text:
    Emmis Kooyumjian, and Louise Kolosick, Appellants, v. Wilbur C. Stevens, Jr., Appellee.
    Gen. No. 46,804.
    First District, Second Division.
    May 29, 1956.
    Rehearing denied June 19, 1956.
    Released for publication June 19, 1956.

      Louis M. Leider, of Chicago, for plaintiffs-appellants; Melvin B. Lewis, and James J. Doherty, both of Chicago, of counsel.
    Pretzel and Stouffer, of Chicago, for appellee.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Emmis Kooyumjian and Louise Kolosick filed a suit in the Superior Court of Cook county to recover damages for personal injuries to Kolosick and property damage on the part of Kooyumjian allegedly occasioned by the negligence of the defendant in operating his automobile. The case was tried before a jury. The verdict returned found the defendant guilty as to plaintiff Kolosick and awarded her $300 as damages and found the defendant not guilty as regards the plaintiff Kooyumjian. Judgment was entered on the verdict and from such judgment both plaintiffs take this appeal.

The plaintiffs contend here that the damages awarded plaintiff Kolosick are grossly inadequate; that plaintiff Kooyumjian is entitled to damages; that the trial court erred in its rulings on the admissibility of evidence and in instructing the jury; that by the rulings and remarks of the trial court the plaintiffs were deprived of a fair trial; and that the verdict is against the manifest weight of the evidence.

The vehicle in which Kolosick was a passenger was owned and operated by plaintiff Kooyumjian, who claims only property damage to his automobile. Plaintiff Kolosick claims damages for personal injuries received as a result of the collision. From the evidence introduced at the trial of the case it appears that about 2:15 p. m. on December 26, 1950 the automobile in which plaintiffs were riding was struck in the rear by the automobile owned and driven by the defendant at about 917 West Lawrence avenue in the City of Chicago. On the day in question the streets were covered with packed snow and were slippery. The plaintiff Kooyumjian, while driving east on Lawrence avenue, stopped because of an automobile double-parked ahead of him, and his automobile was struck from behind by defendant’s car.

Plaintiff Kolosick testified that she was thrown under the dashboard of the automobile in which she was riding and suffered great pain. She went with the defendant and coplaintiff to the Ravenswood Hospital where she was treated by a Dr. Ireland, who continued to treat her periodically. She testified that she had worked at two jobs from 1941 to the date of the collision; that she worked daily at Triangle Tool and Manufacturing Co. as a punch press operator from 8:00 a. m. until 4:30 p. m. and also worked daily at Croname, Inc. at the same occupation from 4:45 p. m. until 1:30 a. m.; that on account of her injuries she was compelled to absent herself from her work, resulting in a loss of earnings amounting to $2203.20; that she had paid $34.50 to the hospital and $61.80 for medical expense, and she was indebted to Dr. Ireland in the amount of $340 for his services. She also testified that she had suffered severe pain at the time of the accident and subsequently, and that the pain still persists; that she had worn day and night for eight months, under the prescription of her physician, a garment with steel stays and braces, and after the garment was removed the doctor prescribed a solid board for use in her bed under the mattress; that before the accident she attended movies but now is unable to sit through a movie; that before the accident she did her own housework and that since the accident she is incapacitated from performing her household duties to the same degree; that at the present time she works for the Triangle Tool and Manufacturing Co. but not for Croname, Inc.

Dr. Ireland, the attending physician, testified concerning his examination, treatment and diagnosis of plaintiff IColosick immediately after the accident. He stated that the reasonable costs and charges for the medical services rendered were $340; that the accident in question could have caused her condition subsequent to its occurrence and that such condition might be permanent.

The defendant testified that at the time of the collision he was twenty years old; that he was traveling east on Lawrence avenue at a slow rate of speed; that he saw the plaintiff’s vehicle ahead of trim come to a sudden stop in the middle of the block; that he immediately applied his brakes and skidded into the rear of plaintiff’s car; that he saw no hand signal or stop light flash before the collision. The plaintiff Kooyumjian testified that his stop lights were operating.

Before us the defendant urges a proposition which, if decided in his favor, would be decisive of the appeal. He contends that under the provisions of section 68 of the Civil Practice Act (Ill. Rev. Stat. ch. 110, par. 192), a party moving for a new trial must file his points in writing, particularly specifying the grounds for such motion; that the plaintiffs by their failure to do this waived all rights they might have had for a review in this court; and that in any case the plaintiffs would have no right under the motion as made to have anything reviewed except the decisions of the trial court made in the progress of the trial and that questions concerning the manifest weight of the evidence, the allegedly prejudicial remarks and rulings of the trial court and the inadequacy of the damages are not before us. We will consider this contention first.

The jury returned its verdict on March 18, 1955. On April 12,1955 the trial court entered an order nunc pro tunc as of March 18, 1955 “for the purpose of preserving for the record of this cause the events of that day.” The order recited that the jury having returned its verdict in this cause finding the defendant not guilty as to plaintiff Kooyumjian and finding the defendant guilty as to plaintiff Kolosick and assessing said plaintiff’s damages at $300, the plaintiffs duly and regularly moved for a new trial, arrest of judgment, and for judgment notwithstanding the verdict, which motions the court overruled and judgment was thereupon entered on the verdict.

This question has heretofore been passed on by the courts of this State. In Yarber v. Chicago & A. R. Co., 235 Ill. 589, the court, after a full discussion, lays down the rule concerning the review of matters arising in a cause both when no motion for new trial is made and when a motion for new trial is submitted without any points stated in writing. The Practice Act then controlling was substantially the same as the Civil Practice Act of 1933 in force at the time when the instant case was tried, and provided that either party moving for a new trial shall file the points in writing, particularly specifying the grounds of such motion. The court held that this section was directory and not mandatory, and that while the party moving for a new trial may be required by the court or the opposite party to file the points in writing specifying the grounds of his motion, however, “If this is not required and the motion is submitted without any statement in writing of the grounds therefor and without objection, the requirement of such statement is waived. If certain points in writing particularly specifying the grounds of a motion for a new trial have been filed, the party will be deemed to have waived all causes for a new trial not set forth in his written grounds and in the appellate court will be confined to the reasons specified. On the other hand, if the motion has been submitted without specifying, in writing, the grounds therefor, the party may avail himself of any cause for a new trial which may appear in the record, whether it be the admission or rejection of evidence, the giving or refusal of instructions, the lack of sufficient evidence or any error occurring on the trial. . . . [Citing cases].” The defendant has totally misapprehended this decision and cites as controlling our area of review a statement in the decision referring to the power of review by an Appellate Court where no motion for a new trial has been filed. People v. Cohen, 352 Ill. 380, reaches the same conclusion as was reached in the Yarber case, and holds that the rule laid down is applicable to both civil and criminal cases. The latest statement on this subject is People v. Flynn, 8 Ill.2d 116, where the court says:

“Prior to 1933 the rule, in both civil and criminal cases, required the moving party to file his points in writing, particularly specifying the grounds of his motion. However, if a verbal motion was made without objection, the party could avail himself of any cause for a new trial which might appear in the record. If the party filed a written motion specifying the grounds, then he would, of course, be confined on review to the reasons specified in the trial court, and would be held to have waived all causes for a new trial not set forth in writing. People v. Cohen, 352 Ill. 380; Anderson v. Karstens, 297 Ill. 76; Bromley v. People, 150 Ill. 297; Ottawa, Oswego & Fox River Valley Railroad Co. v. McMath, 91 Ill. 104.

“The 1933 amendment substantially restated the requirement of writing which had theretofore appeared in section 77 of the Practice Act of 1907, governing procedure in both criminal and civil cases. Nothing in its language purports to change the character or incidents of the requirement ... If the legislature desired to change the established consequences of a failure to comply, and intended that an oral motion without objection should constitute a waiver, on review, of all grounds for a new trial, it would have said so by specific provision. It would not have left such a change to be inferred from a mere absence of provisions to the contrary.”

The court holds that while it is better practice for attorneys to specify in writing the grounds relied on for a new trial, nevertheless the requirement may be waived. It is apparent that where no rule is made upon the moving party to file his points in writing the statutory requirement is waived and the party can avail himself of any cause for a new trial which might appear in the record. We find no merit in defendant’s contention.

By its verdict in favor of plaintiff Kolosick the jury found that the defendant was guilty of negligence. The verdict for the defendant and against plaintiff Kooyumjian must have been either because the jury believed that the plaintiff was guilty of contributory negligence or that he suffered no damage to his automobile as a result of the accident.

The plaintiffs argue that the jury was misled by instruction 20 given on behalf of the defendant, which is as follows:

“Contributory negligence is the failure by the plaintiff, Emmis A. Kooyumjian, to use reasonable care for his safety just before and at the time of the occurrence in question which failure proximately contributes, to cause the damage of which he complains.”

In their brief plaintiffs point out that nowhere in any of the other instructions was the term “contributory negligence” used, and that the instruction as given, without qualifying language, could be taken by the jury as meaning that the court was instructing them that plaintiff Kooyumjian was guilty of contributory negligence and that such negligence was a proximate cause of the accident. It is apparent from the wording of the instruction that the jury could be so misled. Nor was the instruction cured by the cautionary instructions given on behalf of the plaintiffs. Giving the instruction to the jury was reversible error.

Plaintiffs also urge that the court improperly admitted in evidence two photographs offered by the defendant. The photographs were enlargements of small photographs purportedly taken of the plaintiff’s car by defendant’s father. The photographs were marked as defendant’s exhibits 2 and 3 and were exhibited to plaintiff Kolosick by the defendant during her cross-examination. She stated that they were photographs of “the car I was riding in.” The pictures were also shown to Kooyumjian during his cross-examination and he stated that he did not know when the pictures were taken, but he asserted that it was after he had repaired his car and that the repairs required a week and a half of work. With no other testimony concerning the photographs in the record they were subsequently offered in evidence. The plaintiffs objected to their admission on the ground that a proper foundation had not been laid for their admission; that they were taken at a period several months after the accident and they did not represent the condition of the automobile at the time of the accident. The photographs were admitted in evidence.

The only conceivable purpose for which the photographs were put in evidence by the defendant was to minimize the force of the collision and the damage to plaintiff’s automobile. In order to have a photograph admitted in evidence it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts. The witness need not be the photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene or object in question and testify that it is correctly portrayed by the photograph. McCormick on Evidence, sec. 181; Brownlie v. Brownlie, 357 Ill. 117. Here no foundation was laid for the admission of the photographs. The only evidence in the record referring to them up to the point when they were admitted was that of Kooyumjian that the photographs had been taken after his car had been repaired. The defendant argues that any error in their admission was cured by the plaintiffs’ subsequent cross-examination of defendant, where defendant stated that the pictures had been taken by his father on the day following the accident, that he had seen the pictures on that day, and that the exhibits introduced in evidence were enlargements of those original pictures. This testimony was not sufficient to justify their admission even if it had been in the record before the photographs were offered in evidence. In any case, it is not material because the pictures were not re-offered after the testimony came into the record, and the only question before us is the propriety of the court’s ruling on their original admission. It is generally recognized that photographs have a greater influence upon a jury than oral testimony and consequently it is necessary that all requirements substantiating their accuracy have been complied with. In Chicago & E. I. R Co. v. Crose, 214 Ill. 602, where photographs were excluded because they had been taken twelve months after the accident, the court says:

“Photographs offered in evidence for the purpose of contradicting witnesses or explaining a transaction are only competent when they are shown to have been so taken as to correctly exemplify the actual situation, circumstances and surroundings at the time. When the situation and surrounding circumstances are subject to change, photographs, to be of any value as evidence, must be shown to have been taken at the time or when the situation and surroundings are unchanged. (Chicago and Alton Railroad Co. v. Corson, 198 Ill. 98; Lake Erie and Western Railroad Co. v. Wilson, 189 Ill. 89.)”

Here, at the time the photographs were admitted in evidence, there was no indication whatsoever as to when they had been taken. Before their admission, the defendant, without objection, examined plaintiff Kooyumjian concerning them. It is apparent from this examination that the defendant treated the photographs as showing the condition of the car immediately after the accident and before repair. This was not substantiated by the evidence. If the jury believed, as they might, that the photographs correctly represented the condition of the car immediately after the collision, they could properly draw an inference from the slight damage apparent therein that the impact caused no damage to Kooyumjian’s car. They could also draw the conclusion that the impact must have been very slight and that injuries alleged and testified to by the plaintiff Kolosick did not occur. The photographs in evidence were prejudicial to both plaintiffs. Their admission was error.

The plaintiffs also object to the admission in evidence of certain office notes made by the physician concerning his patient Kolosick. During the direct examination of Dr. Ireland he did not refer to his notes. During cross-examination he was asked by counsel for defendant if he had made notes, and upon his replying that he had with him in his pocket the notes which he made, counsel asked the witness to give them to him. At this time no objection was made by the plaintiffs. The physician handed the notes to counsel for defendant. Counsel then proceeded to examine the physician in great detail on the contents of the notes. The witness admitted there were certain discrepancies between his notations and his testimony in the case, and he attempted to explain the discrepancies and tell how they had occurred. On the witness stand he stated that he charged for first aid treatment $260. The notes show a charge of $50 which he stated should have been changed and that the note was incorrect. The record does not indicate that the witness used the notes either on direct examination or on cross-examination for the purpose of refreshing his recollection, and we can disregard all argument made by the defendant in support of that theory of admissibility. The defendant also argues that the exhibits were properly admitted for the purpose of impeaching the witness. It has been held that when a witness admits that the statements called to his attention were made by him prior to the trial it is not necessary or proper to admit them in evidence, even though they are contradictory to the statements made by the witness on the stand. Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill. 202. Here on cross-examination the witness admitted that all the statements contained in the notes which were called to his attention had been made by him with the exception of the reports from the X-ray laboratory. The doctor on the stand had testified that at his original examination one objective symptom found was an abrasion on the left knee. The notes in enumerating the objective symptoms fail to show this. There is a notation in the notes with reference to treatment for an injury to the knee caused by a fall on the street a month after the accident. However, it should be noted that the plaintiff Kolosick in her testimony had stated that she would at times be struck by sharp pain as a result of the accident and that on one of such occasions she fell and injured her knee and went to the doctor for treatment. Also included in the notes was a report from the Eavenswood Hospital dated December 26, 1950, the date of the accident, which indicated that an X-ray had been taken of the knee. The omission of abrasions from the objective symptoms included in the notes was not a contradiction. Among other things the notes contained two reports made by the X-ray operator who took the X-rays of the plaintiff Kolosick at Eavenswood Hospital. The X-rays were not produced in court, nor were they referred to at all on the direct examination of the physician-witness. On cross-examination the witness testified that he had examined the X-rays himself and had found pathology involving the spine. The report of the X-ray operator indicates that the X-rays showed no pathology of the spine. The witness testified that he called this to the attention of the operator and that the operator had indicated agreement. The reports appearing among the notes cannot be used for the purpose of impeaching the witness. They were not made by him, and his statement that his findings from the X-rays were different from the findings of the operator would not make the statement of the operator, who was not present in court or subject to cross-examination, admissible. The report was hearsay. Plaintiffs’ objection to their admission was sufficient.

It is undoubtedly the rule that the notes having come into the hands of counsel for defendant, even though his obtaining possession of them might have been prevented if an objection had been interposed at the proper time, he was entitled to use them for any proper purpose, and his detailed examination of the physician upon the notes and the variances between them and the testimony on the stand was proper insofar as it went to material matters. The cross-examination went far beyond the testimony of the witness on direct, and went into matters not material to the issues. In at least two instances proper objections were interposed by plaintiffs which were overruled by the court. The admission of the notes was highly prejudicial, and particularly so when we consider the argument made by the defendant in his brief filed in this court, in which he says: “The notes were of such nature as to throw doubt on the professional qualifications of the witness — history, examination, diagnoses, treatments, prescriptions, consultations, charges — are a helter-skelter accumulation of unrelated matters” and “the jury was entitled to see them, to weigh and to judge them, and to determine whether they, as contemporaneous notes, or the testimony, of a witness present before them, would lead the jury to the truth.” If the notes could have been properly admitted for the purpose of impeachment, the only purpose for which the jury could have used them in their deliberations would be to determine whether or not they would believe the testimony of the witness before them. They could not be used in any case as substantive evidence, and outside of the question of determining whether they would or would not believe the testimony of the witness, the jury had no right to draw any other inference from them. The defendant in the quotation taken from his brief indicates that he believes that the jury had the right to consider the exhibits as substantive evidence. If they were so used, the jury might have been influenced to disbelieve all of the testimony of the physician-witness with reference to whether the plaintiff Kolosick received any injuries growing out of the occurrence, or if she did, as to whether or not those injuries were permanent. It is impossible for a reviewing court to probe into the mental operations of the jury in their deliberations in the jury room. We cannot say what effect this evidence might have had on tEeir verdict. It was highly prejudicial to Kolosick; so prejudicial that its admission constitutes reversible error.

Evidence was also permitted in the record, over objection of plaintiff Kolosick, with reference to her ownership of various automobiles, the number of tenants she had and her ownership of property. This had nothing to do with the issues and its admission was improper and prejudicial.

Plaintiffs also object to the giving of an instruction to the effect that if the injuries and damages sustained were “as a result of an accident which occurred without the fault of the defendant, then the plaintiffs cannot recover.” The case was tried on the theory of negligence. There was nothing indicating that the occurrence was the result of an accident not coupled with negligence. The giving under such circumstances of such an instruction has been repeatedly condemned, and its validity in any case is very doubtful. Williams v. Matlin, 328 Ill. App. 645, citing Rzeszewski v. Barth, 324 Ill. App. 345. Giving such an instruction is error, though standing alone it would not be considered ground for reversal.

Upon the record before us it cannot be said that plaintiffs had a fair trial. Since the case must be tried again the other instructions alleged to be objectionable and the allegedly prejudicial remarks of the trial court need not be discussed. The judgment of the Superior Court of Cook county is reversed and the cause remanded for a new trial.

Reversed and remanded.

ROBSON and SCHWARTZ, JJ., concur.


source: Caselaw Access Project

author: JUDGE ROBSON

license: Public Domain

text:
    Mary Wawryszyn, Administrator of Estate of Bohdan Wawryszyn, Deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 46,663.
    First District, Second Division.
    May 29, 1956.
    Rehearing denied June 19, 1956.
    Released for publication June 19, 1956.

      Herbert J. Deany, William J. O’Brien, Jr., Robert S. Kirby, and Charles I. Hopkins, Jr., all of Chicago, for appellant; Joseph H. Wright, of Chicago, of counsel.
    James A. Dooley, of Chicago, for appellee.
   JUDGE ROBSON

delivered the opinion of the court.

This appeal involves a death action brought, under the Federal Employers’ Liability Act (45 U. S. C. A. secs. 51-59) by the plaintiff, widow and administrator of the estate of Bohdan Wawryszyn, deceased, against his employer, the defendant, Illinois Central Railroad Company. A jury trial resulted in a verdict of $90,000 for the plaintiff. The trial court overruled defendant’s motions for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict. Defendant appeals.

Defendant’s principal contentions are that the trial court erred because (1) there was not sufficient evidence of negligence to sustain the verdict; (2) even if defendant was negligent, such was not the proximate cause of decedent’s injury; (3) certain testimony of plaintiff’s witness BiancM was improper and prejudicial to defendant, and (4) improper and prejudicial actuarial testimony was admitted into evidence.

A review of the evidence in the light most favorable to the plaintiff reveals that decedent was a member of a freight handling crew in the employ of the defendant railroad company. Their job was to unload freight from dollies into boxcars. On November 6,1951, checkers Phillips and Threat unloaded a crated diesel motor, weighing between 3,300 and 3,400 pounds, from a truck on the loading platform onto a four-wheel dolly. The four-wheel dolly was six feet long, three feet wide, and thirteen inches to the top of the bed. It had four swivel wheels. The dolly was new and in good condition. These men testified that they had instructions to place heavy freight on a piano dolly, which was about six inches closer to the ground than the four-wheel dolly, and had six nonswivel wheels. The defendant had only four piano dollies, and the men were unable to locate one not' in use. They informed the foreman, Streb, of this fact, and Streb then helped them put the crate on the four-wheel dolly.

Plaintiff’s witness Bianchi, an assistant foreman for defendant at the time of the accident, testified that a four-wheel dolly is easier to tip over than a piano dolly; that the four-wheel dolly was made for merchandise under 100 pounds, such as cartons; that the four-wheel dolly was not the customary one for hauling the type of load here involved; that there were instructions by the foreman to place heavy loads on piano dollies. He testified, over objection, that it was not good practice to place so heavy a load on a four-wheel dolly, and that other railroads employed other methods which were safer.

There was testimony that the nearer the dolly is to the ground the less the possibility of any cargo falling off when being unloaded, and that the piano dolly is nearer the ground than the four-wheel dolly. On cross-examination one of defendant’s witnesses admitted that it was more difficult to unload a heavy load from a dolly with swivel wheels than one with fixed wheels.

It was the job of decedent’s crew to unload this crate from the dolly in the boxcar. The dolly was brought into the boxcar and pushed to its west end. A boxcar is about nine feet wide. Two of the crew members, Zick and Washington, jacked up the east end of the crate and placed a roller underneath it. It was raised approximately six to eight .inches. The men then attempted to push the crate off of the dolly. The west end of the dolly tipped down and touched the floor with the diesel crate on top of it. It was in a position wherein the dolly and motor were resting on the west end and the east end of the dolly was lifted. They were unable to pull the dolly out from under the crate. Decedent was standing in the center of the south side of the load. Zick went to get a tractor to pull out the dolly. Suddenly the cargo fell to the south side pinning the decedent, and crushing the lower part of his body. He subsequently died from these injuries. After the accident it was observed that the cargo was top heavy. One of the crew members testified that just before the crate fell he stated out loud: “I don’t like it. It looks dangerous,” and that decedent failed to move to a position of safety.

It is first argued that defendant’s motion for a directed verdict and judgment notwithstanding the verdict should have been allowed. Recent decisions of the federal courts and our own state courts have held that unless there is a total failure or lack of evidence tending to prove negligence in an F. E. L. A. action, a verdict should not be directed. Wilkerson v. McCarthy, 336 U. S. 53; Louisville & N. R. Co. v. Botts, 173 F.2d 164; Bonnier v. Chicago, B. & Q. R. Co., 2 Ill.2d 606; Glime v. New York Cent. R. Co., 5 Ill.App.2d 509. Plaintiff’s complaint contained various allegations of negligence. Among these was the charge that defendant employed improper equipment for doing the particular work involved, and that it undertook to accomplish the work in an unsafe method. Does the record totally lack any evidence tending to support these charges?

The record indicates that defendant employed two types of dollies for loading and unloading cargos into boxcars; that the piano dolly was used for heavy cargos, and the four-wheel dolly for light cargos; that the employees had instructions to use the piano dolly for heavy cargos; that the piano dolly, because of its nonswivel wheels, is easier to unload than a four-wheel dolly; that the piano dolly, because of its low axel and strong balance, is not likely to tip when heavy cargos are placed on either end; that the accident in question occurred after the four-wheel dolly had tipped to the floor, putting the heavy cargo in a precarious position. When we consider this evidence in the light of the recent cases referred to, we are impelled to hold that the question of defendant’s negligence was properly one for the jury.

Defendant further contends that judgment should have been entered in its favor because its negligence, if any, was not the proximate cause of decedent’s injury. Defendant’s theory seems to be that the use of the four-wheel dolly merely created the condition under which the accident occurred, and that the proximate cause of injury was decedent’s own failure to take a safe position after the dangerous condition came into being. In support of this position defendant cites Seith v. Commonwealth Elec. Co., 241 Ill. 252, 259, where the court said:

“To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence.”

We fail to understand how the foreseeability argument can be of any help to defendant. The fact that two different tyes of dollies were used for light and heavy cargos, in itself, indicates that defendant foresaw the inadvisability of using the four-wheel dolly for heavy cargos.

The following language from Dowler v. New York, C. & St. L. R. Co., 5 Ell.2d 125, 132-3, is controlling on this point:

“Under the old concept of proximate cause, that cause must have been the sole, direct, and responsible cause of the injury. Contributing and related causes were not sufficient. However, the newer view in both the Federal and State courts, in cases arising under the Federal Employers’ Liability Act, is that if the negligence has causal relation, or if the injury or death resulted in part from the defendant’s negligence, there is liability. 45 U. S. C. sec. 51, 45 U. S. C. A. sec. 51; Lillie v. Thompson, 332 U. S. 459, 92 L. ed. 73; Eglsaer v. Scandrett, 151 Fed.2d 562; Tatham v. Wabash Railroad Co., 412 Ill. 568; Stefanowski v. Chain Belt Co., 129 Wis. 484, 109 N. W. 532.”

It cannot be questioned but that there was some causal relation between the tipping of the four-wheel dolly and the falling of the crate. Thus, if defendant was negligent in using the four-wheel dolly in this instance, such negligence had a causal relation to the injury. Whether or not decedent failed to exercise due care for his own safety is not material to the primary question of whether or not defendant is liable, because contributory negligence is no defense under the Federal Employers’ Liability Act. Hall v. Chicago & N. W. Ry. Co., 5 Ill.2d 135.

Defendant’s next contention is that the court erred in allowing plaintiff’s witness Bianchi to testify, over objection, that certain other railroads used forklift trucks for handling heavy freight. This evidence was directed at the question of whether defendant was negligent in having the men unload the dolly in the freight car manually. Defendant argues that such evidence was irrelevant and immaterial to the issue of its negligence, and that it amounted to evidence of safer methods and thus was not proper evidence for the jury’s consideration.

Defendant relies on Blue v. St. Clair Country Club, 4 Ill.App.2d 284, and Doucette v. Vincent, 194 F.2d 834, for the proposition that evidence of safer methods is not admissible on the question of negligence. The Blue case has since been reversed by the Illinois Supreme Court in 7 Ill.2d 359. In the Doucette case the court held that the trial court did not err in excluding evidence of safer methods, but went on to say that the admission of such evidence lies in the discretion of the trial court. It may be admitted “for whatever evidentiary value it may have to show that a defendant did not take the care required by law in using the device or appliance he did, when there were available to him better and safer devices or appliances.” The very question here involved was recently passed upon in Margevich v. Chicago & N. W. Ry. Co., 1 Ill.App.2d 162. On p. 167 of that opinion the court said:

“The testimony of experts with respect to safer methods used on other railroads is an evidentiary basis upon which the jury can decide whether the equipment and method of the railroad were reasonably safe, or whether it should have used safer equipment and methods.”

We conclude that defendant’s contention on this issue is without merit.

Defendant next contends that the trial court erred in allowing plaintiff’s witness Bianchi to give his opinion as to the propriety of the equipment used to do the work involved. Bianchi was employed by the Illinois Central for twenty-eight years before becoming a general foreman for the C. B. & Q. Bailroad. During his last twelve years at the Illinois Central he was an assistant foreman. He testified that he was familiar with the loading and unloading practices of the Illinois Central at the time and place of the occurrence in question. On direct examination the witness was asked:

“Mr. Bianchi, will you tell us whether in your opinion, based upon your years of experience, it was góod practice to load a motor such as you have described on this type of four wheeled truck as portrayed by Defendant’s Exhibit 2?” The witness answered, “No.” Defendant’s objection was overruled. Defendant argues that this question called for an opinion on an ultimate issue in the case and thus constituted an invasion of the province of the jury.

We believe it can be said to be the law of this state that neither an expert nor a nonexpert witness may give his opinion on an ultimate issue in the case. Gillette v. City of Chicago, 396 Ill. 619; Hughes v. Wabash B. Co., 342 Ill. App. 159; Keefe v. Armour & Co., 258 Ill. 28; Cleveland, G, C. & St. L. Ry. Co. v. Curtis, 134 Ill. App. 565. The question of defendant’s negligence was clearly an ultimate issue in this case. Plaintiff contends that the question and answer complained of did not constitute an opinion on the issue of defendant’s negligence, but merely elicited the fact that this was not the customary way the work was done on well-operated railroads. This reasoning is fallacious because it is based upon the invalid assumption that that which is not customary practice cannot be good practice. Noncustomary practice and bad practice are not synonymous terms. In fact, noncustomary practice may, in many cases, be equal to if not better than customary practice.

Nowhere among the cases involving opinions on the ultimate issue of negligence is there a ruling on the language “good practice.” An opinion that defendant’s conduct was “negligent” is clearly inadmissible. Bogers, Bacon & Go. v. Hart, 106 Ill. App. 393. It is also clear that an opinion that a situation caused by or a method used by defendant was “unsafe” or “not reasonably safe” is error. Keefe v. Armour & Co., supra; Village of Fairbury v. Rogers, 98 Ill. 554; City of Chicago v. McGiven, 78 Ill. 347; Pagan v. City of Highland, 152 Ill. App. 607; McFarland v. George W. Jackson, Inc., 189 Il. App. 453. The rule also has been held to apply to opinions that a situation caused by or a method used by defendant was “extra-hazardous” or “dangerous.” Kolb v. Sandwich Enterprise Co., 36 Ill. App. 419; Hughes v. Wabash E. Co., supra. However, the cases of Hoener v. Koch, 84 Ill. 408, Kellyville Coal Co. v. Strine, 217 Ill. 516, Lee v. Eepublic Iron & Steel Co., 241 Ill. 372, and Schultz v. Burnwell Coal Co., 180 Ill. App. 693, indicate that it is not error for a witness to testify that the defendant’s conduct or method was “proper” or “improper.” It has been suggested that the theory for nonapplication of the ultimate issue rule in the above line of cases is that “improper” does not necessarily mean “dangerous” or “unsafe.” Page 55, King and Pillinger, Opinion Evidence in Illinois (1942). This line of cases was decided prior to 1914 and has not been cited for over forty years.

The purpose of the ultimate issue rule is to preserve the independence of the jury. Its application should not be affected by technical, semantical distinctions. If the probabilities are that the jury will construe an expert’s opinion that defendant’s conduct or method was bad or improper to be the expert’s opinion on the ultimate issue of negligence, then, according to the purpose of the rule, that opinion should not be allowed. We feel that Bianchi’s opinion that defendant’s practice was not good is, as far as the jury is concerned, an opinion on the ultimate issue of negligence.

The modern tendency clearly seems to be away from the ultimate issue rule. Eecently some jurisdictions have discarded the rule in varying degrees. Hooper v. General Motors Corp., 260 P.2d 549 (Utah); Dowling v. Shattuck, 91 N. H. 234; Grismore v. Consolidated Products Co., 232 Iowa 328; Woyak v. Konieske, 237 Minn. 213, 54 N.W.2d 649; Schweiger v. Solbeck, 191 Ore. 454, 230 P.2d 195; New York Life Ins. Co. v. Wolf, 85 F.2d 162. We conclude, however, that the law of Illinois, properly construed, requires a finding that the testimony here complained of was improper.

Although the question and answer were improper, and the objection should have been sustained, we are of the opinion that the error was not sufficiently harmful to require a reversal. Before and after the objectionable question was put to Bianchi, he stated fully the reasons why a four-wheel dolly should not be used for a heavy load. Other of plaintiff’s witnesses testified to the same effect. This evidence was of a proper character and was sufficient to authorize a finding that defendant was negligent in using a four-wheel dolly for the type of load involved. The clear inference to be drawn from said testimony was that it was not good practice to use a four-wheel dolly for heavy cargos. The objectionable question and answer, while erroneous, were merely cumulative on that point, and not of sufficient importance to require a reversal. City of Springfield v. Coe, 166 Ill. 22; City of Joliet v. Johnson, 177 Ill. 178; City of Litchfield v. Anglim, 83 Ill. App. 55.

We now come to defendant’s contention that the actuarial testimony on the damages issue was improper and prejudicial. Plaintiff’s witness Reise, a qualified consulting actuary, testified that on the basis of figures read to the jury by plaintiff’s counsel, the decedent’s average monthly take-home pay was $320.93. This figure represented the gross monthly earnings less deductions for federal income tax, for railroad retirement, and hospital insurance. It did not take into consideration any allowance for decedent’s own personal expenses.

Reise further testified that decedent’s life expectancy at the time of death was 467 months or 453 months, according to two different recognized life tables. He then testified that the present value of monthly earnings at $320.93, discounted at 2% for a period of 467 months is $104,404.25, and at 3% discount is $88,938.08; that the present value of monthly earnings at $320.93, discounted at 2% for a period of 453 months is $102,302.81, and at 3% discount is $87,492.87.

Later in his testimony Reise deducted $40 per month for decedent’s personal expenses, leaving average monthly contributions at $280.93. He testified that the present value of this figure was $91,391.54 or, at the higher discount rate $77,853.04 on the basis of an expectancy of 467 months, and $89,552.02 or, at the higher discount rate, $76,587.95 on the basis of an expectancy of 453 months.

Defendant objected to the first group of computations on the ground that since the measure of damages in an F. E. L. A. death action is the pecuniary loss reasonably to be expected by the widow and children of the deceased, computations based on future lost earnings rather than contributions, have no bearing on the question of damages, and serve the sole purpose of prejudicing the jury by exposing it to large, irrelevant figures. This objection was overruled.

In disposing of this issue we must decide two questions. First, is testimony as to probable future lost earnings a relevant consideration in a case of this nature and, second, if not, was the testimony in this case so prejudicial as to constitute reversible error.

The measure of damages in an F. E. L. A. death action is the pecuniary loss to the widow and minor children of the decedent. Dow v. CarnegieUlinois Steel Corp., 165 F.2d 777.. The recovery is determined by and limited to the present cash value of the future benefits of which the beneficiaries are deprived. Kennedy v. Ross, 213 Ill. App. 446. It is true that in order to determine future lost pecuniary benefits, the average monthly or annual earnings of the decedent must be ascertained. We can see, however, no relevancy in capitalizing the average earnings and reducing the resultant figure to present value. The only evidence of earnings that can be of any possible aid to the jury in determining future lost benefits is that of the average monthly or annual earnings.

Plaintiff relies on numerous cases for the proposition that “earning capacity” may be considered by the jury in-measuring the damages. That, however, does not mean that future lost earnings are a proper consideration. A man’s earning capacity is how much he earns or can earn per week, per month or annually, and not how much he would have earned the rest of his life, had he not met an untimely death.

In the recent case of Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill.2d 164, the Illinois Supreme Court frowned upon the practice of allowing the actuary to make computations on the basis of figures appearing in evidence, and, on pages 177 and 178 suggests that the actuary employ “neutral figures” and simply describe to the jury the mathematical process of determining present value. The former practice, however, was not held to be reversible error.

It seems quite clear to this court that plaintiff has failed to produce any theory by which the kind of actuarial testimony complained of is relevant to the measure of damages in an F. E. L. A. death action. It remains to be decided whether or not, though improper, the admission of this testimony over objection was reversible error.

As we have seen, the $320.93 figure represented decedent’s gross monthly earnings less deductions for federal income tax, hospital insurance and railroad retirement. The record reveals that the average gross monthly earnings of decedent was approximately $360. Thus about $40 was deducted from decedent’s monthly earnings in order to arrive at his net take-home pay of $320.93. In the Allendorf case, supra, an F. E. L. A. death action, the Illinois Supreme Court said at p. 181: “Appellee also points out that the testimony of the actuary was needlessly favorable to defendant. Since the trial of the instant case this court has held in Hall v. Chicago & North Western Railway Co., 5 Ill.2d 135, ‘that the incident of taxation is not a proper factor for a jury’s consideration, imparted either by oral argument or written instruction. It introduces an extraneous subject, giving rise to conjecture and speculation.’ The trial court required the actuary to consider present value of future contributions after deduction of income tax. Plaintiff’s attorney acquiesced in this ruling as well as the giving of instruction No. 27. The estimate of the actuary, by deducting income tax, was more than $10,000 less than it would be without such deduction.”

The court also said at p. 178:

“Defendant argues that the amount spent on insurance premiums was not a contribution to Allendorf’s dependents: The insurance was to go to his dependents upon his death and it gave them needed security to take care of such eventuality. In Chicago & North Western Railway Co. v. Curl, 178 F.2d 497, 502, it was held that sums paid for railroad retirement are not to be deducted in computing plaintiff’s probable earnings for purposes of an F. E. L. A. action.”

The clear implication of this language is that the deductions of income tax, insurance premiums and railroad retirement need not and, in fact, should not be brought to the attention of the jury. This being the case, decedent’s gross monthly earnings, less his $40 per month personal expenses, would have been a proper figure for the jury’s consideration. The figure of $320.93, while not arrived at in the proper manner, was approximately equal to decedent’s gross earnings less personal expenses, and therefore could not be prejudicial. The fact is that in the light of the Allendorf case, supra, the actuarial testimony in the instant case, taken as a whole, was “needlessly favorable” to the defendant. We are, therefore, unable to see wherein defendant was prejudiced.

Defendant further contends that the verdict was grossly excessive and that certain of plaintiff’s instructions contained reversible error. In the light of the actuarial testimony and the various elements that properly may be considered by the jury in this type of case, we cannot see wherein the verdict was grossly excessive. Many of the alleged errors in the instructions are based on alleged errors in the conduct of the trial which we have held not to be reversible. Instructions are to be regarded as a connected series, and it is sufficient if, as a whole, they correctly state the governing law. Bobalek v. Atlass, 315 Ill. App. 514. In so viewing these instructions we do not feel that they in anyway operated to the prejudice of the defendant.

Judgment affirmed.

McCOBMICK, P. J. and SCHWABTZ, J., concur.


text:
    Oscar Steiner, Appellee, v. Rig-A-Jig Toy Company, Appellant.
    Gen. No. 46,718.
    First District, Second Division.
    May 29, 1956.
    Rehearing denied June 19, 1956.
    Released for publication June 19, 1956.

      Grossman & Grossman, of Chicago, for appellant; Samuel Grossman, of Chicago, of Counsel.
    Jesse H. Brown, of Chicago, for appellee.
   JUDGE ROBSON

delivered the opinion of the court.

Defendant, Rig-A-Jig Toy Company, appeals from a judgment confirming a judgment by confession previously entered in favor of the plaintiff. The confessed judgment on two promissory demand notes executed by the defendant corporation was in the sum of $40,000 principal, $19,200 interest, and $3,000 attorney’s fees.

The records reveals that the plaintiff, Oscar Steiner, M. S. Landfield, and the intervening petitioner, Joseph Wertheimer, had, since 1935, been engaged in a series of business relationships. In 1945 these three men agreed to participate in a new venture involving a child’s toy, called a Rig-A-Jig. Plaintiff and Wertheimer each advanced $10,000 to the enterprise in 1945 and early 1946. This $20,000 was designated as “Loans Payable — Wertheimer-Steiner” on the corporate books.

In 1946 plaintiff and Wertheimer advanced an additional $40,000 to defendant by check drawn on the Craftsmen Finance Company, of which they were sole and equal owners. This $40,000 was designated “Loans Payable — Craftsmen Finance Company” on the corporate books. Later that year Wertheimer and the plaintiff each received $10,000 from Rig-A-Jig. The corporate books showed this payment as canceling out the 1945 “Loans Payable” of $20,000 to Steiner and Wertheimer. The $40,000 “Loans Payable — Craftsmen Finance Company” remained open.

In July of 1948 two promissory notes for $20,000 each, payable on demand, were executed by defendant; one made payable to Craftsmen, and one jointly to plaintiff and Wertheimer. The notes were indorsed by the respective payees and delivered to the plaintiff. These are the notes on which the plaintiff confessed judgment, o Upon the filing of defendant’s amended petition the judgment was opened up. The amended petition alleged, in substance, that the notes were not issued for the purpose of evidencing a debt and, if they be recognized as evidencing a debt, payments were made which should be credited against such obligation. Wertheimer thereupon filed his intervening petition alleging that he owned a one-half interest in each note, and making factual allegations in substantial agreement with the allegations of defendant’s amended complaint. The trial court reserved the hearing on the intervening petition and decided that the plaintiff was entitled to the judgment as confessed.

The general theory of defendant’s case, as stated in its brief, is that “it is not always true that a promissory note is given to evidence a debt. ... It devolves upon the court in any such ambiguous situation to ascertain the intent of the parties inter se. . . .” This unique statement precedes a detailed analysis of testimony and exhibits, but nowhere is there a clear statement of the actual defense upon which the corporation relies. There is no charge of fraud, and payment was not pleaded as a complete defense. Defendant’s argument, in a vague way, seems to hint at want of consideration for the notes, but nowhere does it specifically rely on this as its defense to the action.

At the outset of a business venture an atmosphere of optimism and friendliness nearly always prevails and breeds impatience with the details of legal contracts. In their eagerness to organize what appears to be a profitable venture men enter into business deals with only vague notions of their relationship to one another and to the enterprise. Characteristic of such a situation is the failure to anticipate the problems that might ensue if'the enterprise was unsuccessful or the participants became hostile. The record in this case, filled as it is with uncertainties and inconsistencies, is an example of what may result from such a situation. Ambiguous and uncertain evidence cannot dispel the absolute and unconditional obligations that are represented by a promissory note.

On this appeal defendant contends that the trial court erred in the following respects: (1) in deciding the issues against the manifest weight of the evidence; (2) in excluding certain testimony and documentary evidence, and (3) in reserving the trial on the intervening petition until after the trial of the issue between plaintiff and defendant.

A substantial part of defendant’s case is made up of parol evidence to the effect that the books of the corporation and the notes in question do not reflect the true intention of the parties, and that the notes were not really intended to evidence a debt. In Weinstein v. Sprintz, 234 Ill. App. 492, plaintiff indorser, not a holder in due course, sued the maker of a $500 check. The defense was that the maker and payee intended said check to be a receipt for money which the maker gave to the payee at the beginning of their partnership venture. The court said that the check on its face was an absolute order given by defendant to the payee, and parol evidence which tended to show that the check was merely intended to be a receipt and not for the payment of money was not admissible. Werner v. Steele, 8 Ill.App.2d 460; Chandler v. Chandler, 326 Ill. App. 670.

It would seem that the rule of these cases is applicable to much of the testimony of defendant’s witnesses. We need not decide this case on that theory, however, because even if parol evidence was properly made a part of the record, we feel that the trial court’s decision was nevertheless not against the manifest weight of the evidence.

In determining whether or not the trial court’s decision was against the manifest weight of the evidence, we must look to the record to see if there was substantial evidence supporting the plaintiff’s position.

There is testimony to the effect that at the time the original $20,000 was advanced, in 1945 and early 1946, the issuance of stock was discussed. But there was no direct testimony that it was agreed that the money paid in at that time was to be purchase money for corporate stock and not a loan. Wertheimer testified, in fact, that “the interest was not clearly stated at that time because we were a little nebulous in our thoughts.” It is undisputed that neither Wertheimer or Steiner ever received any stoch of the company. The vagueness of Wertheimer’s testimony at that point is representative of the vague state of the record with respect to the incorporation of this enterprise and the steps leading thereto. Nowhere does the record indicate when the defendant was incorporated, whether there were any subscription agreements, or other similar documents which could have shed considerable light on the issues involved in this lawsuit.

Later in 1946 plaintiff and Wertheimer each advanced an additional $20,000 to the company, in accordance with an oral agreement. It is not clear whether Landfield was to put in $20,000 or $20,000 worth of printing. The corporate books nowhere reflect the receipt of cash or services from Landfield with respect to this agreement. There is testimony that it was also orally agreed that this advance was only to be repaid out of profits.

The $40,000 was originally received by the corporation in the form of a personal check from plaintiff or Wertheimer, which was followed by a letter from Wertheimer to Landfield dated June 25, 1946. The letter referred to the $40,000 advance as “the last of the requests for capital investment in Rig-A-Jig.” But the letter also said “that money coming in from Rig-A-Jig now will be used to pay off Oscar and myself as quickly as convenient. . . .” This latter statement would be more likely to emanate from a creditor to a debtor, than from a purchaser of stock to a corporation or from a gratuitous contributor of funds to a corporation.

On June 28, 1946, plaintiff wrote to Landfield, enclosing a check for $40,000 issued on Craftsmen Finance Company, and requesting the return of the earlier $40,000 personal check. The letter explained that this procedure was being followed in order to avoid “certain tax complications.” On direct examination the defendant’s witness Glasser, accountant for defendant, testified that just prior to the time the $40,000 was advanced to Rig-A-Jig, he and Wertheimer discussed the tax consequences in the event the said $40,000 was lost. Glasser testified: “He then stated that suppose instead of Steiner and he making this as a personal loan to Rig-A-Jig, that was handled through the Craftsmen Finance Company, which is a corporation that they had. . . . And he stated then if that were the case he certainly would want to make it as a corporation loan. . . ” That testimony indicates that Wertheimer’s primary concern was not whether or not to make this in the form of a loan, but whether to make it a personal loan or a corporate loan.

If the $40,000 advance was not intended to be a loan, it is not clear just what it was supposed to be. Wertheimer did testify that they considered it to be a “capital investment” and that such term was actually employed in the conversations between the parties. At the same time, the witness Glasser, on cross-examination, testified that “capital contributions” are not purchases of stock, and that this $40,000 was really intended to be a “capital contribution.”

Defendant relies heavily on the fact that the parties referred to the $40,000 advance as a “capital investment” or “capital contribution” in both their conversations and their written correspondence. These terms appear to have been used interchangeably and loosely. The mere use of these terms, standing alone, and in the light of other uncertainties and inconsistencies appearing in the record, did not, in our opinion, constitute evidence sufficient to overcome the absolute and unconditional obligation of the notes.

After judgment was confessed against defendant, in 1954, Glasser, defendant’s accountant, altered and predated the corporate books to reflect that the $40,000 advance was a “capital contribution” rather than a loan, and that certain repayments of that contribution had been made. There appears to have been no records or data which would support this change. The self-serving nature of this post-judgment alteration of the books clearly renders these entries devoid of any evidentiary value. If any relevancy can be found in this manipulation of the books, it lies in the unfavorable inference that a calculated attempt was made to construct a defense, and the alteration of the books was resorted to because of the difficulty of that task.

It is true that the notes sued on were not executed until July of 1948, two years after the $40,000 was advanced to the corporation. An antecedent debt, however, is good consideration for a promissory note. Ill. Rev. Stat. 1955, ch. 98, sec. 45; McLeish v. Hanson, 157 Ill. App. 605. A promissory note absolute on its face creates, in itself, the presumption that a debt is owing from the maker to the payee. Hinshaw v. Security Trust Co., 48 Ind. App. 351, 93 N. E. 567. This presumption is rebuttable. However, when such presumption is strengthened and substantiated by the corporate records of the maker, the rebuttal evidence must be of a very clear and cogent nature, particularly when it is parol evidence.

We are of the opinion that the testimony and evidence presented by the defendant was not sufficient to overcome the presumption that the notes in question did evidence a debt, and that such debt arose by virtue of a $40,000 loan from plaintiff and Wertheimer to the defendant.

Defendant further argues that even if the moneys advanced by plaintiff and Wertheimer are held to be loans, the trial court erred in giving judgment for the face value of the notes, because the evidence disclosed that there had been partial repayment of the debt on two different occasions. The first partial repayment is said to have occurred in December of 1946, when defendant gave plaintiff and Wertheimer each a check for $10,000. The corporate books showed this payment to be in satisfaction of the 1945 $20,000 “Loans Payable — Steiner-Wertheimer.” The record affords insufficient basis for disturbing the trial court’s finding that the original $20,000 advance was a loan. Moreover, defendant’s own witnesses gave conflicting accounts as to the purpose of the $20,000 distribution. It is important to note that this distribution took place after the $40,000 had been paid in, but before the notes in question were executed. The fact that the notes which evidenced the debt of $40,000 were executed subsequent to the date- of the $20,000 distribution is, in itself, evidence that said distribution was not intended to be in partial repayment of the $40,000 loan. This fact, plus the state of the corporate books, along with the vague and inconsistent evidence produced by defendant, leads us to the conclusion that the $40,000 debt, evidenced by the promissory notes, was not reduced by the $20,000 distribution in December 1946.

Defendant contends that its funds which were transferred to Town Investment Company in 1948 and 1949 and then, in 1950, distributed equally to Steiner, Wertheimer and Landfield, constituted the second partial repayment on the $40,000 debt. The evidence concerning this alleged distribution is not clear. Assuming, however, that there was such a distribution, we are of the opinion that the trial court properly disregarded the testimony on this issue. The fact that this distribution was made equally to plaintiff, Wertheimer and Landfield, instead of to plaintiff and Wertheimer alone, indicates that it was not intended to be in repayment of a debt owed to Steiner and Wertheimer. Moreover, the notes were in existence at this time and no attempt was made to have them reflect that a partial repayment had been made. Proof of payment does not, in itself, conclusively determine that the payment was made upon the notes. Robison v. Bailey, 113 Ill. App. 123.

Having determined that a $40,000 debt was owing, we must consider the effect of the uncontradicted testimony of defendant’s witnesses that it was orally agreed that repayment was only to be made out of profits. The importance of this testimony arises from the fact that the defendant corporation never made any profits. In Handley v. Drum, 237 Ill. App. 587, the defendant purchased stock from the plaintiff and executed a note as consideration. In plaintiff’s action on the note, defendant testified that at the time said note was executed the parties orally stipulated “that the note should be paid only out of dividends declared by” the company. In reversing judgment for defendant, the Appellate Court said: “The promissory note was a written contract to pay $2,500, which was absolute in its terms. It is elementary that the defendants could not show by parol, even as against the payee of the note, that the parties had an understanding that the contract in fact was conditional.” The court further said: “. . . it must be held that the defendants delivered the note ‘for the purpose of giving effect thereto,’ and even if, as the trial court put it in the instruction above quoted, the parties agreed prior to the execution of the note, ‘that the defendants would not be liable to pay said note except from the profits’ of the company and the company made no profits, the defendants are nevertheless liable in this action because the alleged agreement did not impose a condition precedent to a complete delivery of the note but rather one which applied to the payment of the note and as this contradicted the express terms of the note, to be binding on the parties, it must have been made in writing and could not be shown by parol.” This case is clearly in point and precludes defendant from showing conditions of payment by parol evidence. Also see Foy v. Blackstone, 31 Ill. 538; Dairyman’s State Bank v. Dunham, 271 Ill. App. 249; Tegtmeyer v. Nordlund, 259 Ill. App. 247; Weinstein v. Sprintz, 234 Ill. App. 492.

Defendant’s second contention is that the trial court erred in excluding from evidence a certain letter, and also certain testimony of defendant’s witness, Kenost.

The letter in question was from the plaintiff to Landfield, dated July 30, 1951. It constitutes a confirmation, by plaintiff, of a verbal agreement of settlement between plaintiff and the defendant. Plaintiff makes reference therein to his “one-third interest” in defendant corporation. The general and undisputed rule is that offers of settlement, as such, are not admissible into evidence. Hill v. Hiles, 309 Ill. App. 321. It is defendant’s position, however, that when an offer of settlement contains certain independent and relevant admissions of fact, the admissions are admissible in evidence against the party making them even though they form part of an offer of settlement. This appears to be a correct statement of the law. Hook v. Bunch, 180 Ill. App. 39. The only explicit admission contained in this letter is that the plaintiff had a one-third interest in defendant corporation. This does not appear to us to be a relevant admission because it is not adverse to the interests that the plaintiff is asserting in this action. Even if the plaintiff did have a one-third interest in the defendant, that would not preclude him from loaning it money. In any event, we do not feel that the exclusion of this letter was reversible error because we cannot say its admission into evidence would have justified a different finding by the trial court.

We find no merit in defendant’s contention that the trial court committed reversible error in preventing the witness Kenost from testifying to a conversation between Wertheimer and Landfield concerning the adjusting entries of March 1, 1954. Those entries were made after judgment had been confessed against defendant, and the entries, themselves, and conversations concerning them, particularly conversations out of the presence of the plaintiff, were of such a self-serving nature and so lacking in probative value, that their exclusion could not be a basis for reversal.

Defendant’s third contention is that the trial court erred in reserving the trial on the intervening petition until after the trial of the issues between the plaintiff and defendant. A trial court must be allowed broad discretion in determining which issues shall be heard first. No abuse of that discretion has been shown in this case. Administrative convenience is the primary factor influencing the trial court’s determination of which issues shall be heard first. The instant litigation would have been concluded had the court found that the defendant was not indebted to the plaintiff. There would then have been no necessity to pass on the intervening petition. Thus, administrative expediency was best served by hearing the debt issue first.

There being no adequate defense to the notes sued on, and no reversible error in the conduct of the trial, the judgment of the trial court is affirmed.

Judgment affirmed.

McCORMICK, P. J. and SCHWARTZ, J., concur.


author: JUDGrE ROBSON

text:
    Frank Gasquoine, a Minor, by Rose Gasquoine, His Mother and Next Friend, Appellant, v. Max H. Bornstein, and Esther Bornstein, Appellees.
    Gen. No. 46,775.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      Louis G-. Davidson, and Lonis P. Miller, both of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago, for appellees; Oswell Gr. Treadway, of Chicago, of counsel.
   JUDGrE ROBSON

delivered the opinion of the court.

This is an appeal by the plaintiff from an order of the trial court dismissing an amended complaint for failure to state a cause of action. The decision was reached solely on the pleadings. The issue before the court was whether a landlord can be held liable to the infant child of a tenant for injuries sustained when the child falls through a defective window screen.

The facts as alleged by the pleadings are simple. Plaintiff at the time of the occurrence was seventeen months old and lived with his parents in a third-floor apartment leased to them by the defendants. He charges that the defendants negligently furnished and maintained an inadequate, insecure and defective screen for the bedroom window which was likely to fall out when slight pressure was exerted. He further charges that the inadequate, insecure and defective screen constituted a common nuisance. He further charges that when he was leaning against the screen it gave way and he fell to the sidewalk below breaking both arms and sustaining other injuries.

The trial court based its order dismissing the complaint on the eases of Crawford v. Orner & Shayne, Inc., 331 Ill. App. 568, and Rogers v. Sins, 349 Ill. App. 353. In the Crawford case decided by this court, we quoted and relied upon the following language from Egan v. Krueger, 103 N. J. L. 474, where it is said at page 574:

“A screen in a window, obviously, and of common knowledge, is not placed there for the purpose of keeping persons from falling out of a window, any more than the glass in the window itself is placed there for that purpose. Consequently, it is manifest that this accident was not the result of the failure of the defendant to perform any duty which he owed to the child for her protection.”

The Rogers case decided by the Fourth District, quoted and followed the Crawford case. In neither of these cases was petition for leave to appeal filed in the Supreme Court. The same rule is followed by Massachusetts, Chelefou v. Springfield Institution for Savings, 297 Mass. 236; Louisiana, Yates v. Tessier, 5 La. App. 214; California, Schlemmer v. Stokes, 47 Cal.App.2d 164, and Nebraska, Markussen v. Mengedoht, 132 Neb. 472.

Plaintiff contends that there are two divergent schools of thought among the courts of last resort in the United States on the point in question; that the decisions of the courts in Missouri, Virginia and the United States Court of Appeals for the Fifth Circuit have reached a conclusion opposite to that of our Appellate Courts; that these decisions are better reasoned and should be the rule in Ulinois. The principal case on which plaintiff relies is Shaw v. Butterworth, 327 Mo. 622, in which plaintiff fell through a defective third floor screen. Defendant’s janitor had agreed to install screens and had installed a defective screen through which plaintiff fell. In the opinion the court discussed Egan v. Krueger, supra, and said at page 630:

“Moreover, while a primary purpose of a window is to admit light and air, and to prevent the entry of objectionable elements, and that of screens to keep out insects while letting in light and air, yet it is common knowledge that a secondary purpose is allocated to windows and screens and that purpose involves ordinary protection against persons falling from the window. [Miller v. Peck Dry Goods Co., 104 Mo. App. 609, 78 S. W. 682.] It is also common knowledge that a screen, constructed and placed in a window casing in the manner ordinarily done, is sufficiently secure to withstand the pressure of a person leaning against it. It was a jury question as to whether the screen as originally constructed was intended to withstand ordinary pressure.”

Plaintiff states that the courts of this state should take into consideration the secondary purpose as stated in the Shaw case, and that, therefore, it should be a question of fact for the jury. There was an additional factor involved in the Shaw case which plaintiff failed to state. The landlord agreed as a part of the rental arrangements to install a screen sufficient to serve as a bar to the window and prevent children from falling out. The court, while it made the statement as quoted, did not hold that in the absence of such an agreement there was a duty on the landlord to install a screen or that he would be liable to an injured child if he failed so to do.

Plaintiff also cites Baker v. Dallas Hotel Co., 73 F.2d 825, decided by the United States Fifth Circuit Court of Appeals, in further support of his contention. In that case plaintiff’s decedent, an infant, with his parents occupied a room as a guest in a hotel operated by the defendant. Plaintiff left her child playing in the room and went to the bathroom. The child climbed into the window, leaned against the screen, which gave way, and fell to his death. There were heavy iron grills outside some of the windows of the hotel but none on this window. The trial court directed a verdict holding that there was no actionable negligence on the part of the defendant. On appeal the judgment of the trial court was reversed. The case of Shaw v. Butterworth, supra, was cited and the reasoning of the part we quoted followed. An innkeeper, however, was involved and he owes the highest degree of care to his guests for their safety. A landlord, as in the instant case, does not owe this to his tenants. Plaintiff also cites Cross-

white v. Shelby Operating Corp., 182 Va. 713, another innkeeper case which cites with approval the Baker decision. The court, however, said at p. 715:

“The rule which applies to landlords does not always apply to innkeepers. An innkeeper is in direct and continued control of his guest rooms, while a lessee may be expected to do many things for his own protection.”

We have carefully considered the reasoning in the cases cited by plaintiff in support of his argument and can find no real justification for reaching a conclusion contrary to the cases of Crawford v. Orner & Shayne, Inc., supra, and Rogers v. Sins, supra.

Plaintiff also contends that the failure to provide an adequate screen was in violation of section 96-16 of the Chicago Municipal Code, which provides that it shall be the duty of every person owning or controlling any residence to equip windows with “suitable and adequate” screens and appliances so attached or arranged as to prevent the ingress of flies to the interior of such residence. Plaintiff argues that this places a responsibility on the landlord to install a screen that will not fall out. We do not believe that the ordinance is susceptible of such an interpretation. The only requirement is that the screens be suitable and adequate to prevent the ingress of flies and not for any other purpose. Courts cannot restrict or enlarge the meaning of an unambiguous statute. People v. Fisher, 373 Ill. 228; Smith v. Board of Education of Oswego Community High School Dist., 405 Ill. 143. To allow the interpretation contended for by plaintiff would be to enlarge the meaning of the ordinance beyond its obvious intent.

Plaintiff further contends that the demised premises constituted a nuisance. There are no facts alleged in the complaint to substantiate this contention. It is merely an unsupported conclusion. A motion to dismiss does not admit conclusions of law or of fact unsupported by allegations of specific facts upon which the conclusions must rest.

The order of the trial court dismissing the complaint is affirmed.

Order affirmed.

McCORMICK, P. J. and SCHWARTZ, J., concur.


text:
    Francis Shiroma, Appellant, v. Roy M. Itano and Helen S. Itano, Appellees.
    Gen. No. 46,807.
    First District, Second Division.
    May 29, 1956.
    Released for publication June 19, 1956.

      Sidney S. Altman, of Chicago, for appellant.
    Crowe, Tates, Abrahamson & Fisk, of Chicago, for appellees; Burt A. Crowe, of Chicago, of counsel.
   JUDGE ROBSON

delivered the opinion of the court.

This is an appeal from a judgment entered upon directed verdict for defendants after both parties had, rested. Neither defendants’ request for a directed verdict nor the peremptory instruction of the court indicate in what particular plaintiff failed to prove his cause of action. Plaintiff contends that the evidence established a prima facie case in his favor and that the issues of negligence and contributory negligence were questions of fact for the jury. These are the two questions we must decide.

Viewing the evidence in its aspects most favorable; to the plaintiff, the record reveals that defendants own a multiple dwelling of more than two stories,, containing apartments and rooms occupied by tenants. Defendants lived in the first floor apartment and Jack Isota, a tenant, and his wife lived on the second floor, at the head of the front stairway. Opposite the Isotas’ kitchen door, on the wall óf the hallway, was an electric light containing a ten-watt bulb. The hall or corridor was about three and one-half feet wide. At the far end, about twenty feet from the light, was an L-shaped turn. At the end of the hall was a door that led to a common stairway which the tenants of the second and third floors descended in order to get out through the back entrance. Next to the stairway door, located in the turn of the hallway, was a door leading to a bedroom where the mother of one of the landlords lived. At a right angle to these doors, and at the end of the short turn in the hallway, was a door leading to a bathroom. There was no sign on any of these three doors and no light over the door leading to the stairway. The doors were similar in appearance.

The plaintiff entered these premises “on the invitation of Mr. Isota,” a tenant, who told the plaintiff and others “to get together and have a game of cards.” The plaintiff had been to the building once before, but never had visited the rear stairway or the toilet on the second floor. After the guests arrived at the Isota apartment they “sat around . . . and talked for a little while and . . . then decided to have a small game.” All of the witnesses testified that they played poker, and one stated they were playing a twenty-five-cent limit.

About four hours after the start of the game, and while the game was still in progress, at 1:30 a. m., plaintiff asked his host, the tenant Isota, where the toilet was. Mr. Isota told him it was down at the end of the hall. He went down the hall toward the three doors. He opened the first one. It was dark, but he could see the threshold. He looked up and saw a dim reflection of the wall in front of him. He took a step a little past the threshold where he felt the floor. He could see the floor very dimly. He started to feel for the light switch on the side of the wall, but didn’t find it. Thinking there might be a light cord he turned the other way and looked for it on the other side. As he was doing that he took another step forward and fell down the stairs, sustaining injuries that are the subject matter of this lawsuit.

The first question for our determination is whether or not the issue of defendants’ negligence should have gone to the jury. A landlord owes the guests of his tenant the duty of exercising reasonable care to keep those portions of the premises which are under his control, or used in common by the tenants, in a reasonably safe condition. Clerken v. Cohen, 315 Ill. App. 222. A question of fact as to the negligence of a landlord is unquestionably raised where it is alleged that he maintained an unlighted common stairway, and that the door leading to the stairway was unlighted and without sign or warning of any kind to an invitee of a tenant. Forden v. Copilove, 349 Ill. App. 162. In this case, however, defendants argue that the question of duty, and not that of reasonable care, is controlling. Defendants contend that before negligence can be actionable, it must be established that the negligent party owed a duty of care to the injured party, and that defendants owed no duty of care to plaintiff because he was engaged in an unlawful enterprise on the premises, to wit, playing poker for money.

Defendants cite no relevant case authorities in support of this legal proposition, but rely on the following language which appears in 32 Am. Jur., Sec. 691, p. 568:

“The landlord owes a duty to persons lawfully visiting the tenant upon business to exercise reasonable care to keep the premises safe. . . . The duty of a landlord to have property under his control, such as common passageways, reasonably safe extends also to all those who have lawful occasion to visit the tenant for social purposes.” (Emphasis ours.)

Similar language appears in numerous Illinois cases. In Murphy v. Illinois State Trust Co., 375 Ill. 310, it was said that the landlord is liable “for an injury which results to persons, lawfully in such place. ...” In Hart v. Sullivan, 324 Ill. App. 243, the court said that the landlord’s duty extends “to those who have lawful occasion to visit the tenant for social purposes.” The phrase “third parties who are lawfully within the building” appears in Kopta v. Greer Shop Training, Inc., 327 Ill. App. 470. In none of these cases, however, was the purpose or motive of the guest in issue. We have not been able to find any Illinois case that construes the meaning of the term “lawfully” as it appears in these various statéments of the landlord’s liability to third persons injured on premises under the landlord’s control or used in common by the tenants.

The word “lawfully” as used in the context of these cases, is subject to two reasonable definitions. One is narrow and one is broad. It could refer only to the legal status of the injured person in relation to the tenant. Under this definition the landlord’s duty of reasonable care would extend to business invitees and social invitees and licensees of the tenant, but not to technical or aggressive trespassers. The term unquestionably extends this far, and it is well settled that the landlord’s only duty to trespassers is to refrain from willful and wanton misconduct. Brownstein v. Electric Household Utilities Corp., 326 Ill. App. 466. The interpretation of the law urged by defendants, however, is that the term “lawfully” implies a broader limitation on the duty and liability of the landlord; that it refers to the motive and purpose of the injured person’s presence on the premises, as well as to his legal relationship with the tenant; and that if that motive or purpose is unlawful, the landlord’s ordinary duty of care ceases to exist. Whether or not this latter theory is a proper view of the law is the question we must decide.

The responsibility and liability of an innkeeper to an invitee of a guest would not be different from that of a landlord to an invitee of a tenant under the issue involved in this case as to preclude analogy. The authorities appear to be divided as to the effect of the unlawful motive or conduct of the invitee of a guest on the innkeeper’s duty of care. In Jones v. Bland, 182 N. C. 70, 108 S. E. 344, it was held that an innkeeper owes no duty to a person going to the room of a guest, upon the latter’s invitation, for the purpose of gambling, except not willfully or intentionally to injure him. The court’s theory appears to have been that the innkeeper’s duty does not extend to wrongdoers who come upon the premises for an unlawful purpose, and that even though invited by a guest of the inn, such person has the status of a trespasser in his relation with the innkeeper.

The Supreme Court of Mississippi took an altogether different approach in the case of Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782. There the plaintiff’s decedent, on his way to visit a prostitute in the defendant hotel, met his death through the negligence of the hotel elevator operator. The court treated this case as one where a person enters an inn for the purpose of visiting a guest therein, and held that the illegal purpose of the decedent did not release the hotel from its duty of care. The court’s theory is found on p. 785 of the opinion:

“For a plaintiff to be barred of an action for negligent injury under the principle of public policy implicit in the maxim ex dolo malo non oritur actio, his injury must have been suffered while and as a proximate result of committing an illegal act. The unlawful act must be at once the source of both his criminal responsibility and his civil right. The injury must be traceable to his own breach of the law and such breach must be an integral and essential part of his case. Where the violation of law is merely a condition and not a contributing cause of the injury, a recovery may be permitted. . . . Regardless of the propriety for a private or public condemnation of one for a moral delinquency, matters which affect his personal character or reputation are no concern of the courts in their examination of his rights as a litigant.”

Our Supreme Court has clearly indicated its approval of this latter theory as applied to general negligence cases. Bonnier v. Chicago, B. & Q. R. Co., 2 Ill.2d 606; Lerette v. Director General of Railroads, 306 Ill. 348. Should it be extended to apply to negligence cases involving a landlord and an invited guest of his tenant?

The physical presence of the plaintiff on defendants’ premises was not, in itself, unlawful. He was there because of the express invitation of the tenant. He was not a trespasser. While there he violated a statute. His misconduct, however, cannot be said to have altered his status as a guest of the tenant, because it occurred at the invitation and request of the tenant. As a guest, the plaintiff continued to be lawfully present on the premises. It is clear that a landlord may be liable to one who, though a stranger to the landlord, is injured by a defective common passageway or stairway. Such liability is dependent upon the relationship of the injured party to the tenants of the landlord. Elbers v. Standard Oil Co., 331 Ill. App. 207. One who is an invitee of a tenant is an implied invitee of the landlord. Fisher v. Jansen, 30 Ill. App. 91. If the conduct of the third party fails to destroy his status as an invitee of the tenant, we see no sound reason for holding that, as a matter of law, it destroys the implied invitation of the landlord.

Where the unlawful conduct of the injured party is the proximate cause of his injury, then, it will unquestionably bar his right of recovery, having the same effect as contributory negligence. Newton, v. Ellinois Oil Co., 316 Ill. 416; Belmont Garage Corp. v. J. W. Petersen Coal Co., 328 Ill. App. 575. This was not the fact in. the instant case. The plaintiff was injured at a time when he had excused himself from the card game, and was on his way to perform a natural and lawful act. The fact that the plaintiff may not have been at the place of accident had it not been for his unlawful motive, is not in itself sufficient to make his unlawful conduct the proximate cause of his injuries. Lerette v. Director General of Railroads, supra.

We conclude that the plaintiff was lawfully present on the defendants’ premises, and that his unlawful conduct thereon, being unrelated to the manner in which he received his injuries, was an insufficient basis to deprive him of his civil rights against a negligent defendant.

The next question for our determination is whether or not plaintiff was guilty of contributory negligence as a matter of law. The cases cited by defendants on this point are all distinguishable because they either contain certain factual elements not present in the instant case, or fail to contain certain circumstances that did exist in this case. The plaintiff was told, by one familiar with the premises, that the toilet was at the end of the hall. He proceeded to a door that was at a right angle to the corridor in which he was traveling. There was nothing to indicate the danger that was lurking behind this door. The door opened to darkness. Plaintiff, however, did not blindly advance. He attempted to discover the light switch, and did so from what might be considered a reasonably safe position. His first step was across the threshold and a portion of the floor which he could see dimly. On his second step he fell.

The facts in Coken v. Peterson, 340 Ill. App. 518, were very similar to those in the instant case. There, on pp. 522-3, the court said:

“Plaintiff in the instant case, finding herself in darkness, did not go forward in search of the washroom but reached up and about for a light cord, stepped backwards and fell down the stairs. We think it was for the jury to determine. . .”

We, too, feel that it was for the jury to determine whether or not plaintiff exercised due care for his own protection and safety. This is not a situation where it can confidently be said that reasonable minds could not differ.

For the reasons herein stated the judgment is reversed and the cause remanded for new trial.

Judgment reversed and cause remanded with directions.

McCORMICK, P. J. and SCHWARTZ, J., concur.