text:
    People of the State of Illinois, Plaintiff-Appellee, v. Aaron Oberlander, Defendant-Appellant.
    Gen. No. 53,266.
    First District, First Division.
    April 21, 1969.

      Julius Lucius Echeles, JoAnne F. Wolfson, and Frederick F. Cohn, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Aaron Oberlander was indicted on the charge of committing the offense of gambling on September 8, 1967, “in that he knowingly possessed books, instruments and apparatus by means of which bets and wagers were made, recorded and registered” in violation of section 28-1 (a-5) of the Criminal Code (Ill Rev Stats 1967, c 38, §28-1 (a-5)). The defendant waived a jury trial, was found guilty of the offense charged and was placed on probation for a period of two years.

On appeal, the defendant contends (1) that the court erred in permitting a State’s witness to give an opinion without demonstrating proper qualifications therefor; (2) that he was denied his constitutional right to cross-examine the State’s so-called expert witness; and (3) that the evidence was insufficient to sustain a conviction.

On September 8, 1967, Officer Alex Zablocki, a vice detective for the Chicago Police Department, in the company of three other police officers, entered the one and one-half room apartment of the defendant at 40 East Oak Street, pursuant to a search warrant. Officer Zablocki, who had been assigned to the gambling unit for one year, testified that they found the defendant alone when they entered the apartment. Officer Zablocki stated that he had previously made about fifty arrests on gambling charges and had testified in court in twenty-five cases where he was called upon to read certain writings and render an opinion as to what the writings constituted. In the present case he identified two sheets found in the defendant’s apartment near the telephone which, in his opinion, over objections, contained bets. He interpreted the writings on the sheets as containing bets on different baseball games and parlay bets in specific dollar amounts. Officer Zablocki also found another small slip of paper which he called a “slough sheet,” which he said contained the amount each individual better won or lost.

Officer Zablocki further testified that during the thirty minutes they were in the apartment the telephone rang four or five times. The first caller said “Obie” and when the officer answered “yes” the party hung up. He noted individual bets that were made in subsequent phone calls on a piece of paper. One was for Ben for a $100 wager on the Phillies. The next call was for a $100 wager on the New York Yankees. On cross-examination Officer Zablocki interpreted some of the markings on the sheets, but admitted that he could not understand many of the other markings.

The defendant, testifying on his own behalf, stated that he was single and that he had resided in the apartment for five months before his arrest. He said he was a steward and host of the Whiskey A-Go-Go for the past three years. He earned $275 per week and had 23 employees under his jurisdiction. He said that when Officer Zablocki looked at the sheets of paper found in his apartment, he asked “what is this Hebrew.” Mr. Oberlander further testified that the police searched his apartment which he said he also used as an office where important entertainers and assistants would come to discuss their problems and negotiate contracts. He stated that he never saw the sheets in question before the arrest and that they may have been left by any of his many visitors. On cross-examination he testified that the notations on the sheets were not in his handwriting. Over objections the court permitted the prosecutor to require the defendant to write the alphabet from A to Z and the numbers 1 through 0 and to sign his name three times on a piece of lined paper. This paper was introduced into evidence over the defendant’s objections. Oberlander also testified that Officer Zablocki answered the telephone, but that he did not observe the officer write anything down. He also denied that he was known as Obie.

The defendant contends that Officer Zablocki was erroneously permitted to give his opinion “as an alleged ‘expert’ that certain pieces of paper with writing were ‘baseball bets.’ ” The defendant contends that a proper foundation was not laid for this witness’s testimony.

It has been well established that the admissibility of expert testimony is to be determined by the trial judge and a wide latitude of discretion is given to the court in the determination of such admissibility, unless it is clearly and prejudicially erroneous. People v. Harges, 87 Ill App2d 376, 231 NE2d 650. The expert’s opinion, however, may be accepted or rejected by the trial court. Expert testimony is admissible when experience and observation in a special calling gives the expert knowledge of a subject beyond that of persons of common intelligence and ordinary experience. People v. Belcastro, 356 Ill 144, 190 NE 301. An expert has been defined as a person who is qualified, either by actual experience or by careful study, and may be competent to testify as an expert in proper circumstances although his knowledge was acquired through practical experience rather than scientific study, training or research. Pearson v. Zehr, 138 Ill 48, 29 NE 854. There is no precise requirement as to the mode in which skiU or experience shall have been acquired.

Applying these principles to the present case we do not think that the trial court erred in allowing Officer Zablocki to testify as an expert. The record reveals that Officer Zablocki had been assigned to the gambling unit of the yice Squad for one year, had participated in over 50 gambling arrests during that period, and had testified in 25 trials stemming from those arrests.

The defendant informs us that the situation in the case at bar is similar to that in People v. McClellan, 34 Ill2d 572, 218 NE2d 97. In that case the police officer testified that they had made three previous arrests based on information given to them by an informer. The reversal in McClellan turned on the fact that it was not shown that the informer’s information previously given had proven to be accurate. The holding there relates to reliability of an informer where an arrest was made without a warrant. In our opinion, the MeClellan holding has no applicability to the qualifications of an expert witness.

The defendant stresses that from the present state of the record, it is clear that the officer only guessed, surmised and believed that the written items were gambling wagers. “For the present state of the record, it is impossible to determine whether the witness was accurate in his beliefs which were expressed in court.” We must note, however, that in addition to the disputed expert testimony of Officer Zablocki, the court had at its disposal the actual exhibits involved and could have rejected the opinions of the witness. The weight and credibility to be given this evidence was for the trial court to decide and we will not disturb its finding on the state of this record. People v. Harges, 87 Ill App2d 376, 231 NE2d 650.

It is also contended that the defendant was denied his constitutional right to cross-examine Officer Zablocki. The defendant particularly raises this objection to the following ruling of the trial court:

Q. Now, I think the State’s Attorney asked you about a number of times that you testified in court and you said about 25 times, is that right?
A. That is true, sir.
Q. When was the last time you testified in court, Officer Zablocki?
A. Monday of this week in Branch 27.
Q. In Branch 27?
A. Yes.
Q. What was the name of the case ?
The Court: Sustained.

The defendant compares the curtailment of this inquiry to the situation where a prosecutor refused to give a defendant the true name of a witness, as occurred in Smith v. Illinois, 390 US 129. We are not in accord. The record clearly shows, in the case at bar, that the officer was extensively cross-examined about his qualifications to give the opinion testimony. The limit to which cross-examination should be permitted rests soundly in the discretion of the trial judge, and where there has not been an abuse of that discretion, we will not disturb the conviction. People v. Woods, 26 Ill2d 582, 187 NE2d 692.

The defendant’s final contention is that the evidence was insufficient to sustain the conviction. This claim is another attack on the testimony of Officer Zablocki which we have already adequately discussed and need not repeat. The fact that the officer could not interpret all of the markings on the sheets of paper, but could only state his best judgment, was a factor to be considered by the trier of the fact. Another factor that was considered by the trial judge was the officer’s testimony that four or five calls were made to the apartment, two of the callers hung up after the officer answered and two of which were for the purpose of making bets. The court obviously rejected as incredible the testimony of the defendant that he had not seen the sheets of paper containing notations even though they were found lying next to his telephone in his small apartment. It is well established that we will not disturb the findings of the trier of the fact and substitute our own conclusions unless the proof is so unsatisfactory as to justify a reasonable doubt as to the defendant’s guilt. After a careful examination of the record we cannot say that the conclusion of the trial court was unwarranted. The evidence was sufficient to sustain the conviction.

The judgment of the Circuit Court is therefore affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Percy Panarsky, Plaintiff-Appellee, v. Ramon Perez, Defendant-Appellant.
    Gen. No. 53,294.
    First District, First Division.
    April 21, 1969.
    Judgment reversed. Ron W. Fritsch, Paul Beard, and Marvin Gerstein, of Chicago, for appellant; no brief for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


author: EBERSPACHER, J.

text:
    The First National Bank of Mt. Vernon, Illinois, Plaintiff-Appellee v. The Conference Claimants Society of the Southern Illinois Conference of the Methodist Church, a Corporation, Defendant-Appellant, Ace Summers, et al., and Paul Wielt, d/b/a G. F. Wielt Company, Defendants-Appellees.
    Gen. No. 68-40.
    Fifth District.
    May 29, 1969.
    William C. Stephens, Murray & Stephens, of Centralia, for appellant.
    Donald G. Musick, Kirk & Musick, of Mt. Vernon, for appellee.
   EBERSPACHER, J.

This is a suit to have an agreement for warranty deed construed as a mortgage and to set aside a forfeiture of the agreement which had been declared by the seller. The Circuit Court of Jefferson County, Illinois, found the agreement to be an equitable mortgage and ordered a sale of the original purchaser’s interest in the real estate subject to the mortgage. The defendant, contract seller, has appealed from that decree.

The facts as may be gleaned from the record are as follows:

Sometime in 1956, Jennie Hinman, being then the owner of a piece of real estate known as 3 Hinman Place, Mt. Vernon, Illinois, entered into a contract for deed with Gale and Nelda Mae Blanton to sell it to them for a total consideration of $11,000, payable $1,000 down, interest quarterly for two years, and then the balance. When the time came to pay the balance in 1958, the Blantons were unable to complete the contract. Arrangements were made with the defendant and appellant herein, Conference Claimants Society of the Southern Illinois Conference of the Methodist Church (hereinafter referred to as the Society), whereby the Society paid off Mrs. Hinman and received a deed to the real estate and then entered into an agreement for warranty deed, dated August 5, 1958, agreeing to sell the real estate to the Blantons for a consideration of $8,000 payable in monthly installments of $70 each for eighteen months and then $100 per month until the entire amount, with interest, was paid. Blanton received no money from the Society. The Blantons agreed to pay the taxes and insurance, which was to be issued in the name of the Society as owner but with the Blantons as additional insured as their interest might appear. The contract further provided that in case of failure of the Blantons to make the payments, or perform any of the covenants required of them, the Society could at its option terminate the contract, retaining any payments made as liquidated damages, and reenter and take possession of the real estate. The contract contained an additional provision, that the Blantons would pay to the Society all court costs, reasonable attorneys’ fees, Master’s fees, or other expenses which may be incurred by the Society in enforcing compliance with the terms of the agreement or for the foreclosure and sale of the real estate. The contract recited that time was of the essence of the contract, and that it was binding upon the heirs, executors, administrators and assigns of the parties. On August 19, 1958, the attorney that prepared the contract for deed gave the Society a written opinion, stating that fee simple title was vested in the Society, subject among other things to an unrecorded contract for deed in favor of the Blantons.

After entering into the agreement with the Society, Gale Blanton again experienced financial trouble, and borrowed $2,850 from the First National Bank of Mt. Vernon in May, 1959, and another $800 in October, 1959. These notes were renewed from time to time. On March 21, 1960, Ace Summers obtained a judgment for $6,400 against Gale Blanton, and on June 10, 1960, filed an “Affidavit Concerning Claim for Lien” with the County Clerk. The Bank, meanwhile, called on the Blantons for collateral for its notes, and on June 20, 1962, Gale and Nelda Blanton executed an assignment for all of their interest “in a contract for deed dated the 5th day of August, 1958, from Conference Claimants Society . . . in favor of Thomas Gale Blanton and Nelda Mae Blanton,” to secure the payment of the $2,850 note. On the same day Gale Blanton made a similar collateral assignment to secure the payment of a renewal of the $800 note, now increased to $918.60 by the addition of interest on the two notes. On July 25, 1960, Gale Blanton made another assignment of his interest in the contract to Ace Summers, which assignment recited the prior assignments to the Bank and stated that it was subject to them. A copy of this assignment to Summers was delivered to the bank a few days later.

Blanton defaulted in his payments under the contract, and also failed to pay the taxes and insurance. Sometime between September, 1960, and the summer of 1961 they moved out of the house. In the meantime the Society contacted the President of the plaintiff Bank, informing him of the default by the Blantons, and asked if the Bank was interested in taking over the contract, paying the taxes and insurance and bringing it to a current status. He stated that the Bank did not want to take over the contract, although it knew it was in default. With the contract nearly a year in default, the Society prepared a formal written notice of forfeiture of the contract with the Blantons, which notice was served upon both the Blantons and the Bank on June 13, 1961. The Society then negotiated with Ace Summers to sell him the property, and on January 16, 1962 entered into an Agreement whereby it agreed to convey the real estate to Ace and Amy Summers, free and clear of all encumbrances.

On January 3, 1963, about eighteen months after the written notice of forfeiture, the Bank filed a complaint against the Blantons, the Conference Claimants Society, the Summers and the Wielts (who had filed a mechanic’s lien claim in October, 1960), alleging that the contract for deed dated August 5, 1958 between the Society and the Blantons was in fact a mortgage which could not be terminated except by foreclosure in a court proceedings and that the Bank was the holder of the equity of redemption. The plaintiff made no offer to fulfill the terms of the contract. The complaint asked that the Court order an accounting of the amounts due the parties, determine the priorities one to another, and that defendants or some one or more of them be decreed to pay plaintiff and other parties who might be determined to be entitled to payment, the amounts found due; and that in default of such payments the property be sold to satisfy the sums due the parties.

The Society answered the complaint, denying that the contract was a mortgage, denying that the forfeiture was ineffective, and as an affirmative defense alleging that the Bank was guilty of laches in failing to raise the question until after the Society had changed its position, so that the Bank was barred from bringing an action to reform the contract. The Summers filed a similar answer. The Blantons and Wielts failed to answer and were defaulted.

The Court found the agreement for deed between the Society and the Blantons was in fact a mortgage, that title to the premises was in the Blantons, and that the Blantons owed $8,367.45 to the Society, $3,766.90 to the Bank and $1,713.18 to Ace Summers. The court ordered the Blantons to pay the sums owed by July 15, 1964, and that if they should fail to do so, the property be sold by the sheriff subject to the mortgage of the Society.

The defendant, Society, the sole appellant herein, asserts that the trial court erred in its finding that the contract for deed was in fact an equitable mortgage and that the plaintiff was not guilty of laches.

Turning first to the principal issue, i. e., the construction of the contract for deed, both of the parties have filed well documented briefs in support of their respective positions. The resolution of the issue does not involve the weighing of the evidence, which is virtually undisputed, but the application of the law as it would apply to the bizarre facts that are presented herein. However, in the view we take, a decision on that issue is unnecessary to this opinion.

There is no dispute that written notice of forfeiture of the contract for deed was served upon the plaintiff eighteen months before the plaintiff filed their complaint. It is also clear that sometime prior to the forfeiture the plaintiff was afforded the opportunity of assuming the contract. Six months after forfeiting the contract the defendant entered into a new contract for deed with a third party, obligating itself, upon the payments being made, to convey “in fee simple clear of all incumbrances whatever.” Then for a period of one year, January 16, 1962, until January 13, 1963, the third party made substantial expenditures which included payment of taxes, improvement to the property and payments to the defendant pursuant to the terms of that contract. There is no evidence that the plaintiff sought to assert their alleged interest as to any party until the filing of their complaint.

It is our opinion that the circumstances demonstrate that the plaintiff is guilty of laches.

As stated by our Supreme Court in Pyle v. Ferrell, 12 Ill2d 547, 553, 147 NE2d 341 (1958), a suit is held to be barred on the ground of laches or stale demand where the following facts are disclosed:

“(1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy;
“(2) Delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit;
“(3) Lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and
“(4) Injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.”

The facts and circumstances present in this case meet these requirements and demonstrate conclusively that it would be most inequitable to affirm the relief granted to the plaintiff in the trial court considering the delay in bringing suit and particularly the prejudice that would be caused to the defendants and the third party who had been permitted to substantially change their position by the inaction of the plaintiff.

Accordingly, the Decree entered by the Circuit Court of Jefferson County, Illinois is reversed and the cause dismissed at plaintiff’s costs with prejudice.

GOLDENHERSH and MORAN, JJ., concur.


author: PRESIDING JUSTICE DOVE

text:
    People of State of Illinois ex rel. Glenn Palmatier, Petitioner-Appellant, v. Francis Tighe, Respondent-Appellee.
    Gen. No. 10,882.
    Second District.
    July 9, 1956.
    Rehearing denied July 30, 1956.
    Released for publication July 30, 1956.

      Joseph Keig, Sr., of Chicago, for appellant.
    Reid, Ochsenschlager & Murphy, and Harold L. Beamish, all of Aurora, for appellee; Harold L. Beamish, L. M. Ochsenschlager, and Robert B. Hupp, all of Aurora, of counsel.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

Upon a motion by Glenn Palmatier and notice to respondent, Francis Tighe, a rule was entered by the Circuit Court of Kane County directing respondent to show cause why petitioner should not be granted leave to file his complaint in the nature of quo warranto. Subsequently leave was granted petitioner to amend his petition and respondent duly served with a copy of the proposed petition as amended. The respondent appeared, filed a verified answer setting forth the reasons why leave should not be granted. A hearing was had resulting in an order denying petitioner leave to file his complaint and dismissing the proceeding. To reverse that order, petitioner appeals.

The petition, as amended, alleged that petitioner was a resident of the City of Aurora, Kane County, Illinois, and was, on March 11, 1955, duly appointed Chief of Police of that city by Paul Egan, Mayor of said city; that on March 14, 1955, he filed his bond and oath of office and made a demand upon respondent, Francis Tighe, then acting Chief of Police of said city, for the keys, files and records of the office to which he was appointed, but his demand was refused. The amended petition further alleged that the City of Aurora operates under the commission form of municipal government and on January 12, 1955, the said Paul Egan, Mayor of said City and also the Commissioner of Public Affairs of Aurora, discharged the respondent from the office of Chief of Police of Aurora, but that notwithstanding his discharge, the said respondent continues to hold said office and continues to exercise the duties and privileges thereof.

It was then alleged that petitioner has requested the Attorney General of the State of Ulinois and the State’s Attorney of Kane County to file a proceeding in quo warranto against the respondent in order to test his right to hold said office of Chief of Police, but his requests have been refused. The prayer of the amended petition was that petitioner - be given leave to file a complaint in qno warranto against the respondent requiring him to show by what authority he exercises the office of Chief of Police of the City of Aurora.

The reasons set forth in the answer of the respondent why leave to file a complaint in quo warranto should be denied are: (1) the amended petition fails to allege facts showing that petitioner has the special and personal interest required by law to entitle him to maintain a quo warranto proceeding; (2) that said amended petition fails to allege facts showing the legal appointment of the petitioner as Chief of Police of the City of Aurora in accordance with the statutes of the State of Illinois and the ordinances of the City of Aurora; (3) that said amended petition fails to allege that petitioner executed and filed his bond in the manner and form required by law; (4) that said amended petition fails to allege that the purported appointment of petitioner as Chief of Police of the City of Aurora was confirmed by the City Council of the City of Aurora as required by its ordinances; (5) that'it would not be to the best interests of the City of Aurora and its citizens or of the people of Illinois if petitioner were allowed to file his complaint in quo warranto for the following reasons: (a) that petitioner has no training or experience which would qualify him to perform the duties of Chief of Police; (b) that respondent has been a police officer for more than twenty-four years and is singularly fitted by experience and training to perform the duties of Chief of Police; (c) that petitioner is the subject matter of a case pending in the Circuit Court of Kane County, filed by petitioner’s wife, asking triple damages against four retail liquor dealers as a result of gambling losses sustained by petitioner; (d) that on March 16, 1955, the City' Council of the City of Aurora adopted a resolution disapproving the appointment of petitioner as Chief of Police, specifically disapproving the purported bond filed by him, a copy of which resolution was attached to and made a part of the answer; and (e), that the appointment of petitioner was not a bona fide appointment. The answer further charged that petitioner was a defaulter to the City of Aurora and as such was ineligible to hold any municipal office in said city.

The record discloses that the City of Aurora has a population in excess of 50,000 and that it operates under the commission form of municipal government (Ill. Rev. Stat., chap. 24, sec. 19 — 1 et seq.). The city is therefore governed by a council composed of the mayor and four commissioners. The executive and administrative duties and powers in the city are distributed among five departments; viz.: the department of public affairs, the department of accounts and finances, the department of public health and safety, the department of streets and public improvements, and the department of public property. The Mayor is superintendent of public affairs, and the police department is assigned to and made a part of this department (Ill. Rev. Stat. chap. 24, sec. 19 — 43).

The statute also provides thát the council has the right and power to appoint and discharge the heads of all principal departments subordinate'to the foregoing five departments, but the commissioner of each department may be vested by ordinance with the sole right and power to appoint and discharge the heads of all principal departments subordinate to the department of which he is the commissioner (Ill. Rev. Stat. chap: 24, sec. 19 — 44).

In 1952 the city council of the City of Aurora passed an ordinance, which, among other things, assigned to the department of public affairs all powers, authority and duties by ordinance and by statute vested in and embraced by the executive department of the municipal government of the city, known as the department of police, and all officers, subordinates and employees thereof, and charged the commissioner of public affairs with complete superintendence of said department of police and the equipment, records and personnel thereof and directed that the Chief of Police and each officer and employee of the department should work under -the control and supervision of such commissioner.

On May 21, 1953, the city council adopted another ordinance which provided: “The commissioner of each department provided for in section 19-41 of chapter 24 of the Illinois Revised Statutes entitled ‘Cities and villages’ is hereby vested with the sole right and power to appoint and discharge the heads of all principal departments subordinate to the department of which he is the commissioner. Such appointments, when made, shall be subject to confirmation by the council.”

It is insisted by counsel for appellant that this is a valid ordinance in so far as it vested the commissioner of public affairs, the Mayor, with the sole right and power to discharge appellee as Chief of Police and appoint appellant as his successor, but, conclude counsel, the provision that “such appointments, when made, shall be subject to confirmation by the council” is plainly void because it is beyond the provisions of the statute. We do not agree. Section 19 — 44 of chapter 24 lodges with the city council the right and power to appoint and discharge the Chief of Police in Aurora.

This same section also empowers the city council to vest, by ordinance, each commissioner with the sole right to appoint and discharge the heads of all principal departments subordinate to the department of which he is the commissioner. As applicable to this case, this ordinance took away from the city council the power to appoint and discharge a Chief of Police and lodged in the Mayor that right and when he did so his choice was subject to confirmation by the council. That is what the ordinance says. Certainly the ordinance must be considered in its entirety. A casual reading of it indicates that the city council did not grant to each commissioner .the sole and conclusive right of appointment or discharge without any restriction, condition or further requirement. The clear meaning of the ordinance is that the right to appoint or discharge should originate with the appropriate commissioner and his appointment or discharge, when made, would he submitted to the council and subject to confirmation by that body. If this is not the correct construction of the ordinance, the entire ordinance should fail and the right to appoint and discharge the Chief of Police and other department heads is taken care of by section 19 — 44 of chapter 24 which lodges this power in the city council.

The record discloses that the city council never discharged or confirmed the discharge of appellee from the office of Chief of Police nor ever appointed or confirmed the appointment of appellant to that office. The only thing the city council did in connection with this matter was done on March 16,1955, when it adopted a resolution which recited that Mayor Egan had filed with the city clerk the nomination of appellant as Chief of Police of Aurora and that appellant had filed in the clerk’s office a document purporting to be a bond in the sum of $3000. This resolution then continues:

“WHEREAS there is no showing of any previous police experience or any training whatsoever which would qualify the said Glenn A. Palmatier to perform the duties of the Chief of Police of the City of Aurora in a manner which the best interests of the City of Aurora would demand, and

“WHEREAS it appears that it is in the best interests of the City of Aurora that the nomination or appointment be not approved by the City Council:

“Therefore, Be it Resolved that this City Council of Aurora go on record as not confirming or approving either the appointment or nomination of the said Glenn A. Palmatier by the said Mayor, and of not approving the document alleged to be a bond filed by the said Glenn A. Palmatier.

“Be It Further Resolved that a copy of this Resolution be forwarded to the said Glenn A. Palmatier for his information.

“Edward J. Ryan “Robert J. Weiland “John P. Thill f “George Orland

^ . . „ Commissioners.”

Under the ordinance of the City of Aurora, as we construe it, Mayor Egan was given the power to appoint a Chief of Police. He did so. Under the ordinance, his appointment, in order to become effective, must have been confirmed by the council. This was not done, and the record affirmatively shows that the council acted upon the appointment and refused to confirm it. Assuming the ordinance invalid because it provided for confirmation of an appointment by the council, which proviso was not authorized by the statute, then the appointive power continued to be lodged in the council, and the record discloses no appointment of appellant by the council was ever made. Because the record affirmatively shows that appellant was not legally appointed Chief of Police, his interest in instituting a quo warranto proceeding is that of the public at large and he is not authorized to prosecute an information in the nature of quo warranto. A general interest which- every citizen has in the enforcement of law is not an interest which will justify the presentation of an information by a citizen. A private and personal right is necessary. The interest must be special and not common.to the public. (People ex rel. Malone v. Mueller, 328 Ill. App. 593; People v. Fullenwider, 329 Ill. 65.)

■ If we are wrong, however, in the construction we have placed on the. ordinance adopted by the city on May 21, 1953, there is another reason why the order of the trial court was correct. Section 19 — 39 of chap. 24 of our statutes provides that certain enumerated officers and such other officers and employees as the council may designate by ordinance shall, before entering upon their respective duties, execute bonds with good and sufficient security to be approved by the council in such penal sums as may be directed by ordinance. On April 27, 1942, ordinance No. 2560 was adopted by the City of Aurora which required thé Chief of Police to execute a bond to the city in the sum of $2000.

What the record shows with reference to a bond is that appellant alleged in his amended petition that on March 14, 1955, he filed his bond and oath of office. It is not alleged with whom or where he filed it, nor is it alleged that it was ever approved and accepted. The answer of appellee averred that the amended petition was defective because it failed to allege that appellant executed and filed his bond in manner and form as required by law. Upon the hearing, evidence was produced, and it- appears from the resolution adopted by the council on March 15, 1955, that the council did not approve “the document alleged to be a bond filed by the said Grlenn A. Palmatier.” Before appellant can successfully assert a claim to the office of Chief of Police, the provisions of the applicable statute and ordinance with reference to a bond must have been complied with or some facts disclosed which would excuse compliance therewith. Appellant’s alleged appointment could not .have become effective until his bond was filed and approved as required by law. (People v. Wisch, 345 Ill. App. 609.)

The writ of quo warranto is not a writ of right but lies in the sound discretion of the court, which may consider all the circumstances and conditions, the motiyes of the petitioner in having the proceeding instituted, and whether the public interest will be served or damaged by the writ. (People v. Jones, 308 Ill. 246, 249.) If the facts shown by respondent in his answer to the rule are disputed or if new and doubtful questions of law are presented, leave should be granted to file the information. If, however, the facts are not disputed and if the questions of law may receive as full and careful consideration upon the application for leave to file as upon a final hearing, leave to file should not be granted. (People v. France, 314 Ill. 51, 54.)

In view of the conclusion indicated there is no necessity to refer to the other matters set forth in appellee’s answer which, in some particulars, the evidence produced upon the hearing tended to substantiate.

The trial court was justified in holding that appellant did not show a clear right to the office of Chief of Police and properly denied leave to file the information. The order appealed from is affirmed.

Judgment affirmed.

CROW and EOVALDI, JJ., concur.


author: JUSTICE CROW

text:
    Robert L. Westlund, Appellee, v. Kewanee Public Service Co., a Corporation (Illinois Power Company, an Illinois Corporation, Appellant).
    Gen. No. 10,905.
    Second District.
    July 17, 1956.
    Released for publication August 6, 1956.

      Welch. & Welch, of Kewanee, for appellant.
    Gregg A. Yonng, of Kewanee, for appellee.
   JUSTICE CROW

delivered the opinion of the court. The defendant, Illinois Power Company, successor to Kewanee Public Service Company, appeals from the verdict and judgment of $7,000 in favor of the plaintiff, Robert L. Westlund, in this action for personal injuries suffered in Kewanee. It is claimed by the defendant that (1) the plaintiff was on the day of the injury, October 6, 1947, an employee of the defendant and not an independent contractor, and by reason thereof and the provisions of the Workmen’s Compensation Act (Ch. 48, Ill. Rev. Stats., 1947, Par. 143), his common law right of action against the defendant employer had been abolished, and, hence, the court should have allowed and not denied its motion, based on that point, to direct a verdict of not guilty at the close of all the evidence; and (2) the trial court erred in the giving and refusal of certain instructions. The defendant’s motion for judgment notwithstanding the verdict, based also on the same point as its motion for a directed verdict, and its motion for a new trial, which raises, among other things, the questions as to the instructions, were also denied. A special interrogatory was submitted by the defendant and given to the jury, asking: “Do you find from the preponderance of the evidence that the plaintiff, Robert Westlund, was an employee of the Kewanee Public Service Company at the time of the-occurrence in question?” The answer of the jury was: “No.” The defendant did not object in the trial court to the finding on that special interrogatory either in its motion for judgment notwithstanding the verdict, or its motion for new trial, or by motion to set aside the special finding, or otherwise. The special finding was consistent with and supported the general verdict.

The amended complaint, as amended, so far as material, alleged that the defendant was a public utility, engaged in constructing a gas main under ground on October 6, 1947; prior to that date the defendant, by its agent, entered into an oral contract with the plaintiff by which he was to weld the joints in the pipe line; the plaintiff was to furnish all the welding equipment and do the welding work, and the defendant was to pay an overall charge of $5.50 an hour for the services of plaintiff and his equipment; while the plaintiff was in the ditch, welding, the supports holding the pipe already welded gave way when the welded sections of pipe were being lowered into the ditch; and the falling-pipe hit the plaintiff on the head, injuring him. The negligence charged was that the defendant’s servants selected improper wooden timbers for supports, there was an insufficient number of supports, and the defendant’s servants were negligent in lowering the welded sections into the ditch. The defendant’s answer and additional defense, so far as presently material, denied some of the alleged features of the oral contract, denied negligence, alleged the plaintiff was an employee of the defendant and his cause of action was abolished, and alleged the plaintiff assumed the risk involved. Other pleadings of the parties need not now be noted.

There is little dispute as to the facts. The plaintiff was on, and for some time before October 6, 1947, had been a welder by trade, had a welding shop at his home, and had a portable welding machine, which could be pulled by a jeep, so as to permit welding work at the scene of a job, as well as at his home. The plaintiff did general job welding, structural welding, ornamental iron work, and farm repair welding, serving the general public as they came to him. Several weeks prior to October 6,1947, Arthur Jenkins, the gas superintendent of the defendant, came to the plaintiff’s shop, told him the defendant was going to build a gas pipe line in a certain area of Kewanee, and would like him to do the welding. The plaintiff agreed. About a week before October 6, 1947, Jenkins called the plaintiff again to be sure he was going to do the work. There was no mention in their conversations as to what the plaintiff would be paid. The plaintiff expected to charge the customary rate for work of that nature, according to what materials and labor were required, and, with average material, $5.48 per hour was the rate. Jenkins was familiar with his methods of charging, and Jenkins testified they had no price agreement as to his rate of pay. Jenkins told him the job would last six or eight weeks. This job would terminate upon completion of the pipe line. This was the plaintiff’s first job at welding a gas pipe line for the defendant, but he had previously done other small welding jobs for the defendant. On those other jobs he had sent a statement at thé end of the month for the work done, and no deduction had been made from his compensation for social security or income withholding taxes.

On the day the plaintiff was injured he was near the corner of Dwight and Church Streets in Kewanee, pulling his portable welding machine with his jeep. He had helmet, gloves, electrodes, cables, work clothes, and gas and oil to run his machine, — equipment of the trade, — all of which were owned by the plaintiff, and none of which were owned or supplied by the defendant. The welding job was skilled work and required special tools, which the plaintiff supplied. Jenkins, the gas superintendent, with four other employees of the company, and a ditch digging machine, with an operator thereof, were also there. The plaintiff employed none of those men. They all were employees of the defendant. After the ditch was dug some four feet deep and twenty inches wide for a certain distance, 2x4 wooden timbers were placed by defendant’s employees across it and then 4 inch steel pipes in approximately 20 foot sections were rolled onto the timbers to be welded together and afterwards to be lowered into the ditch. Two and sometimes three timbers were used to hold each section. The plaintiff then got into the ditch with the necessary parts of his welding equipment, and proceeded to weld the various sections of pipe together. The defendant’s employees placed the pipe in position preparatory to the welding; that act of the defendant’s employees was necessary for the plaintiff to proceed with his welding work; and he assisted them in lining up the pipe. The defendant’s employees (with occasional help of the plaintiff) clamped the several sections of pipe together, and then the plaintiff welded them.

It was his job to direct the welding. Jenkins inspected the welding, watched it very closely to start out with, and determined that it was satisfactory, and at one time, in the forenoon, Jenkins had suggested or asked the plaintiff to make a little heavier welds, which he did. The plaintiff had had no conversation with Jenkins with reference to welding the underside of the pipe, which was the particular operation he was performing when injured, but in order to weld the underside he had to get down into the ditch. It was impracticable to roll the pipe in order to weld the underside. The selection of the method of getting the weld on the bottom of the pipe was determined by the plaintiff.

The plaintiff did not punch a time clock on this job, or report to a timekeeper; he was his own timekeeper. He started work when the defendant’s employees had the pipe lined up, and he would quit when he had finished the balance they had lined up, and had no more work for him to do. He had to keep the welding done so that that part of the job would not slow up the ditch digging machine, because that machine was operating ahead of the plaintiff’s welding work, but he could take care of other business and was free to come and go as he pleased as long as it did not hold up the pipe line job. Mr. Jenkins was the boss of the whole project. He set the general hours of work. 1

The defendant’s employees and Jenkins, the superintendent, at the particular time in question were in the act of letting down by ropes some pipe lengths that had been welded, and pulling out the supporting 2 x 4’s, at the northerly end of the ditch, about 400 feet north of where the plaintiff was welding, when they dropped a pipe length, the force and weight of which and of the other connected sections snapped the supporting timbers to the south, resulting in a length of pipe which the plaintiff was welding on at the time, at a point some 400 feet southwardly in the ditch, hitting him on the side of the head, causing a fracture.

After he sustained his injuries, the plaintiff billed the defendant for services, as far as he had gone, at the rate of $5.48 per hour for 7 hours, $38.36, the statement reading that it was from “Bob’s Welding Service,” and he was paid, and apparently no deductions were made from his compensation for social security or income withholding taxes. The plaintiff had planned to bill the defendant for his services at the completion of the job, rather than to be paid each day or week.

A party is conclusively bound by a special finding of fact by a jury in answer to a special interrogatory submitted by him, unless specific objection thereto is made in or the question is raised in the trial court in the party’s motion for new trial or motion to set aside the special finding of fact; the question is not preserved by the party’s motion to direct a verdict, or by a general objection in Ms motion for new trial that the verdict is contrary to the manifest weight of the evidence; a special finding in and of itself, if properly objected to, is no more binding upon the party than is the general verdict, and he is entitled to question the correctness of the special finding upon a motion for new trial or motion to set aside the special finding, but the objection to a special finding in order to be effective must be specific, and a general objection in a motion for new trial that the verdict is contrary to the manifest weight of the evidence is not sufficient for that purpose: Brimie v. Belden Mfg. Co. (1919) 287 Ill. 11; Brant v. Chicago and Alton R. R. Co. (1920) 294 Ill. 606; Taake v. Eichhorst (1931) 344 Ill. 508; Rubottom v. Crane Co. (1939) 302 Ill. App. 58; Weinrob v. Heintz (1952) 346 Ill. App. 30. Other cases to the same effect are: Voigt v. Anglo-American Provision Co. (1903) 202 Ill. 462; Hartley v. Red Ball Transit Co. (1931) 344 Ill. 534; Avery v. Moore (1890) 133 Ill. 74; Empire Laundry Mach. Co. v. Brady (1896) 164 Ill. 58; Pennsylvania Coal Co. v. Kelly (1895) 156 Ill. 9. Ch. 110, Ill. Rev. Stats., 1953, par. 192, being section 68 of the Civil Practice Act in effect when this case was tried, provided in part:

“. . . and if either party may wish to move for a new trial or in arrest of judgment, or for a judgment notwithstanding the verdict, he shall . . . file the points in writing, particularly specifying the grounds of such motion, . . .”

The defendant made no specific objection in the trial court to the special finding of fact by the jury, in answer to the defendant’s special interrogatory, that the plaintiff was not an employee of the defendant; it raised no question as to such in its motion for new trial; it made no motion to set aside the special finding of fact; its general motions to direct a verdict did not preserve the question; the general objection in its motion for new trial that the verdict is contrary to the manifest weight of the evidence did not preserve the question; its motion for judgment notwithstanding the verdict does not at all refer to the special finding of fact; and its points in writing filed as its motion for new trial or for judgment notwithstanding the verdict do not particularly specify such special finding of fact and any objection thereto as a grounds of such motions. Accordingly, the defendant is conclusively bound by the special finding of fact by the jury on the special interrogatory that the plaintiff was not an employee of the defendant. That finding being unquestioned and it being substantially decisive of the essential facts upon which liability depends so far as this appeal is concerned, there could be no error in denying the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

But even if the defendant were not conclusively bound, under the circumstances, by the special finding of fact on the special interrogatory, we believe this case was properly submitted to the jury to determine whether the plaintiff was an employee of the defendant or an independent contractor. Although the facts and circumstances as to the relationship are virtually undisputed, they are not necessarily susceptible of a single reasonable inference, and, therefore, that question was not one only of law for the Court, but was a fact question for the jury, under proper instructions, and their verdict and answer to the special interrogatory indicates they have found he was not an employee, but was an independent contractor. There is substantial competent evidence to support that finding, — it is not an unreasonable inference from the evidence,— and it is not contrary to the manifest weight of the evidence.

It is impossible or impracticable to lay down a hard and fast general rule by which the status of raen working and contracting together can definitely be defined in all cases as employees or independent contractors; each case must depend on its own particular facts and circumstances; no one feature of the relationship is • determinative, but all must be considered and construed together; the right to control the details, manner, and method by which the work is to be done is probably the principal consideration; if the person for whom the work is done retains such right to control the details, manner, and method, the relation of employer-employee ordinarily exists; an independent contractor is one who renders service in the course of an occupation, who undertakes to produce a given result or to do a specific piece of work or job for another party, but is not subject to the orders or control of the latter in respect to the details of the work, the details or methods being left to his discretion, and he representing the will of the person for whom the work is done only as to the results and not as to the means by which the job is accomplished; the manner of payment, whether by the piece, job, day, or hour, the right to discharge, the skill required, the furnishing of materials, equipment, and tools, are all of some significance, but no one circumstance is necessarily controlling; whether the party performing the service is engaged in a business apart from the regular business of the person for whom the work is done, and whether the work done is a part of the regular business of the person for whom it is done or is only incidental to his main business, are also factors; if the facts are undisputed, and the problem concerns the legal status to be inferred from them, and the facts permit more than one reasonable inference, there is a question of fact and the trier of the facts may draw the inference, and its decision as to the preponderance or greater weight of the evidence will ordinarily not be disturbed on review; only when the undisputed facts are susceptibie of but a single reasonable inference does the issue become one only of law.

Those principles are established by the following cases, among the many that might be referred to: Henn v. Industrial Commission (1954) 3 Ill.2d 325 (carpenter engaged to repair garage door, obtain the materials, furnish his own tools and equipment, under no specific pay agreement, but he charging for other similar work so much an hour, the relationship to terminate at the conclusion of the particular job, is an independent contractor); Nelson Bros. and Co. v. Industrial Commission (1928) 330 Ill. 27 (owner of carpenter and jobbing shop engaged to saw lumber into pieces of a specified size, at his shop, with his tools, at an hourly rate for labor and use of his machine was an independent contractor); Besse v. Industrial Commission (1929) 336 Ill. 283 (plasterer engaged to repair a cistern and point a chimney, employing his own assistant, furnishing materials, using his own, tools, the owner exercising no control over methods, was an independent contractor); Meredosia Levee & Drain. Dist. v. Industrial Commission (1918) 285 Ill. 68 (operator of dredging machine engaged to remove sand and dirt from drainage ditch for drainage district at so much per hour per ten hour day was an independent contractor, even though a district commissioner watched and inspected the work, told operator where to begin and end, how deep to dig, and where to deposit the sand and dirt, and could discharge the operator, but gave no directions as to how work should be done); Ferguson and Lange Foundry Co. v. Industrial Commission (1931) 346 Ill. 632 (party hauling dirt and cinders away from foundry premises, using his own horses and wagon, no particular hours being prescribed, he being free to haul for others, was an independent contractor, and that occasionally the foundry asked him to remove such from a particular place before removing sncb from another place is inconsequential and did not constitute control over methods); Postal Tel. Sales Corp. v. Industrial Commission (1941) 377 Ill. 523 (salesman on a commission basis, working independently, hiring or firing sub-agents, with no directions as to how or to whom to sell, paying his own expenses, is an independent contractor) ; Olympic Commissary Co. v. Industrial Commission (1939) 371 Ill. 164 (a commissary company furnishing board and lodging to railway company employees is an independent contractor, though railway furnished cars, determined location of camp, furnished water, ice, fuel, and janitor service, and transportation, and could terminate contract upon notice,— the right of the railway to terminate the contract is not control over the methods by which the commissary company did its job); Ryan v. Associates Inv. Co. (1938) 297 Ill. App. 544 (garage operator who towed ears repossessed by finance company to temporary storage, who had independent garage business, towing for others, and doing general repair work, is an independent contractor). See also, in principle: Henry v. Industrial Commission (1952) 412 Ill. 279; Lawrence v. Industrial Commission (1945) 391 Ill. 80.

In the foregoing, we have referred to most of the cases cited by the defendant and of those only Henry v. Industrial Commission, supra, and Lawrence v. Industrial Commission, supra, held that the party doing the work was an employee rather than an independent contractor, — the first involving a carpenter, and the second, a plasterer. We need not here review in detail the facts of each case except to say they are materially different from those in the case at bar. The principles therein stated are as we’ve referred to above and those cases simply involved varying applications thereof. Of the defendant’s remaining cases, Immaculate Conception Church v. Industrial Commission (1947) 395 Ill. 615, held that a master plumber was, under the facts, an independent contractor; Sinclair Refining Co. v. Industrial Commission (1925) 317 Ill. 541 held that under the facts there involved a plumber was an employee, not an independent contractor; Central Illinois Light Co. v. Industrial Commission (1935) 359 Ill. 430 concerned a housemover, who was moving a boiler, and he was held to be an employee, though the point is but very briefly discussed; and Van Watermeullen v. Industrial Commission (1931) 343 Ill. 73 had to do with a trucker who was hauling loads from a railroad to a concrete mixer on a road construction job. None of those are at variance with our views here in principle and none are decisive of the present case.

There is here ample evidence from which the jury could draw the reasonable inference that the plaintiff was not an employee of the defendant, but was an independent contractor. Among such indicia of which there was evidence are: he was engaged in an independent welding occupation or business, serving the general public, quite apart from the regular utility business of the defendant. The welding work was not a part of the regular utility business of the defendant (although, of course, the whole pipe line was), but was only incidental thereto. The defendant did not generally control the details, manner, and method by which the welding work was to be done, and, particularly, the selection of the method of getting the weld on the bottom of the pipe (which the plaintiff was doing when injured) was determined by the plaintiff, not the defendant. He undertook to produce a given result, namely, weld the pipe, representing the will of the defendant only as to results and not as to the means by which the job was to be accomplished. The defendant’s superintendent, though necessarily concerned with the whole project, including the results of the plaintiff’s welding, evidently devoted his greater attention to the placing of the pipe in position preparatory to the welding and to the lowering of the pipe into the ditch after it was welded, rather than to the welding as snch, and at the time the plaintiff was injured the superintendent was. about 400 feet away, up the line to the north, assisting in lowering the welded pipe into the ditch and the plaintiff was engaged by himself in welding the underside of the pipe by. the method determined by him, without direction or control by the superintendent at all as to the details, methods, or manner thereof. His work required special skill and special tools. He furnished the materials, equipment, and tools to do the job. There was no specific agreement as to pay, his actual pay was on an hourly basis customary in the trade for such work when done for others, no deductions were made for social security or income withholding taxes as ordinarily would have been required as; to an employee as such, he rendered a statement for his compensation, and the prior history of his pay procedures with the defendant on other jobs is indicative of an independent contractor relationship more than an employee relationship. The relationship would terminate at the conclusion of the job. He did not punch a time clock. He was free to come and go and care for other business as long as it did not hold up the pipe line project.

That there is some evidence from which possibly a different inference might have been drawn is not significant as long as there is a reasonable basis in substantial competent evidence to support the inference which was drawn. The facts that the defendant inspected the welding and once suggested or asked him to make a little heavier welds, which he did, do not necessarily establish a general control by the defendant of the details, manner, and method of the welding, —though such were proper facts to be argued by the defendant to the jury. They are equally or more susceptible of interpretation as merely a normal concern by the defendant with the result of the job, the result of which, of course, had to meet with its approval, and a normal, business-like degree of cooperation and coordination between the plaintiff and defendant in accomplishing a job in which they both had a necessary part. That his contract was for no definite period and that he could be discharged any time by the defendant, if true; is of no particular significance and does not demonstrate control by the defendant of the details, manner, and method of the welding. That his pay was on an hourly basis was a proper factor, with other factors, for the defendant to argue to the jury, but is not decisive, and is consistent with either relationship.

The pleadings indicate that there was a prior proceeding before the Industrial Commission by the plaintiff against the defendant for workmen’s compensation growing out of the same incident; the Commission found that the relationship of employer and employee did not exist, and that the plaintiff was, therefore, not entitled to workmen’s compensation; on writ of certiorari to this same circuit court that court affirmed the Industrial Commission, and found that the relationship of employer and employee did not exist; and the Supreme Court denied the defendant’s petition for a writ of error. Though the plaintiff does not specifically urge that that finding in that proceeding is conclusive in this tort suit, and we have not considered that possible question, that determination by the Commission, the circuit court, and the Supreme Court, is, at least, persuasive.

There was, accordingly, no error in denying the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

The defendant as a part of its answer filed an additional defense, setting out, among other things, that the defendant had paid the plaintiff for the injuries received the sum of $525.90, being for medical, nursing and hospital services, and for workmen’s compensation for a period of partial disability, which sum, it was alleged, should be credited to the defendant as full settlement of all damages, or in mitigation or reduction of damages which the defendant may or might he liable for, if any.

One of the plaintiff’s instructions, No. 12, of a part of which the defendant complains, is a customary instruction as to tort damages, and the part objected to, being the concluding clause thereof, read: “. . . but the defendant shall be given credit in the consideration of the question of damages for the sum of $525.90 heretofore paid by the defendant to the plaintiff for medical, nursing, and hospital services, and otherwise.” (Emphasis added.) There was evidence, in addition to the defendant’s answer, of the payment of $345.50 of that $525.90 by the defendant to the plaintiff for the medical, nursing, and hospital services, the defendant making no objection to that evidence, though there was no evidence of the $180.40 balance of the $525.90 for so-called workmen’s compensation.

The defendant says the fact that it had paid such sums should never have been divulged to the jury because such fact had no hearing on the question of liability, and was prejudicial. It also says the phraseology therein “medical, nursing, and hospital services, and otherwise” leaves an unexplained gap as to what a part of the $525.90 was for, inasmuch as only $345.50 was for medical, nursing, and hospital services.

If the jury found the defendant liable for this alleged tort, the defendant was entitled to credit in mitigation against any damages otherwise due for the amount of its prior payment, the plaintiff was not entitled to a double recovery to the extent of that payment, and that is the reason for the instruction. According to the defendant, the allegations as to that payment of $525.90 were inserted in its answer in order to guarantee that the defendant would get credit for such on any judgment that may have been entered herein. Where a plaintiff receives a payment from one against whom tort liability could lie, such payment may be deducted from the damages recoverable; evidence of such payment may be submitted, and an instruction may be given informing the jury of their right to consider such payment in determining damages, if they find for the plaintiff. Though the following cases involved covenants not to sue as against and payments to the plaintiff by one of multiple tort feasors, and hence are not exactly the present case, they may be referred to generally, and, in principle, are applicable: Aldridge v. Morris (1949) 337 Ill. App. 369; New York, C. & St. L. R. Co. v. American Transit Lines (1951) 408 Ill. 336; Hyde v. Montgomery Ward & Co. (1951) 343 Ill. App. 388. Also, cf. Burns v. Stouffer (1951) 344 Ill. App. 105; Stoewsand v. Checker Taxi Co. (1947) 331 Ill. App. 192; Curtis v. City of Chicago (1949) 339 Ill. App. 61. An instruction may, of course, be given as to a material admission in an answer: Bellomy v. Bruce (1939) 303 Ill. App. 349. The plaintiff not being, in legal contemplation, an employee of the defendant, the payment which the defendant so made was necessarily, in legal contemplation, not made pursuant to any contract obligation or in settlement of any workmen’s compensation liability, but was voluntary in character and in a case in which the defendant’s liability, in legal contemplation, is predicated in tort.

The fact of the payment being admitted, having been brought into the case in the first instance by the defendant’s own pleading, and there being no controversy as to the fact, no evidence thereof was necessary. If the purpose of such allegation in the defendant’s pleading was to guarantee it would get credit therefor on any judgment that might be entered herein, — and, indeed, we can perceive no other reason for the allegation, — then the objected to portion of the plaintiff’s instruction No. 12 literally accomplishes exactly that purpose.

Such payment had no bearing on the question of liability ; there is no contention by the plaintiff that it did have; the plaintiff’s instruction No. 12 is not an instruction hearing on liability, but only on damages in the event the. defendant was otherwise found liable; the opening sentence thereof was: “You are instructed that if you find for the plaintiff you will be required to determine the amount of the plaintiff’s damages”— (Emphasis added); neither that or any other instruction attempted to inform the jury that such payment had any bearing on the.issue of liability; and there is nothing to indicate the jury were confused or misled thereby or obtained an, .erroneous impression that such bore on liability. In fact, the defendant’s own given instruction No. 25 makes that very clear. That instruction read:

“If you find from the greater weight of the evidence, and under the instructions of the Court, that the plaintiff is entitled to recover, then you may consider the question of damages, if any. If you find from the evidence, and under the instructions of the Court, that the plaintiff is not entitled to recover, then you must not consider the question of damages. The fact that the Court gives any instructions on the question of damages, or that counsel has discussed such subject, is not to be taken by you as any intimation by the Court, or any admission by counsel for the defendant, that the defendant is liable.”

But if the objected to part of the plaintiff’s instruction No. 12 had led to some possible confusion or misunderstanding by the jury, or if it were somewhat prejudicial to the defendant that the jury knew it had paid a sum to the plaintiff, then the defendant itself having in the first place made the somewhat ambiguous payment, voluntarily, and having injected and brought that matter into the case in the first instance by its pleading (perhaps unnecessarily), must bear its share of responsibility for any possible confusion, misunderstanding, ambiguity, and prejudice which that element and the instruction relating thereto possibly may have caused. The defendant did not submit but could readily have submitted, if it had wished, an instruction referring to the whole subject in more detail and more carefully spelling out, if such was felt necessary (although we think instruction No. 12, as it is, was reasonably clear, when read in its entirety and with the other instructions), that such payment had no bearing on the question of liability, but was to be considered by the jury, if at all, only on the question of damages if the jury found the defendant liable. Not having seen fit to do so, and having itself initiated the payment and injected the matter into the case, and having made no objection to the introduction of evidence as to the bulk thereof, the defendant is in no position to complain. The use of the phrase “otherwise” therein is somewhat vague and leaves something to be desired, but absolute perfection in instructions is not required and we do not regard it alone as prejudicial.

There was, hence, no reversible error in the objected to portion of plaintiff’s instruction No. 12 under the conditions presented here.

Nor was there error in not giving the. defendant’s offered instruction No. 28. That offered instruction read:

“If you find from the evidence, and under the instructions of the Court, that both the plaintiff and. the defendant were guilty of negligence, then you must not compare the negligence of the plaintiff with that of the defendant, for in such case the law is, that it makes no difference which was guilty of the greater negligence.”

The court gave defendant’s instruction No. 23, which read: ,

“It was the duty of the plaintiff to use reasonable care to avoid injury to himself. If you find from the evidence, and under the instructions of the Court, that the plaintiff failed to use such care just before and at the time of the occurrence in question, and if you also find that such failure, if any, proximately contributed to cause such occurrence, then the plaintiff was guilty of contributory negligence and cannot recover from the defendant, whether or not the defendant was guilty of negligence.”

The defendant’s given instruction No. 23 adequately and fairly covers the subject of contributory negligence as to the plaintiff. It does not literally, in so many words, inform the jury that if they found both the plaintiff and the defendant guilty of negligence proximately contributing to the injury or damage complained of there could be no recovery, — as the defendant infers would have been done by its offered instruction No. 28, — but the language therein “then the plaintiff was guilty of contributory negligence and cannot recover from the defendant, whether or not the defendant was guilty of negligence,” in substance, does exactly that and is perfectly clear. Furthermore, the defendant’s offered instruction No. 28, it will be observed, does not include after the phrase “guilty of negligence” the customary further phraseology “which proximately contributed to the injury or damage complained of,” — or that in substance, — and hence it is not accurate in and of itself: Hemphill, Ill. Jury Instructions, Vol. 2, P. 118-119. Though it might be a proper “companion” instruction to be given with given defendant’s instruction No. 23, and if so given might not necessarily be reversible error, considering all the instructions as a series, we do not perceive that it is at all necessary when instruction No. 23 is given. Mowat v. Sandel (1931) 262 Ill. App. 395, the only case cited by the defendant on this point, held it was reversible error to refuse a defendant’s offered instruction somewhat similar to the present defendant’s refused instruction No. 28, but which had in it after the phrase “guilty of negligence” the further language “which proximately contributed to the injury or damage complained of,” and the case is not authority that it is reversible error to refuse the present defendant’s offered instruction No. 28 in its present form and under the circumstances presented here when defendant’s instruction No. 23 is given in its present form.

The judgment will, therefore, be affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.


author: JUSTICE EOYALDI

text:
    The People of the State of Illinois, Appellee, v. 123 Punch Boards, Etc., and Harry A. Cassiday, Defendants. Appeal of Harry A. Cassiday, Appellant.
    Gen. No. 10,977.
    Second District.
    July 20, 1956.
    Rehearing denied August 17, 1956.
    Released for publication August 17, 1956.

      Taylor E. Wilhelm, of Mendota, for appellant.
    Latham Castle, Attorney General, State of Illinois, of Springfield, for plaintiff-appellee; Calhoun W. J. Phelps, State’s Attorney, of Princeton, Fred G. Leach, and Edwin A. Strugala, Assistant Attorneys General, both of Springfield, and Donald E. Blodgett, Assistant State’s Attorney, of Princeton, of counsel.
   JUSTICE EOYALDI

delivered the opinion of the court.

This case comes to us for decision by transfer from the Supreme Court. The State’s Attorney of Bureau County filed a petition in the county court to have certain property declared contraband and to have it destroyed or confiscated. The property consisted of 123 punch boards, two Western Union teletype machines, two pinball machines, $682 and $2,706.99 of United States currency, and $398.89 of negotiable checks or bank drafts. After a hearing, the court ordered part of the property destroyed and the balance confiscated.

The appeal was taken directly to the Supreme Court, presumably on the theory that a constitutional question was involved. Appellant’s “Points and Authorities” and “Argument” were confined to the single issue: namely, whether the county court had jurisdiction of the subject matter, relying on the statute which limits the jurisdiction of county courts to cases where the amount claimed or the value of the property in controversy does not exceed $2,000 (chap. 37, par. 177, Ill. Rev. Stat. 1953). The Supreme Court held that the appeal presented a problem of statutory construction only, and that no constitutional question was involved; and that since this was the sole argument advanced in appellant’s original brief, and since new points raised for the first time by reply brief would not be considered, all other allegations of error were deemed waived under Supreme Court Rule 39, Ill. Rev. Stat. 1955, chap. 110, par. 101.39. 8 Ill.2d 520, 134 N.E.2d 763. Rule 7 of the Rules of Practice of the Appellate Courts of Illinois, in effect at the time the case was appealed to the Supreme Court, contained substantially the same provisions as said Supreme Court Rule 39.

The General Assembly may by general law confer such jurisdiction upon county courts as it deems advisable, and has seen fit to confer upon county courts jurisdiction to determine the contraband nature of articles lawfully seized and to order their destruction or other disposition. Section 18 of Article YI of the Constitution of Illinois provides:

“There shall be elected in and for each county, one county judge and one clerk of the county court, whose terms of office shall be four years. . . . County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may he provided for hy general law.” (Emphasis supplied.)

Section 2 of “An Act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes,” approved June 21,1895 (chap. 38, par. 342, Ill. Rev. Stat. 1953), provides:

“Every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device and shall be subject to seizure, confiscation and destruction by any municipal or other local authority withm whose jurisdiction the same may be found. . . .” (Emphasis supplied.)

The Supreme Court has held that an enforcement of this section may be had under the general provisions of division VIII of the Criminal Code (chap. 38, pars. 691-699, Ill. Rev. Stat. 1953), which provide for the search, seizure, destruction or other disposition of contraband and other illegally possessed articles. Frost v. People, 193 Ill. 635, 640.

Section 7 of division VIII of the Code (chap. 38, par. 697, Ill. Rev. Stat. 1953) in part provides:

“When an officer in the execution of a search warrant, finds stolen or embezzled property, or seizes any of the other things for which a search is allowed by this act, all the property and things so seized shall be safely kept by direction of the judge, justice or court, so long as necessary for the purpose of being produced or used as evidence on any trial. As soon as may be afterwards, all such stolen and embezzled property shall be restored to the owner thereof, and all other things, firearms excepted, seized by virtue of such warrants shall be confiscated and burnt or otherwise destroyed, under the direction of the judge, justice or court. . . .” (Emphasis supplied.)

By analogy, it is noteworthy that the General Assembly in Section 185 of division I of the Criminal Code (chap. 38, par. 411, Ill. Rev. Stat. 1953) has provided: “All sums of money and every other valuable thing drawn as a prize, or as a share of a prize, in any lottery, and all property disposed of, or offered to be disposed of, by any chance or device, nnder the pretext mentioned in section 180 hereof, . . . and all sums of money or other things of value received by any such person, by reason of his being the owner or holder of any ticket or share of a ticket in a lottery or pretended lottery, . . . shall be forfeited, and may be recovered by an information filed, or by appropriate civil action, brought by the Attorney General, or the State’s Attorney in the proper county, in the name and on behalf of the People of the State of Illinois.” (Emphasis supplied.)

In the cases of Hannigan v. Mossler, 44 Ill. App. 117, and Schumann Piano Co. v. Mark, 208 Ill. 282, in suits commenced before justices of the peace under the Forcible Entry and Detainer Act [Ill. Rev. Stats. 1955, ch. 57] the courts held that the jurisdiction of the justice of the peace was not affected by the amount involved, the gist of the action being the right to possession.

Similarly the gist of the instant action is not the value of the articles, goods or currency involved, but is their nature. The case of People v. Moore, 410 Ill. 241, involved an appeal by the State of Illinois from an order of the county court of Madison County granting the defendants’ motion (1) to suppress the use as evidence, in a pending criminal prosecution, of certain property seized in a raid by the State police on May 12, 1950, under a search warrant, and (2) ordering the restoration to the defendants of all the property seized, including money in the amount of $18,000. The Supreme Court, on page 248, said:

“The claim of the State that the property is contraband gives it the right to have that claim determined by this court, for otherwise it would be deprived of its right to confiscate and destroy the property, if the property, in fact, is actually contraband. This right was decided by the trial court adversely to the State’s claim in the second part of the order wherein the property was ordered returned to the rightful owners.”

The court further said, at page 251:

“The State contends that all of the property involved was gaming apparatus or implements used, or kept and provided to be used, in unlawful gaming in a place resorted to for the purpose of unlawful gaming and thereby subject to confiscation and destruction under the provisions of section 7 of division VIII of the Criminal Code. As previously stated, the trial court made no finding as to whether the articles seized were articles so used and thereby subject to search and seizure. Whether much of the property involved is subject to confiscation or not depends upon the nature of its use at the time of the seizure. Although the property in question cannot be used in evidence at the trial of the criminal information because of that part of the trial court’s order suppressing the search warrant, the return of the property to the defendants can be ordered only if it is not property subject to confiscation. The trial court having made no finding in reference to that question, we believe that as to the property taken the order of the trial court should be reversed and the cause remanded with directions to the county court to determine whether such property is subject to confiscation.” (Emphasis supplied.)

It is therefore apparent that under the general provisions of Ill. Rev. Stat. 1953, chap. 38, pars. 342, 691-699, conferring upon any judge or justice or court the power to determine the contraband nature of certain articles and to order their destruction or other disposition, the county court had jurisdiction in the instant case to order the destruction of the articles found to be gaming devices per se, and of the articles found to have been used as a functional and integral part of the gaming operations, and to further order the confiscation of monies seized in their operation. This conclusion is implicit in the decision of the Supreme Court in People v. Moore, supra. The order and judgment of the county court of Bureau County is correct.

Judgment affirmed.

DOVE, P. J. and CROW, J., concur.


author: JUSTICE BARDENS CULBERTSON, J.,

text:
    William Arthur Krantz, a Minor, by James Ivan Krantz, his Father and Next of Friend, Plaintiff-Appellee, v. Harry Nichols, and Anna Nichols, Executrix of the Estate of Harry Nichols, Deceased, Defendant-Appellant.
    Term No. 56-F-4.
    Fourth District.
    July 21, 1956.
    Released for publication August 7, 1956.

      Wham and Wham, of Centralia, and Miller and Pfaff, of Salem, for defendant-appellant.
    Raymond O. Horn, of Salem, for plaintiff-appellee.
   JUSTICE BARDENS

delivered the opinion of the court.

Defendant appeals from two judgments totaling $20,000 entered on jury verdicts in a case involving injury to a five-year-old boy while riding on a tractor being driven by defendant Harry Nichols. Judgments in favor of the boy for $15,000 and his father in the sum of $5,000 were entered by the lower court. Defendant’s post trial motions were overruled. These motions pertain principally to the question of the degree of negligence required to be proved by plaintiff under the circumstances presented in this case. Rulings on these motions and questions regarding instructions and alleged improper conduct in final argument are raised on this appeal. The defendant-driver, Harry Nichols, died before the case came to trial and his wife as executor of his estate was substituted as defendant, but the case proceeded under its original title.

The evidence as to the circumstances surrounding the status of the minor upon defendant’s premises and his injury may be summarized substantially as follows: The family of plaintiff lived on a farm across the road from the defendant’s farm. William, the five-year-old boy, had often been on defendant’s premises and was regarded with affection by defendant. On the morning of the day of the accident, October 19, 1953, the minor was brought over to Nichols’ home by his mother who was going to the store and who asked if the minor could stay until she returned. Mr. Nichols was going to the field to haul corn and the minor said that he was going with him. Both went to the field about one-quarter of a mile from the house where Mr. Nichols’ son was picking corn, the minor riding in the wagon pulled by defendant on a tractor. Mr. Nichols was picking up corn where he had shucked it off the end rows; the minor asked to hold the sack and did so for a little while, then told Mr. Nichols to let him pick up the corn because he was closer to the ground and Mr. Nichols would not have to bend over. They picked up about 12 sacks of corn that morning, then returned to the house, the boy riding in the wagon. When the minor’s mother came for him Mr. Nichols told the boy to tell his mother that he was going to stay for dinner; that he had earned his dinner. This arrangement was satisfactory to the mother and the boy did stay for dinner. After dinner Mr. Nichols sat down to rest and the boy went home. In a little while Mr. Nichols went ont to the barn to start unloading the wagon when the boy came back again and stated he was going out to the field with Mr. Nichols. They went to the field, the minor again riding in the wagon, and picked up about two sacks of corn. When Mr. Nichols determined that it would not be necessary for him to stay in the-field any longer because his son would finish up the picking, he left the wagon in the field and started home on the tractor. The boy wanted to drive the tractor, but Nichols would not let him. Since it was hot, he told him to get up behind and stand on the tow bar and hold the seat and ride in. The tractor was a small Farmall Allis Chalmers without fenders. The tow bar was a flat iron bar used to hook on farm implements which extended out from the back of the tractor in a semi-circle between the wheels. As they approached the barn at about five miles per hour defendant heard the boy scream and stopped the tractor. He found that the boy’s foot had been caught and torn between the brake drum and the tire. As a result of the injury the leg was subsequently amputated six inches below the knee.

A review of the pleadings is necessary to a full understanding of the questions involved. The complaint was in two counts, Count I of which was on behalf of the minor and Count II on behalf of his father. Both counts alleged that defendant owned a farm tractor on which gears and other moving parts were exposed; that defendant, with knowledge of the danger, negligently and carelessly invited the minor plaintiff to ride on the tractor; that the defendant in so doing subjected the minor to extraordinary danger; that the defendant was negligent in the operation of the tractor as well as negligent in putting the minor in a place of extraordinary danger. Defendant filed motions to dismiss or make the complaint more specific on the grounds that the complaint failed to show that the minor was a business invitee, but did show that the minor was a guest under Section 58-A of the Chapter 95% [Ill. Rev. Stats. 1955] on Motor Vehicles and, therefore, the complaint must allege wilful and wanton misconduct. This motion was overruled and defendant filed an answer denying the material allegations. The answer also set up two additional defenses (1) alleging that the minor was a guest under the Motor Vehicle Act and (2) a social guest on the defendant’s premises and that the sole duty of the defendant was not to wilfully or wantonly injure said minor. On motion, the court struck the defense under the Guest Act, but upheld the defense based upon plaintiff’s alleged status as a licensee. This latter defense was answered by the plaintiff with denials.

In our view the controlling issue in this case lies in the consideration of the defendant’s additional defense alleging that plaintiff was a licensee on defendant’s premises. We find that the law is well settled that a social guest is treated as a licensee and not an invitee and therefore must prove wilful and wanton misconduct in order to recover against the possessor of the land. Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343, 347, 97 N.E.2d 290; Biggs v. Bear, 320 Ill. App. 597, 51 N.E.2d 799. See also Dent v. Great Atlantic & Pacific Tea Company, 4 Ill.App.2d 500, 124 N.E.2d 360. We have carefully examined the evidence on this issue and feel that it manifestly established the minor’s status as a social guest. It is true the boy assisted in picking up corn and was said by defendant to have “earned his dinner.” But his being with defendant during the day was essentially for his own entertainment, and the work performed was as a volunteer and resulted in no real benefit to defendant. Therefore, under the evidence presented in this case, we conclude that plaintiff’s status in the legal sense remained that of a licensee rather than an invitee and he was required to allege and prove wilful and wanton misconduct on defendant’s part. We have held that, in the absence of a showing of an attractive nuisance, the rule is applicable to children. Jones v. Schmidt, 349 Ill. App. 336, 110 N.E.2d 688.

It is true that instructions given on behalf of the defendant incorporated in them the proposition that plaintiff was required to prove wilful and wanton misconduct if the jury found that the minor plaintiff was a social guest or licensee. However, the instructions on behalf of the plaintiff did not incorporate this element. Plaintiff’s instruction number 9, in particular, was a mandatory instruction which completely omitted the question of the status of the minor and required only the want of due and ordinary care on the part of the defendant, Harry Nichols. In view of our conclusion on the minor’s status, this instruction was erroneous and, being mandatory, could not be cured by other instructions. Hanson v. Trust Co. of Chicago, 380 Ill. 194, 43 N.E.2d 931. This instruction alone requires a reversal and remandment of the cause.

The application of the Guest Statute in the instant case is therefore immaterial since our conclusion as to the minor’s status raises the same standard of proof of defendant’s misconduct as that required under the Guest Statute.

Inasmuch as the cause is to be remanded, we feel that two matters raised by the briefs and arguments require some discussion for guidance upon retrial of the cause. The first pertains to the form of verdicts and judgment. As we previously stated, after the death of the original defendant Harry Nichols, his wife as executor was substituted and the court ordered the title of the cause to be continued in the name of Harry Nichols. Chapter 110, Ill. Rev. Stat., 1953, par. 178. However, in the framing of the instructions and the forms of verdict, the name of the real and substituted defendant should have been used rather than the name of the deceased defendant. The judgment also should have been against the substituted defendant because the form of the judgment against an estate is different than that against an individual.

The second matter pertains to final arguments. Plaintiff’s attorney stated upon final argument, “I want to make one final and unusual request, we have asked for $25,000.00 for William Krantz and $10,000.00 for Ivan Krantz. On my own motion and for reasons which I do not wish to disclose I am asking for only $15,000.00 for William Krantz and $5,000.00 for Ivan Krantz.” We do not know of any rule that prevents an attorney from asking for a specific amount based upon the evidence, but when the request is couched in language as shown above, it goes beyond the record and could mislead the jury.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.

SCHEINEMAN, P. J., concurs.

CULBERTSON, J.,

dissents.

I cannot agree with the majority opinion. Under the facts in this case this five-year-old infant was placed in a position of danger on a farm tractor with moving parts of the gears exposed. The relationship of the minor plaintiff and the defendant was obviously one for mutual benefit, and it is inconsistent, both with the facts and the law, to conclude that defendant was not required to exercise ordinary care and caution for the safety of the child (Armster v. American Steel Foundries, 313 Ill. App. 378).

In the case of Abbs v. Rob Roy Country Club, Inc., 337 Ill. App. 591, the Court, in a comparable case where a minor plaintiff was invited to ride on a platform on a tractor and was thrown off and struck by moving parts of the motors, concluded that it was defendant’s duty to exercise reasonable care for plaintiff’s safety since tbe jury could conclude that at-the time of the accident plaintiff was riding on defendant’s tractor at defendant’s invitation. In the case before us there was obviously a question of negligence which the jury could pass on, and a duty to the infant plaintiff other than simply one calling for freedom from wilful and wanton misconduct.

I do not believe that there was any reversible error in the record and that the judgment should have been affirmed.