27 of the Accident Claims Tribunal Rules the hearings were not reopened for the purpose of filing the memorandum; and

(4) that the Arbitrator “took the memorandum as irrefutable and confessed” and that he relied on it to the prejudice of the plaintiff.

The parties do not complain of any action of the Arbitrator during the hearing but only raise the issue of whether the term “power” includes the procedures to be followed by the Arbitrator after the closing of proofs. In Fagnani v. Integrity Finance Corp., 53 Del 193, 204-05, 167 A2d 67, the court decided that the provision in the Standard Form of Arbitration Procedure setting a time limit for the arbitrator’s decision was mandatory. The court stated at page 73:

The parties have written this contract adopting the Standard Form of Arbitration Procedure as a part of the agreement. This court should not vary the terms of the contract nor should it write a new one for the parties. While it is true that settlement of a controversy by arbitration is favored by the courts, nevertheless, the authority of the arbitrators is derived from the mutual assent of the parties to the terms of the submission. The parties are bound only to the extent, and in the manner, and under the circumstances pointed out in their agreement, and they have a right to stand upon the precise terms of their contract. Machine Printers Beneficial Ass’n of United States v. Merrill Textile Paint Works, 12 NJ Super 26, 78 A2d 834; United Electrical Radio & Machine Workers of America, Local 411, C. I. O. v. National Pneumatic Co., 134 NJL 349, 48 A2d 295.

We believe the same principle is applicable in the instant case. The rules provided in effect that the closing of the hearings is a cutoff date for the submission of evidence or briefs. If briefs are to be filed thereafter the hearing must first be reopened and a new date set for closing the hearing. This was a grant of a “power” under the contract which required that if briefs were to be filed after the hearings were closed, the hearings would have to be reopened for that purpose. Although defendant requested leave to file the memorandum, no order was ever entered thereon and no hearing date set. Therefore, a consideration of the memorandum by the arbitrator as alleged in the complaint would exceed the “power” granted him by the contract.

We hold that the court’s finding that the complaint stated a cause of action is proper. Plaintiff’s allegations in the complaint that he did not file an objection or reply to the application for leave to file the memorandum do not constitute a waiver of the rules providing for a reopening of the hearing. There was no obligation on him to object since the application might have been denied or if allowed, he had a right to rely on the observance of the rules, viz., that the hearing would be reopened. There was no obligation on plaintiff to reply until leave to file was actually granted.

With reference to the trial court’s refusal to permit defendant to file an answer after its motion to dismiss was denied we find that after a denial of a motion to dismiss the defendant has a right to answer. Lake View Trust & Savings Bank v. City of Chicago, 314 Ill App 386, 41 NE2d 208 (abst).

The judgment is reversed and the cause is remanded to the Circuit Court with directions to strike the complaint for failure to attach a copy of the contract, to grant plaintiff leave to file an amended complaint and to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

McCORMICK, J., concurs.

ENGLISH, J.,

concurring in part and dissenting in part:

I agree that failure to comply with section 36 of the Practice Act would, in itself, be a sufficient reason to strike the complaint. Ill Rev Stats (1967), c 110, § 36. If that were as far as it went, I would concur in the conclusion to reverse and remand with directions that plaintiff be granted leave to amend his complaint by attaching the pertinent parts of the insurance policy. I must take exception, however, to the majority’s interpretation of section 12(a) (3) of the Uniform Arbitration Act as a guide for further proceedings in this case. Ill Rev Stats (1967), c 10, § 112(a) (3).

Though not true earlier, it has long been a generally recognized principle that courts should look with favor upon arbitration as a method of settling controversies. Brown v. Atwood, 224 Ill App 77. As stated in Burchell v. Marsh, 58 US (17 How) 344, 349:

Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes, it should receive every encouragement from courts of equity.

See also School Dist. No. 46 v. Del Bianco, 68 Ill App2d 145, 156-157, 215 NE2d 25.

From this point of view, the rule was evolved that “if an award is in conformity with the general submission and no fraud or mistake appears on its face it will not be interfered with or set aside . . . .” Podolsky v. Raskin, 294 Ill 443, 454, 128 NE 534; see White Star Min. Co. of Illinois v. Hultberg, 220 Ill 578,77 NE 327.

Historically, an arbitrator’s award would be vacated upon the following grounds: fraud, corruption or other undue means (e. g., Commercial Union Assur. Co. v. Parker, 119 Ill App 126); a patent error appearing on the face of the award (e. g., First Nat. Oil Corp. v. Arrieta, 2 Misc2d 225, 151 NYS2d 309); misconduct by the arbitrator (e. g., Jones v. Bishop, 218 Ill App 318); an exceeding of his authority by the arbitrator (e. g., Bierlein v. Johnson, 73 Cal App2d 728, 166 P2d 644).

Section 12(a) of the Uniform Arbitration Act now provides :

(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(S) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing ... as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 2 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

Ill Rev Stats (1967), c 10, § 112(a). The parallel with the traditional grounds is apparent. Cf. Ill Rev Stats (1959), c 10, § 11; Historical and Practice Notes, SHA, c 10, § 112.

However, in construing section 12(a) (3), the majority have, I believe, divorced from its traditional meaning the ground for vacating an award where “the arbitrators exceeded their powers.” In Cook v. Carpenter & Cook, 34 Vt 121, 126, the court stated:

[T]he power of the arbitrator or referee extends to just what the pa/rties have agreed to submit and no more; and if he undertakes to try other matters not submitted, the award is invalid. [Emphasis added.]

In other words, the “power” of an arbitrator refers to the “scope of the submission.” E. g., Leslie v. Leslie, 50 NJ Eq 103, 24 A 319; Harnick v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 127 NYS2d 308; Screen Cartoonists Guild, Local 852 v. Walt Disney Productions, 74 Cal App2d 414, 168 P2d 983. In accordance with this concept of an arbitrator exceeding his power, awards have been set aside when the arbitrator decided more questions than were submitted (e. g., Leslie v. Leslie, supra), when he did not decide all of the questions submitted (e. g., Palmer v. Van Wyck, 92 Tenn 397, 21 SW 761), and when he did not decide the questions submitted within the time in which he was empowered to render a decision (Fagnani v. Integrity Finance Corp., 53 Del 193, 167 A2d 67, the case relied on by the majority).

All the cases just cited do relate, in my opinion, to the scope of the submission, but from this premise the majority mistakenly conclude that the term “power” also encompasses the procedures to be followed by the arbitrator, and with this I cannot agree. In my opinion, neither the statute nor the decided cases contemplate that an arbitration award should be set aside on a mere procedural technicality. Clark v. Courier, 280 Ill 590, 117 NE 720; Steere v. Brownell, 113 Ill 415. To do so would be to make of an award the commencement of litigation rather than its intended end. See Burchell v. Marsh, supra, in which our highest judicial authority encouraged courts to recognize arbitration awards as determining disputes “finally and without appeal.” I should think that if arbitration is to accomplish its purpose, it would have to be less technical than litigation in court, rather than more so. Yet, I cannot conceive of the possibility that, under facts similar to those alleged in this case, we would set aside a court’s judgment as being void for want of jurisdiction. We might find impropriety or error, but we would not decide that a judge under these circumstances had exceeded his powers. See Williams v. Williams, 8 Ill App2d 1, 130 NE2d 291, in which use by the judge of outside investigations and confidential reports was held to constitute reversible error on the authority of many cited cases, all relating to the question of error, and none holding that the power of the court had been exceeded.

In construing the word “powers” as used in the statute, I would equate it to the “jurisdiction” of a court. The sanction against the exceeding of his powers by an arbitrator is the same as a court’s order which is outside its jurisdiction. It may be set aside simply on that account, and no prejudice to the rights of any party need be shown. One of the leading cases in this area of the law is Sherfy v. Graham, 72 Ill 158. In stating the question presented to it for decision, the court used the words “powers” and “jurisdiction” interchangeably, saying at page 160:

But when the arbitrators refuse to hear, act upon and decide such matters as are embraced in the submission, or go beyond it and exceed their jurisdiction, the award may be set aside. Then, did the arbitrators go beyond the powers conferred by the submission in this case, and consider matters not embraced in the submission?

Certainly, if the arbitrator, through partiality or misconduct in committing an error of procedure, were to prejudice the rights of any party, it should be correctable, but the ground for vacating the award would then be section 12(a) (2) quoted above, and not 12(a) (3) as claimed in this case. Or, if the proper procedure were not followed, to the substantial prejudice of a party’s rights, then section 12 (a) (4) would be the appropriate basis for setting aside the award. It should be noted that the key concept in both of these sections is that a party who complains of the wrongs covered thereby must show prejudice to his rights in order to get into court; whereas, the concept of section 12 (a) (3) imposes no such requirement because the award is considered void, being beyond the power or jurisdiction of the arbitrator. Thus, I submit, all questions of error or impropriety must properly fall within sections 12(a) (2) and (4) and prejudice must be alleged.

Examination of the prayer of the complaint discloses that relief was requested under both subsections (3) and (4) of section 12(a), but no facts were alleged which would constitute substantial prejudice to plaintiff’s rights under section 12 (a) (4). Nor was a violation of subsection (4) argued in this court, so that claim may be considered abandoned. In directing further proceedings, we are limited, therefore, to a determination of whether the complaint adequately alleged a violation of section 12(a) (3). The majority finds that it does; I believe it does not.

It is understandable that plaintiff did not attempt to allege any facts to establish prejudice. Even if defendant’s memorandum of law had been filed (which it appears not to have been), and even if it had been read by the arbitrator, it is beyond my comprehension that the rights of plaintiff would have been prejudiced.

The memorandum was attached to the complaint as an exhibit and is therefore available for our scrutiny. It is approximately one letter-size page in length. The first paragraph states that the testimony of the uninsured motorist and his brother was uncontroverted; that the driver, who had bought the car a few days earlier and had driven it only once before, was confronted with a sudden and unexpected failure of brakes. Then follows a quotation from 170 ALR 619, to the effect that liability arises only from negligence and attaches for injuries caused by defective brakes, only if the owner or driver is negligent in failing to discover the defect. In support of this proposition, three cases were cited: Bentkowski v. Bryan, 299 Ill App 217, 19 NE2d 841, Halligan v. Schulman, 31 Ill App2d 168, 175 NE2d 590, and Savage v. Blancett, 47 Ill App2d 355, 198 NE2d 120. And that is all there was to the “Memorandum of Law.” It is hard to imagine a less innocuous document. Plaintiff does not allege in his complaint, nor argue in this court, that the statement of the evidence was inaccurate, nor does he allege that the legal point made is an inaccurate statement of the law; nor does he claim that the award of the arbitrator was contrary to either the facts in evidence or the applicable law. On the contrary, plaintiff concedes that an arbitration award may not be set aside for errors of fact or law, and should be presumed valid. Yet, plaintiff does not allege that defendant’s memorandum caused the arbitrator to reach an incorrect conclusion as to either fact or law, or that there was anything whatsoever which was erroneous about the award itself. In short, the complaint does not allege that there was anything wrong with the award.

Under these circumstances, I submit that our decision in this case goes far toward discouraging arbitration— when agreed principles teach us we should do the opposite—and it goes far also toward making arbitration more technical than a lawsuit. In my opinion, the law should not be that jealous a mistress, and I consider our decision in this case to be sharply anachronistic.

The majority opinion refers to four allegations as the basis of plaintiff’s complaint. The first three do not state any grounds for relief since all they say is that defendant made application for leave to file a memorandum of law, upon notice and with copy to plaintiff; that the request was not granted; and that the hearings were not reopened. The fourth allegation says that plaintiff filed no memorandum of law in reply to defendant’s, and that “thereupon the Arbitrator took Defendant’s Memorandum of Law, as irrefutable and confessed, and, therefore, the Arbitrator considered no further, since the award of the Arbitrator was a denial of the Claimant-Plaintiff’s claim based on a proposition of law that the uninsured motorist’s negligence was excused because allegedly his brakes failed.” Plaintiff does not claim that he was denied an opportunity to oppose defendant’s application for leave to file the memorandum, or that he was denied an opportunity to answer the memorandum.

No citation is needed to support the principle that a trial court (or arbitrator) must be given the chance to correct pending error, if the point is to be preserved for review. It seems certain that, if plaintiff had objected to defendant’s request for leave to file its memorandum, the request would have been denied or plaintiff would have been given leave to reply. It is obvious, however, that plaintiff, in deciding not to object or reply, either recognized the irrefutable character of defendant’s memorandum or sought to obtain a secret advantage, by waiting to see if the arbitrator might rule in his favor, and then, if not, to make the claim which has resulted in this litigation. Since the setting aside of an arbitration award is equitable in its nature, I am greatly impressed by the inequity of rewarding such a position. Even from a strictly legal point of view, this case presents a classic example of waiver.

Before the close of the hearing, either party, as a matter of right, could have submitted a memorandum of law to the arbitrator. Further, the arbitrator had the right to reopen the hearing on his own motion. Since plaintiff was on notice, it would not have constituted misconduct per se for the arbitrator to have read the memorandum. Stone v. Baldwin, 127 Ill App 563, 571. Plaintiff knew of the contents of the memorandum and made no attempt to meet it. Stone v. Baldwin, 226 Ill 338, 344, 80 NE 890. While plaintiff was under no obligation to reply to the contents of the memorandum until leave to file was actually granted, plaintiff was obliged to object to any irregularity in the application before the arbitrator acted on it. If a party to an arbitration is cognizant of any irregularity in the conduct of the arbitrator and does not avail himself of his first opportunity to advise the arbitrator of such irregularity, the right to make it a ground of complaint is waived. Wechsler v. Gidwitz, 250 Ill App 136, 142-143. Plaintiff should not now be heard to complain about an alleged procedural error of which he was aware, and to which he raised no objection until after an unfavorable award had been filed.

... he can not be permitted thus to experiment with the tribunal he had agreed in creating, to occupy the position that he would rest content with its judgment if in his favor, while he held in reserve a complaint he would make if he was not satisfied with the decision. His silence, after he became aware of what he now terms improper conduct, must be regarded as a waiver of such impropriety. Stampfoski v. Steffens, 79 Ill 303.

Seaton v. Kendall, 61 Ill App 289, 293, affd 171 Ill 410, 49 NE 561.

Further, in considering the sufficiency of the quoted allegation, we are governed by a number of well-established principles. As stated in Pierce v. Carpentier, 20 Ill2d 526, 531, 169 NE2d 747:

Motions to dismiss or strike a pleading admit facts well pleaded, but not conclusions of law or conrelusions of fact unsupported by allegations of specific facts upon which such conclusions rest. [Emphasis added.]

Kurtzon v. Kurtzon, 395 Ill 73, 69 NE2d 341; In re Application of County Treasurer, 84 Ill App2d 456, 460, 228 NE2d 269. Such a motion does not admit conclusions of the pleader, opinions, or argumentative matters. Palier v. New City Iron Works, 81 Ill App2d 1, 225 NE2d 67. The motion does not admit the pleader’s interpretation of facts or of exhibits embodied in the complaint. Lustgarten v. First Federal Savings & Loan Ass’n of Chicago, 42 Ill App2d 86, 90, 191 NE2d 434. The allegation that the arbitrator “took the memorandum as irrefutable and confessed” and that he relied upon it to the prejudice of plaintiff is argumentative, an opinion, a conclusion of fact unsupported by averments of the specific facts upon which it rests, and inconsistent with a proper interpretation of the exhibits attached to the complaint.

A pleading must contain direct, positive allegations of fact and not allegations which can be considered averments of fact only by inference. Jorgensen v. Baker, 21 Ill App2d 196, 157 NE2d 773. Among the material facts which were not precisely alleged is that the memorandum ever reached the arbitrator and that he did, in fact, read it before he filed the award. The point is especially significant since an arbitrator is incompetent to testify to facts impeaching his award. E. g., Wechsler v. Gidwitz, 250 Ill App 136. The allegation is also ambiguous as to whether the arbitrator accepted and relied on the statement of the law as was incidentally contained in defendant’s memorandum, or whether he accepted and relied on the memorandum as a correct expression of law about which he had no prior independent opinion. On a motion to dismiss, ambiguities in the pleadings must be resolved against the pleader. Maramba v. Neuman, 82 Ill App2d 95, 227 NE2d 80.

Since, admittedly, the record does not show any action taken by the arbitrator on defendant’s application for leave to file its memorandum of law, we must infer that the arbitrator never read the memorandum. Courts must indulge all reasonable intendments to uphold an award, “as every presumption is in favor of the validity of an award.” Clark v. Courter, 280 Ill 590, 605, 117 NE 720; Brown v. Atwood, 224 Ill App 77; White Star Min. Co. of Illinois v. Hultberg, 220 Ill 578, 77 NE 327; Merritt v. Merritt, 11 Ill 565; Root v. Renwick, 15 Ill 461. Therefore, we must presume that, since the application failed to make a showing of good cause and therefore did not comply with Rule 27 on the reopening of hearings (see majority opinion), the arbitrator ignored the request and did not read the memorandum. In order to overcome this presumption of regularity and state a claim, plaintiff would have to allege specifically in what way the appropriate procedure was violated. That the arbitrator may have happened to agree with defendant’s interpretation of the law falls far short of the required standard.

For all of these reasons, I believe that although the attachment of the insurance policy to the complaint would cure one defect, it would still leave the complaint susceptible to defendant’s motion to dismiss. Whether it could be amended to overcome what I consider to be its defect in regard to section 12 (a) (3), I seriously doubt. In any event, I can’t agree with the majority that it is sufficient as filed.

       SECTION 26. CLOSING OP HEARINGS—The Arbitrator shall specifically inquire of all parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies, the arbitrator shall declare the hearings closed and a Minute thereof shall be recorded. If briefs are to be filed, the hearings shall be declared closed as of the final date set by the Arbitrator for the receipt of briefs. . . . The time within which the Arbitrator is required to make his award shall commence to run, in the absence of other agreements by the parties, upon the closing of the hearings.

       SECTION 27. REOPENING OP HEARING—The hearings may be reopened by the Arbitrator on his own motion, or upon application of a party for good cause shown, at any time before the award is made. . . .

       In Fagnani, the Delaware case relied on by the majority, the award was set aside as not having been filed within the time authorized by the submission. On that very point the Illinois statute recognizes the pertinence of waiver rules by specifically providing:
      A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.
      Ill Rev Stats (1967), c 10, § 108. Obviously, all possible waivers cannot be covered expressly in the statute.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Debbie Adams, Defendant-Appellant.
    Gen. No. 52,929.
    First District, Third Division.
    April 17, 1969.

      Earl E. Strayhom, It. Eugene Pincham, and Charles B. Evins, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Charles Whelan, Jr., and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from judgments entered in the Circuit Court of Cook County where, after a trial without a jury, the defendant was found guilty of prostitution, battery, and resisting arrest, and was sentenced to a term of six months in the House of Correction on each charge, said sentences to run concurrently.

The defendant contends that she was not proven guilty beyond a reasonable doubt and that the complaints under which she was tried and convicted were fatally defective for failure to allege the county and the year in which the offenses were committed.

On behalf of the prosecution, Officer Edward Rifkin of the Chicago Police Department testified that on the night of June 29,1966, he was assigned with Officer Dice to the Vice Unit of the 18th District of the Chicago Police Department. Shortly after midnight, the witness was standing in the vicinity of 600 North Michigan Avenue when the defendant walked by him and then returned to where he was standing. She asked him if he was interested in a party. The officer replied affirmatively, and the defendant told him that this party would “cost him some money.” According to Officer Rifkin, the defendant stated: “I will french you or give you a half and half and it will cost you ten dollars.” The defendant was taken to the officer’s car at which time he identified himself as a police officer and placed the defendant under arrest. The defendant screamed, refused to get into the car, and struck the officer in the face with her purse. With the aid of Officer Dice who at that time approached the scene, the defendant was subdued and taken to the police station. At the station, the defendant again struck Officer Rifkin in the back with one of her high-heeled shoes.

The defendant testified on her own behalf that on the night and at the location in question, Officer Rifkin grabbed her and announced, “Come on, Let’s turn a trick” to which she replied, “Go on. I don’t know you.” Miss Adams stated that she was then pulled into the car and informed that she was being charged with soliciting. She denied that she had struck Officer Rifkin.

The defendant contends that she was not proven guilty beyond a reasonable doubt but noticeably fails to present any argument in support of this contention. Points not argued are waived. (Supreme Court Rule 341 (e) (7); People v. Hamlett, 408 Ill 171, 96 NE2d 547.) It is therefore unnecessary to review this contention.

It is also argued that the complaints were fatally defective because the body of each of the three complaints which were consolidated for trial failed to allege the county and year in which the offense was committed. After the defendant was sentenced, defense counsel submitted a written motion in arrest of judgment wherein the sufficiency of the complaints was attacked. The motion was denied.

It is undisputed that the complaints omitted the county and the year of the alleged offenses. It is also undisputed that the captions of the complaint indicated that the complaints were filed in the Circuit Court of Cook County, and were signed, sworn to and filed on June 29, 1966. The body of each charge did allege that the offense was committed at “600 North Michigan.”

This court in People v. Hill, 68 Ill App2d 369, 216 NE2d 212, upon which the defendant relies, indicated that at the time of that decision there was no authority for holding that venue could properly be laid by alleging merely a street address without alleging the county regardless of the contents of the caption on the criminal complaint. However, subsequent to that decision, the Supreme Court affirmed a conviction under a criminal complaint in which the designation of the county where the offense was committed was omitted. (People v. Williams, 37 Ill2d 521, 229 NE2d 495.) As in the case at bar, the caption of the complaint indicated that it had been filed in Cook County. At pages 524-525 the court stated:

“Where, as in this case, there is no conflict between the caption and the body of the charge, no suggestion that the venue was improper or improperly proved, and no showing of prejudice to the defendant, we see no reason to refuse to read the caption as part of the complaint. So read, the complaint sufficiently designates the county in which the offense was alleged to have been committed.”

(See also: People v. Gregory, 95 Ill App2d 396, 237 NE2d 720.)

In the instant case, there is no suggestion that venue was improper or that the captions were inconsistent with the body of the complaints. Moreover, the testimony of the defendant reveals that she was fully aware of the location of the alleged crimes. Therefore, we find no merit to this contention advanced by the defendant.

The defendant also points to the omission of any designation of the year of each of the alleged offenses. Each complaint recited that the offense was committed on or about “29th June.” Such a defect is merely one of form and does not render the charge fatally deficient. (People v. McGowan, 415 Ill 375, 114 NE2d 407; People v. Schmidt, 10 Ill2d 221, 139 NE2d 726.) Such a defect could have been cured by amendment requested by the defendant (Ill Rev Stats 1967, c 38, § 111-5) or by requesting the State to furnish a bill of particulars (Ill Rev Stats 1967, c 38, § 114-2 (a)).

Since the defendant’s only challenge to the sufficiency of the complaints relative to the allegations of time and place was made after trial by means of a motion in arrest of judgment, the motion was not timely, and the trial court properly denied that motion. (People v. Blanchett, 33 Ill2d 527, 212 NE2d 97.) Furthermore, the record reveals that the defendant was fully aware of the date in question during the trial of the cause. No prejudice could have resulted from these formal rather than substantive or fatal defects.

It is also argued that the defects complained of resulted in charges which cannot be pleaded in bar to a subsequent prosecution for the same offenses. This argument is without merit. In People v. Petropoulos, 59 Ill App2d 298, 327, 208 NE2d 323 (affd 34 Ill2d 179, 214 NE2d 765), the Appellate Court said:

“Concern has been expressed in some of the cases (including Williams) over the need to furnish details in an indictment in order to prevent double jeopardy. We feel that this need not be a problem, because almost every indictment complying with the statute would be adequate to meet this requirement. If in a rare case it were not, then the defendant could introduce the record or parol evidence of his former prosecution. People v. Jankowski, 391 Ill 298, 302, 63 NE2d 362; People v. Brady, 272 Ill 401, 409, 112 NE 126.”

For the foregoing reasons, the judgments are affirmed.

Affirmed.

SCHWAETZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Rice, Defendant-Appellant.
    Gen. Nos. 49,964, 50,066.
    First District, First Division.
    April 21, 1969.
    Rehearing denied April 28,1969.

      Ellis B. Rosenzweig, Wexler, Kane & Rosenzweig, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was found guilty of the offenses of robbery and aggravated battery. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt.

On March 15, 1963, at about 9:25 p. m., Nelson A. Friis was robbed while waiting for a train on the Illinois Central suburban platform at 63rd Street in Chicago. His throat was cut and he was knocked down. His assailant took his wallet which, according to Friis, contained $240 in twenty dollar bills.

Friis testified that he left work at approximately 6:10 p. m. and proceeded to a tavern on 63rd Street near Stony Island Avenue. He drank a few bottles of beer and told the bartender to give defendant, who was sitting alongside of Friis, a bottle of beer. While there Friis had a brief conversation with defendant. At about 7:45 p. m., Friis went to another tavern, the Smile Tap, where he had a bottle of beer. Friis then went to the Blackstone Inn, where he had more beer and talked to the bartender, his friend, Marvin Schroeder. While Friis was in the Blackstone Inn, defendant appeared, and Friis bought him another beer. At about 9:20, Friis left the Blackstone Inn and walked to the Illinois Central station. As he stood on the station platform and about two feet from an electric light, he was grabbed from behind. He turned his head and saw that his assailant was the man who had been sitting next to him in the taverns, whom he identified as the defendant.

Marvin Schroeder, the bartender in the Blackstone Inn, testified that he was a friend of Friis and was on duty when Friis came into the bar. He also identified defendant as one who came into the bar while Friis was there. Schroeder saw that Friis had a lot of money, all in twenty dollar bills. Upon noticing that defendant followed Friis out of the tavern, Schroeder got his hat and coat and followed the defendant. Schroeder was about 150 feet behind defendant, who was about 100 feet behind Friis. When Schroeder reached the I. C. platform he saw defendant wrestling with Friis on the platform. Schroeder called to the defendant to leave Friis alone, but defendant paid no attention. Schroeder saw the defendant take something from Friis and put it in his pocket and then run down the platform. Schroeder followed the defendant down the steps and on to the street, where he hailed a police car and informed them that a man had been robbed on the platform and the assailant had gone down an alley. Schroeder got into the police car, and they drove down the alley to the next street, where defendant was seen hailing a cab. The police car pulled in front of the cab and placed defendant under arrest.

Schroeder returned to the I. C. station, where he found Friis was bleeding heavily from a neck wound. Friis was taken to the Jackson Park Hospital, where seven stitches were required to close the wound in his neck. Both Schroeder and Friis made in-court identification of defendant as the man who had assaulted and robbed Friis.

Defendant contends that he was not proved guilty beyond a reasonable doubt of either robbery or aggravated battery because the State failed to prove that he was armed with a dangerous weapon, an essential element in both offenses as charged in the indictments.

Defendant states that when he was arrested, no weapon of any kind was found on him nor was any weapon ever found by the police. Defendant states that the only testimony indicating that he had a weapon was by the witness Marvin Schroeder, who testified that as defendant was running away from Friis on the platform, a young man shouted at him, “Look out. He has got a razor.” Defendant asserts that the person who made this alleged statement was never produced, and that the statement was hearsay and should not be considered by this court on review. Defendant also states that “no medical testimony was offered by the State to indicate in what manner the cut on Mr. Friis’ neck was made. It is very likely that it was a scratch from a ring or a scratch while falling against the platform or caused in some manner other than by use of a weapon.”

Defendant further asserts that though the indictment charged defendant with taking $200, the evidence showed that defendant was arrested within minutes after the robbery with $80 in his pocket. Also, the wallet alleged to have been taken from the victim was never produced. Defendant argues that these factors raise a reasonable doubt as to defendant’s guilt, and the jury verdicts finding defendant guilty in the manner and form as charged in the indictments are erroneous and should be reversed by this court.

The State argues that the gist of the offense of robbery is the taking of property by force or the threat of force, and the value of the property taken is of no importance. In People v. Carpenter, 315 Ill 87, 145 NE 664 (1924), it is said (p 89):

“The gist of the offense of robbery is the force or intimidation and taking from the person of another, against his will, a thing belonging to him or in his custody. The property taken need not be accurately described, and its value is immaterial so long as it is shown to have a value. Except in an indictment for larceny or where the degree of the offense depends upon value, money need not be described, and the term itself, without any description, imports value.”

See, also, People v. Flaherty, 396 Ill 304, 311, 71 NE2d 779 (1947); People v. Smith, 63 Ill App2d 369, 382, 211 NE2d 456 (1965).

We are convinced that the essential elements of both offenses, including that the defendant was armed with a dangerous weapon, were proved beyond a reasonable doubt. The victim of both offenses and Schroeder, an eyewitness, identified the defendant as the person with whom the victim had been drinking beer and as the victim’s assailant on the railroad platform. The statement made by the bystander and addressed to Schroeder was in the presence of the defendant. It was admissible as part of a direct narrative of the circumstances surrounding the occurrence and within the guidelines of People v. Allen, 17 Ill2d 55, 63, 160 NE2d 818 (1959):

“The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged and any circumstances may be put in evidence which tend to make the proposition at issue either more or less probable.”

Also, the victim testified that his throat was cut during the assault on him by defendant. The existence of a weapon may be inferred from circumstantial evidence. People v. Harrison, 359 Ill 295, 299, 194 NE 518 (1935).

For the reasons given, we find there exists no reasonable doubt of defendant’s guilt, and the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond C. Nelson, Defendant-Appellant.
    Gen. No. 51,229.
    First District, First Division.
    April 21, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Raymond C. Nelson was charged in an indictment with the crime of unlawful possession of a narcotic drug. After a jury trial, the defendant was found guilty and sentenced to the penitentiary for a term of not less than five nor more than six years. On appeal to this court, the defendant contends that the State failed to prove beyond a reasonable doubt that he had constructive possession and knowledge of the narcotics; that the court improperly instructed the jury; and that the indictment upon which he was convicted failed to charge a crime, in that it failed to allege that he knowingly possessed narcotics.

The evidence presented at the trial shows that on February 2, 1965, at approximately 1:43 p. m., Officers Arnold and Williams executed a search warrant at 4940 South Indiana Avenue, Chicago, Illinois, Apartment 232, naming as an occupant the defendant, Raymond C. Nelson. When the officers entered the apartment the defendant was clothed in his shorts and T-shirt, and appeared to have just gotten out of bed. Officer Arnold observed that the bed in the bedroom was ruffled, as if someone had slept in it. A search of the apartment revealed men’s clothing in both rooms of the apartment. On a small table in the bedroom was a brown leather pouch, along with defendant’s wallet and several coins, in which Officer Williams found seven foil wrapped packages, each package containing a white powdered substance. A field test was performed and such powder was tentatively identified as heroin. The defendant denied that the pouch or its contents were his and denied any knowledge of its contents. The defendant dressed himself and was searched, but no narcotics were found on his person. The clothes defendant put on were taken from a closet in the bedroom and other areas of the apartment. The officers and the defendant then proceeded to the police station. The tinfoil packages were brought to the Chicago Police Department’s Crime Laboratory, where their contents were found to contain heroin.

Ida Foster, the manager of the aforementioned building testified that the apartment in question was rented to one Jean Osley, a married woman but not living with her husband, and she produced a rent receipt for the period of January 19, 1965, to February 19, 1965, made out to Mrs. Osley. Written on the rent receipt next to Jean Osley’s name was the word “Dope” which the witness stated she wrote to identify Mrs. Osley from another woman named “Jean” who resided in the building and also because she had reason to believe that Mrs. Osley was a dope addict. Mrs. Foster also stated that she saw the defendant in the apartment on one occasion, but to her knowledge the defendant did not reside in the building.

Dosie Clark, the defendant’s uncle, stated that from December 1964, to February 1965, the defendant lived with him and five other persons at 4941 South Indiana Avenue. Defendant had his own separate room where he kept his clothes and personal effects and ate his meals there during this period.

The defendant, testifying on his own behalf, stated that he resided at 4941 South Indiana Avenue which was directly across the street from the building at 4940 South Indiana Avenue where he was apprehended. On February 1, 1965, he left home about 10:00 a. m., and went to the corner of 47th Street and Indiana Avenue where he met several of his friends. At about 12:00 p. m., he and his friends went to a tavern located at 209 East 47th Street where he drank until approximately 4:00 p. m. Defendant then left the tavern and went to the cleaners to pick up his overcoat and upon leaving the cleaners met several more of his friends, who along with defendant, went drinking for about four to five more hours. It was nearly midnight when defendant left the tavern, and he was, as he stated, “intoxicated.” Due to the late hour defendant was reluctant to go home, as he feared he would wake the children, and while walking in the vicinity of his apartment, he met Mrs. Osley who told him he could stay at her apartment. The defendant had been acquainted with Mrs. Osley since April, 1964, knew her to be a prostitute and had visited her on several occasions prior to the day of his arrest. When defendant and Mrs. Osley arrived at her apartment there was a man already present in the apartment and defendant, after being offered the couch in the kitchen, went to sleep. The next day, Mrs. Osley woke him and told him she was going to the store. Later the police arrived and arrested him.

Defendant denied he was living in the apartment or kept any of his clothes there, denied he had any narcotics when he entered the apartment and denied any knowledge that narcotics were present in the apartment during the time he was there. The jury returned a verdict of guilty. During the hearing on aggravation and mitigation, it was revealed that during the period of July, 1951, to January, 1964, the defendant had been convicted on nine separate occasions of various violations of the Narcotic Drug Act. Defendant was then sentenced to the Illinois State Penitentiary for a term of not less than five, nor more than six years.

Defendant contends that the State failed to establish the crime of possession of narcotics in that the prosecution did not prove beyond a reasonable doubt that the narcotics were in the immediate and exclusive control of the defendant and that the defendant had knowledge of the fact of such possession. Defendant argues that no constructive possession was proven and relies upon People v. Pugh, 36 Ill2d 435, 223 NE2d 115 (1967), a case whose facts are somewhat similar to the case at bar. In the Pugh case, the facts were as follows:

Two police officers executed a search warrant for the premises in question. After they gained entry, they found Mr. Pugh clad in his shorts and T-shirt under the blankets in bed. One of the officers searched the room where Mr. Pugh had been sleeping and found that part of the molding in the room had been hinged. In a compartment behind the molding the officers found a .38 caliber snub-nosed revolver, some money and several packages of narcotics. Mr. Pugh testified that he did not live in the apartment, that he had been in it for about 6 hours, that the apartment belonged to Patricia Plunkett, and that he had no knowledge of the presence of narcotics in the room.

The Supreme Court indicated that since there was no evidence that the defendant rented or lived in the apartment, the State failed to prove beyond a reasonable doubt that the narcotics were under defendant’s control. The court also pointed out that the items were hidden in the apartment and it could not be inferred that the narcotics found were in Pugh’s constructive possession.

Defendant also relies upon People v. Robinson, 102 Ill App2d 171, 243 NE2d 594 (1969), and argues that his above contention falls within the scope of the holding of that case. In Robinson, the State did not show actual possession of the narcotics by the defendant, but attempted to show that the defendant was in control of the premises, and therefore the defendant had constructive possession of the narcotics. Yet the evidence introduced was far short of any persuasive force and weight to conclude or infer that the defendant was in possession of the premises, and the police officers themselves testified that the narcotics could have belonged to any one of the four occupants of the apartment.

In the instant case, the narcotics were not hidden but were found in open view on a night stand in the bedroom next to defendant’s wallet and loose change. There were men’s clothing found in the apartment and Officer Williams testified that when the defendant dressed himself, he took his suit and two coats from the closet in the bedroom. It was shown defendant visited the apartment previously and was seen in the building by Mrs. Foster on several occasions. These facts most certainly distinguish the Pugh case from the case at bar, and we are of the opinion that the narcotics found in the bedroom were in the constructive possession of the defendant. See also People v. Nettles, 23 Ill2d 306, 178 NE2d 361 (1962); People v. Galloway, 28 Ill2d 355, 192 NE2d 370 (1963); People v. Holt, 28 Ill2d 30, 190 NE2d 797 (1963).

The defendant next contends it was reversible error to give the State’s Jury Instruction No. 9 to the jury over defendant’s objection. Such jury instruction reads as follows:

“The Court instructs the jury in the language of the statute that it is unlawful for a person to possess or have under his control a quantity of narcotic drugs except as authorized by law.”

To support his contention, the defendant cites People v. Truelock, 35 Ill2d 189, 220 NE2d 187 (1967). There, the Court affirmed the conviction by saying that it was error giving the above instruction, but not reversible error. The Court said:

“We agree that the trial court erred in giving the objected to instruction and form of a jury verdict in this case. Without proof that a defendant has knowingly possessed a narcotic drug, a defendant cannot be convicted of the crime of unlawful possession of narcotic drugs, and the jury in this case should have been so instructed. However, we do not think that the error in this case requires reversal. ‘Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.’ ” (People v. Ward, 32 Ill2d 253,256.)

The identical jury instruction was considered in People v. Galloway, 28 Ill2d 355, 192 NE2d 370 (1963) and, as pointed out in People v. Lyons, 4 Ill2d 396, 122 NE2d 809 (1955) and People v. Kessler, 333 Ill 451, 164 NE 840 (1929), it is not necessarily reversible error to give such an instruction where facts and circumstances as presented in the instant case have been proved.

The defense also argues that it was reversible error to refuse their Jury Instructions Nos. 12, 13 and 14 which read:

“Defense’s Instruction No. 12 Refused:

“The Court instructs you that to commit the crime of unlawful possession of narcotic drugs, the defendant must have immediate and exclusive control of narcotics and must have knowledge of the presence of these narcotics.

“Defense’s Instruction No. 13 Refused:

“If you find from the evidence on February 2nd, 1965 Raymond Nelson had immediate and exclusive control of narcotics and had knowledge of the presence of these narcotics, you should find Raymond Nelson guilty.

“Defense’s Instruction No. 14 Refused:

“If, however, the State has not proven beyond all reasonable doubt that on February 2, 1965 Raymond Nelson had immediate and exclusive control of narcotics and that he had knowledge of the presence of these narcotics, you should find Raymond Nelson not guilty.”

The defendant’s entire defense was based on the fact that the defendant was not in immediate possession of the narcotics and had no “knowledge” of their existence. The above instructions sought to explain that immediate and exclusive control and knowledge of the presence of the narcotics were essential elements of the crime charged, and had to be proved before defendant could be convicted. In the instant case, the narcoties were found on a table next to the defendant’s wallet and loose change. Men’s clothing was found in the apartment where the woman who rented it lived alone, and the defendant visited the apartment on several other occasions other than the day of his arrest. Under these circumstances, the defendant’s knowledge and control of the narcotics could be inferred, and therefore the instructions offered rightfully refused.

Defendant’s objection to the indictment is based upon the fact that although the charge sets forth a violation of the Uniform Narcotic Drug Act (DI Rev Stats 1965, c 38, par 22-1 et seq.), the indictment does not use the word, nor allege, that the defendant “knowingly” possessed a narcotic drug, pursuant to the holding in People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968). In People v. Bussie, 41 Ill2d 323, 243 NE2d 196, (1969), the Supreme Court has settled this issue arising out of their recent pronouncement in the Mills case:

“It is undisputed that knowledge is an essential element in the chain of proof of the crimes of possession or sale of narcotics. Here both indictments were couched in the language of the Uniform Narcotic Drug Act and we held, in People v. Mills, . . . that such an indictment is sufficient even though it lacks an averment that the defendant committed the violation with knowledge. We noted in Mills that three sister jurisdictions which had adopted the Uniform Narcotic Drug Act prior to its adoption in Illinois have held that ‘knowledge or scienter is implicit in the language of the statute and thus it does not have to be alleged separately.’ We hold therefore that the indictments in question are valid.”

In the Mills case, supra, the Supreme Court clearly set forth its interpretation of the indictments:

“In charging Mills with the ‘offense of possession of a narcotic drug’ which he ‘unlawfully possessed and had under his control’ the indictment twice uses a form of the technical term ‘possession’ which is defined in section 4-2 of the Criminal Code to incorporate knowledge: ‘Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient time to have been able to terminate his possession.’ (Emphasis added.) It is the law in this State that ‘Where a word is so used in one portion of the statute as to have a clearly defined meaning, the same word when used in another portion of the same statute will be given the same meaning . . . .’ (People v. Talbot, 322 Ill 416, 422.) Accordingly we find that the defendant must be held chargeable with notice that the term ‘possession’ used in the indictment implicitly meant knowing possession, and therefore we hold that the indictment returned against Mills was valid although it did not expressly allege that he had knowledge of the narcotics found within his control.”

Since the indictment in the instant case and the Mills case are almost identical, the Mills case is controlling here and the rule is clear that an indictment is valid even if the word “knowingly” is not used.

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.