text:
    People of the State of Illinois, Appellee, v. Robert L. Haywood, Appellant.
    Gen. No. 50,464.
    First District, Second Division.
    June 21, 1966.
    Frank J. Merrill, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Stuart P. Shapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

Included in this case is a writ of error to the Criminal Court of Cook County for a review of a finding of guilty as to Robert Haywood, the same defendant under Indictment 62-929, which consisted of one count for robbery.

Defendant pleaded not guilty to the indictment and waived trial by jury. He was tried by the court and found guilty as charged. The sentence was to run concurrently with the sentences given for his convictions under Indictment 62-928, which was tried immediately before the instant trial by the same judge.

It is the theory of the plaintiff in error that the State failed to prove beyond a reasonable doubt that he is the one who committed the alleged act. Mrs. Hodges, who was the complaining witness, testified that on March 22, 1962, she entered the vestibule of her apartment building at 449 East 81st Street, in Chicago, Illinois. As she started to open her mailbox the plaintiff in error came and stood against the outer door. They looked at each other for about two seconds. When he entered he had his right hand in his pocket and his black jacket pulled halfway over his face. The ceiling light was turned on at the time. When the assailant walked towards her she grabbed his jacket and pulled it down. They wrestled there for about three or four seconds. She broke loose and commenced pounding on the door and calling the lady on the first floor. At that time the assailant turned around and took her purse and ran out. She identified Robert Haywood in the courtroom as her assailant.

Her purse contained a $20 bill and $2 in change. It also contained various papers including identification papers and charge plates. After the incident in the vestibule she went upstairs and called the police; two officers arrived in about ten minutes. On March 31, 1962, she saw the plaintiff in error in a police lineup and pointed him out to Lt. Riordan.

She testified that Haywood told the Lieutenant that he did not commit the alleged act. He said that his friend, Clyde, did it. Haywood further told the Lieutenant that Clyde wore his hair the same way as Haywood did and that Clyde had borrowed his black jacket. He said that Clyde looked like him. Mrs. Hodges further stated that Haywood said that he had seen her papers from the wallet that Clyde had stolen. She also testified that the only thing different about Haywood’s appearance in court was that the hair on the assailant was “processed higher.”

She identified the man in a lineup on March 30, 1962, and completed her identification on March 31,1962.

It is well settled that a positive identification by one witness is sufficient for conviction even though the testimony is contradicted by the defendant, provided the witness is credible and viewed the defendant under circumstances that permit positive identification. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965). It is the province of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony and the court’s judgment will not be disturbed unless it is based on clearly unsatisfactory and improbable evidence which leaves a reasonable doubt of the defendant’s guilt. People v. Neiman, 30 Ill2d 393, 197 NE2d 8 (1964).

The trial court in the present case believed Mrs. Hodges’ interpretation of the circumstances under which she identified defendant as the man who robbed her. The identification was positive and there was no reasonable doubt of defendant’s guilt. The judgment is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BRYANT

license: Public Domain

text:
    In the Matter of the Estate of Joseph L. Costello, Deceased, The Chicago Heights National Bank, Petitioner-Appellant, v. Elvira M. Costello, Administrator of the Estate of Joseph L. Costello, Deceased, and Ralph Emery, Respondents-Appellees.
    Gen. No. 50,555.
    First District, Second Division.
    June 21, 1966.

      McGrane, Perozzi and Stelter, of Chicago Heights (Joseph J. McGrane and Joseph R. Perozzi, of counsel), for appellant.
    Piacenti and Cifelli, of Chicago Heights, for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from the denial of a petition for citation filed by the Chicago Heights National Bank as a seventh class creditor of the estate of Joseph L. Costello and against Elvira M. Costello, administratrix of the estate and Ralph Emery, partner in the Regal Vending Machines Company, a business co-owned by Emery and the decedent.

Joseph L. Costello died August 5, 1963. On September 13 of that year his widow, Elvira M. Costello, was duly appointed administratrix of his estate.

On December 4, 1963, the appellant, Chicago Heights National Bank, filed a claim against the estate of Joseph L. Costello based on six promissory notes executed on various dates by the decedent. The seventh class claim of the bank was allowed by the court February 19, 1964, in the sum of $15,865.65 which sum included interest to date of $305.65. On January 27, 1964, one Edward Anderson was authorized to appraise the goods and chattels of the decedent. He did not appraise the partnership assets. A partnership inventory was filed by Ralph Emery as the surviving partner of Regal Vending Machines Company. The partnership inventory and the appraisal submitted by Edward Anderson were approved by the court February 7, 1964. This partnership inventory showed that the decedent had overdrawn his capital account in the sum of $5,611.95 and his total interest in the partnership assets to be $5,694.73. Ralph Emery’s interest in the partnership was listed as $19,965.65. There was no value assigned to good will in the partnership inventory.

On February 15, 1964, eight days after the court below approved the inventory, the appellant filed a petition for citation to issue against the administratrix and Ralph Emery. The petition alleged that information concerning property belonging to the decedent had been withheld and asked that certain records be produced for inspection and that certain interrogatories be answered by Mrs. Costello and Mr. Emery. It was also asked that the appellant or someone chosen by it be permitted to examine and audit the books of the partnership.

At the hearing on the petition the appellant produced a statement signed by the decedent June 30, 1963, shortly over a month before his death, which showed his interest in the partnership to be $16,034.40 rather than the $5,694.73 shown in the inventory. It should be observed at this point that the administratrix, Elvira M. Costello and Ralph Emery are sister and brother.

We believe the court below should have granted the appellant’s petition. Ill Rev Stats, 1963, c 3, § 183 reads:

“Upon the filing of a verified petition therefor, the probate court shall order a citation to issue for the appearance before it of any person whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, books of account, papers, or evidences of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his executor, administrator, guardian, or conservator . . .”

There is no question but that the Probate Division of the Circuit Court had the powers formerly given the Probate Court in this section. The defense of Elvira M. Costello and Ralph Emery is that the order of the Circuit Court approving the partnership inventory filed by Emery is res judicata and not subject to attack by the appellant. As authority for this proposition they cite In re Estate of Trapani, 21 Ill App2d 19, 157 NE2d 83 (1959). We do not think that case is applicable to the case at bar. There the Probate Court had ascertained the value of the decedent’s partnership interest; no one had appealed from that judgment. The matter was later raised in proceedings involving exactly the same parties as were before the court at the earlier date in a new proceeding concerning the administratrix’s power to compromise a claim against the partnership. The court said during the course of its opinion:

“. . . The order on that first petition of November 23, 1956 making such judicial ascertainment and directing that the Executor shall so receive such an amount as an ordinary creditor is res judicata of those matters. No appeal therefrom was taken by anyone. It cannot be collaterally attacked here.” 21 Ill App2d 19, 35, 157 NE2d 83, 93.

This case, however, is manifestly different from that before the court in Trapani, supra. The appellant was not before the court when the inventory was approved; its claim was not allowed by the court until after that date. As was said in People v. Kidd, 398 Ill 405, 408, 409, 75 NE2d 851, 854 (1947), “When a former adjudication is relied upon as an absolute bar to a subsequent action, the only questions to be determined are whether the cause of action is the same in both proceedings, whether the two actions are between the same parties or their privies, whether the former adjudication was a final judgment or decree upon the merits, and whether it was within the jurisdiction of the court rendering it.”

As far as it appears from the record, the parties before the court when the partnership inventory was approved were the administratrix and the surviving partner. This being so, the matter cannot be res judicata on the appellant. In addition, we note that rule 14.14 of the Circuit Court rules which covers the filing of inventories in the Probate Division provides in subsection (e) that a supplemental inventory shall be filed where assets have been improperly included in or excluded from a prior inventory. Clearly, this rule does not anticipate that the approval of an inventory in the Probate Division of the Circuit Court prevents an appropriate party from having a citation issue under section 183 of the Probate Act.

There is nothing in the statute or rules which prevents this appellant from having his motion granted in the Probate Division. The underlying intent to be derived from the Probate Act and the rules governing the Probate Division strongly suggest the court should have granted the motion of the appellant creditor.

A question has been raised concerning the fact that the inventory filed in the Probate Court did not provide any value for good will. Good will is not a tangible asset, and there is nothing which would require that the partnership list good will as an asset. Behn v. Shapiro, 8 Ill App2d 25, 130 NE2d 295 (1955). Had the partners agreed to set aside a certain sum as good will, one-half of this amount should have been included in the inventory.

For the reasons above given, the order of the Circuit Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded with directions.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE LYONS

text:
    William Jurney, Plaintiff-Appellee, v. Joseph Lubeznik, a/k/a Joseph Lubcznick or a/k/a Joseph Lubeznick, Defendant-Appellant.
    Gen. No. 50,693.
    First District, Second Division.
    June 21, 1966.

      Howard, French and Healy, of Chicago (Richard G. French, of counsel), for appellant.
    Lloyd P. Douglas, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of plaintiff, after a jury trial, in the amount of $25,000 for injuries received in a fire.

This case was previously tried and a judgment entered in favor of defendant, which was reversed on appeal because of an improper instruction. Jurney v. Lubeznick, 54 Ill App2d 372, 204 NE2d 166 (1964).

Since approximately 1955 defendant owned and operated the Arcade Hotel located at 1011-1013 West Madison Street in Chicago, Illinois. The clientele of the hotel were people who lived on West Madison Street. The charge to spend the night in one of the sleeping rooms was 80 cents. There were a number of permanent residents who paid $5.25 per week. The first floor of the building contained stores and the second and third floors contained the hotel. There were approximately 70 sleeping rooms or cubicles on the third floor of the building or second floor of the hotel and about 60 cubicles on the second floor or first floor of the hotel. This floor also contained the hotel desk and a lobby which had a television set, tables for checkers or cards and places to sit for the purpose of reading. The cubicles themselves were 6 ft. by 8 ft. The walls of the cubicles did not reach the ceiling, the ceiling being about 12 ft. high and the walls about 7% ft. high. The cubicles were enclosed at the top with wire. The cubicles were furnished with a cot, a dresser and a chair together with bedding for the cot. Entry was through a wooden door which could be locked by the occupants.

The cubicles were supplied with a light fixture which hung down into the center of the room from a conduit. The fixture had a pull type switch and the socket was fitted with a light bulb of 15 watt capacity because the building was over 50 years old and a larger bulb would blow fuses and perhaps cause a fire. A 15 watt capacity bulb was felt to be sufficient since the cubicles were basically sleeping rooms. Light shades were not supplied for the lights, because with the doors closed, one could not see into the cubicles from the aisle, and if there was a shade on the light the density of the light coming through the top of the cubicle could not be seen. Thus, a person would be unable to tell if a tenant was using a larger bulb in the socket. There was testimony that the tenants often used paper for shades on these bulbs and had replaced the bulbs with larger ones and that this practice was known to defendant and his employees.

After defendant leased the premises in 1955, he installed an automatic sprinkler system which contained a sprinkler head located over every 9 square feet of both floors of the hotel. These were set by the fire department to go off if the temperature got to 160° Fahrenheit. There was an automatic sprinkler head directly over the cubicle involved here.

Plaintiff had been employed by defendant prior to March 24, 1960, as a night porter. According to the defendant’s records the last night he had worked was March 21, 1960. Plaintiff testified that he had worked the night of the 23rd and early morning of the 24th of March, 1960. The duties of a night porter were to mop the lobby, clean the washrooms and patrol the hotel to see that there was no noise and no fires in the building. They were also instructed that if they saw a bulb larger than 15 watts in any cubicle they were to remove it and replace it with a 15 watt bulb. They were also to remove shades that might be on any of the lights. A maid was employed who had worked at the hotel for 5 years prior to the fire. Her duties were to make the beds and clean the cubicles. She worked every day except Sunday. It was also her duty to remove any light bulbs that were over 15 watts and to replace them with a 15 watt bulb and to remove any shades she might find on the bulbs.

On March 24, 1960, at about 10:00 a. m. a fire occurred in one of the cubicles on the second floor of the hotel, the third floor of the building. The fire started in the cubicle of a tenant by the name of Hendrickson. There was testimony that Hendrickson had used paper as a lampshade on the light bulb in his cubicle before the day of the fire and that this fact was known by defendant’s employees. At the time of the fire, the maid had not yet reached the second floor in her daily cleaning duties, but was still working on the first floor. Plaintiff went to the cubicle where the fire was, kicked open the locked door and among other things tore a burning newspaper from around the light bulb with his bare hands and then trampled on the paper after he threw it to the floor. During this process his pants caught fire and he sustained burns to his hands and legs. The light, a 75 watt capacity bulb, was still on after the fire was extinguished.

Defendant’s theory of the case is (1) that there was insufficient evidence for the jury to find defendant guilty of any negligence, (2) that plaintiff was guilty of negligence as a matter of law, (3) that the court erred in its rulings on the admissibility of certain evidence, (4) that the court erred in its rulings on certain instructions submitted to the jury, (5) that the jury’s answer to a special interrogatory was against the manifest weight of evidence, and (6) that the verdict was excessive.

We disagree with defendant’s first contention. There was sufficient evidence for the jury to find defendant guilty of negligence. There are five allegations of negligence contained in plaintiff’s complaint and they read as follows:

1. Failed to provide lamp shades for the lights in the tenants’ rooms when he knew said tenants were in the habit of placing makeshift lamp shades of combustible material on said lights in close proximity to the bulbs so as to create a danger of fire;

2. Suffered and permitted an exposed burning light bulb to be shielded with combustible material in such close proximity to the bulb as to create a danger of fire;

3. Failed to inspect said premises and to discover the presence of the said burning electric light bulb shielded with inflamable [sic] paper, and to ascertain whether the same was safe for the plaintiff and others invited into said premises as paying guests;

4. Suffered and permitted a tenant to remain in the hotel without providing him with permanent type lamp shades when it was known by the defendant that said tenant had placed combustible material in such close proximity to an exposed electric light bulb as to create a danger of fire;

5. Failed to maintain and have readily available a fire extinguisher in the area of and in close proximity to the area where said burning electric light bulb, shielded with paper, was located.

The fire in question occurred in the cubicle occupied by Hendrickson, when a newspaper which had been placed over the bulb, caught fire. Hendrickson was a permanent tenant of the hotel and occupied his cubicle for some months prior to the date of the fire. There was evidence that Hendrickson had used newspaper as a shade for the bulb on prior occasions, that this practice was known to defendant’s employees and that defendant took no steps to remove Hendrickson as a guest in the hotel. There was also evidence that defendant’s employees could enter the cubicles to inspect the premises and that defendant had knowledge that certain tenants were in the habit of placing makeshift shades of combustible material on the lights. The verdict of the jury was proper.

Defendant’s second contention is that there was insufficient evidence to support the jury’s finding that plaintiff was free from contributory negligence. It is true, as defendant points out, that the humanitarian doctrine applies only to persons attempting to save the life or secure the safety of another person. West Chicago St. Ry. Co. v. Liderman, 187 Ill 463, 470, 58 NE 367 (1900), Divine v. Pfaelzer, 277 Ill 255, 115 NE 126 (1917). Plaintiff testified that when he first saw the fire, he believed that Hendrickson was in the cubicle. It is also true that he testified that after he kicked the door in, he saw there was no one in the room. We feel, however, that it was reasonable for plaintiff, even after seeing no one was in the room, to jerk the blanket off the bed and tear the newspaper off the bulb in an attempt to put out the fire and that the jury could and did so find.

Defendant points out that two or three minutes elapsed from the time he knew that no one was in the room until he had put out the burning newspaper. This is only half true in that there was also evidence submitted, by plaintiff, that he was busy jerking the blanket off the bed, putting out the fire on the blanket, sheet and mattress, prior to tearing the newspaper from the bulb.

Defendant also points out that because plaintiff worked on the premises, he should have been aware of the fact that there was a fire extinguisher close to the cubicle.

Again, the jury could have properly found that a reasonable man would have acted in the same manner under the circumstances.

Defendant further points out that plaintiff had creosote on his pants from working on the railroad. It was contended that the creosote made the pants more flammable. Defendant, however, in his argument on damages, stated that plaintiff had not been working on the railroad for the past few years. Defendant cannot accept plaintiff’s testimony of his working on the railroad when he deems it favorable to his cause and then reject the same testimony when it is unfavorable.

Defendant’s third contention is that the trial court committed prejudicial error in its rulings on the admissibility of certain evidence. The first allegation of error is that one Dr. Leonard Smith was erroneously allowed to testify as a treating doctor and it was therefore improper for him to offer testimony as to plaintiff’s medical history and complaints. We disagree. There was testimony in the record that Dr. Smith recommended a shoe lift.

Furthermore, the history of the accident given by plaintiff and the extent of the burns received by plaintiff were, in the main, not in dispute. Defendant contends, however, that the effect of the testimony was prejudicial in that Dr. Smith testified that plaintiff stated that in kicking open the door, some burning paper came down on him, burning his left leg and hands. We disagree. This testimony was not prejudicial because, as we have pointed out above, the fact that plaintiff was engaged in putting out the fire in the blanket, sheet and mattress prior to pulling down the flaming newspaper from around the bulb was not unreasonable conduct under the circumstances.

Defendant next alleges error in that the cross-examination of one Charles Farley, by plaintiff, was outside the scope of defendant’s direct examination. Plaintiff’s purpose in exacting this testimony was to show that defendant had knowledge that larger bulbs had been placed in the socket on prior occasions by Hendrickson. We find that the cross-examination was outside the scope of defendant’s direct examination and was erroneous. There was, however, testimony by Flora Williams, the maid, that she had on occasion found larger bulbs in the sockets and had replaced the larger bulbs with 15 watt bulbs. This testimony elicited by plaintiff was cumulative and therefore not prejudicial.

Defendant next alleges that the court erred in sustaining plaintiff’s objection to a certain question put to defendant’s witness, Richard Eddy, and in refusing defendant’s offers of proof thereon. Defendant offered to prove by witness, Eddy, that the tests run on a 40 watt bulb showed that the maximum bulb coat temperature was 397° Fahrenheit and that the bulb coat temperature of a 75 watt bulb, the capacity of the bulb found in the light fixture after the fire, would be higher. Plaintiff’s position is that this evidence would have been speculative. We agree with plaintiff. The evidence of a higher bulb coat temperature was irrelevant and immaterial to the issue of defendant’s negligence, in that no evidence was offered that the same fire could not have happened if Hendrickson had used a newspaper shade over a 15 watt bulb.

Defendant next alleges error in that the court permitted plaintiff’s witness, one Leo Kenyon, to testify in rebuttal. Leo Kenyon testified that he had been playing Dominos with plaintiff until the time of the fire. He also testified that there were no fire extinguishers in the area. We feel that it was proper rebuttal testimony and not cumulative of plaintiff’s testimony in that defendant testified in his case in chief, by implication, that plaintiff was an alcoholic and thus impliedly drunk at the time of the fire. Kenyon’s testimony with respect to the fact that he had been playing Dominos with plaintiff until the time of the fire was for the purpose of showing that plaintiff was not intoxicated at the time of the fire.

Defendant next alleges error in that the court limited defendant’s cross-examination of the witness, Leo Kenyon, after permitting him to testify as to alleged nonrebuttal matters. Defendant on cross-examination asked Leo Kenyon whether he had been a tenant of the hotel on numerous occasions and whether he had knowledge of the existence of fire extinguishers on the first floor of the hotel. It was not error for the court to sustain plaintiff’s objections, as it was improper cross-examination.

Defendant next contends that the court erred in instructing the jury. Over defendant’s objection, the court gave the following instruction:

Plaintiff’s Instruction No. 2.

The plaintiff claims that he was injured and sustained damage while exercising ordinary care, and that the defendant was negligent in one or more of the following respects with respect to the maintenance and control of his hotel rooming house:

Failed to provide lamp shades for the lights in the tenants’ rooms when he knew said tenants were in the habit of placing makeshift lamp shades of combustible material on said lights in close proximity to the bulbs so as to create a danger of fire;

Suffered and permitted an exposed burning light bulb to be shielded with combustible material in such close proximity to the bulb as to create a danger of fire;

Failed to inspect said premises and to discover the presence of the said burning electrical light bulb shielded with inflamable [sic] paper, and to ascertain whether the same was safe for the plaintiff and others invited into said premises as paying guests;

Suffered and permitted a tenant to remain in the hotel without providing him with a permanent type lamp shade when it was known by the defendant that said tenant had placed combustible material in such close proximity to an exposed electric light bulb as to create a danger of fire;

Failed to maintain and have readily available a fire extinguisher in the area of and in close proximity to the area where said burning electrical light bulb, shielded with paper, was located.

The plaintiff further claims that one or more of the foregoing was the proximate cause of his injuries.

The defendant denies that he was guilty of negligence in doing any of the things claimed by plaintiff, and denies that the plaintiff was in the exercise of ordinary care.

The defendant further denies that plaintiff was injured to the extent claimed or sustained damages to the extent claimed.

The defendant’s objection to this instruction is fivefold, in that it would lead the jury to believe that because the defendant did not provide lampshades, they could find in favor of the plaintiff; in that it would permit the jury to find in favor of plaintiff even if there was no evidence in the record to show that the defendant had noticed that the tenant had placed a shade over the bulb; in that there was no evidence that defendant failed to inspect the premises where the fire occurred; in that it told the jury that there was a duty upon defendant to provide a tenant with a permanent type lampshade for the bulb and finally, in that it charged that defendant failed to maintain and have readily available a fire extinguisher, contrary to the manifest weight of the evidence. This is IPI Instruction 20.01, modified to fit the allegations of the complaint and answer and supported by sufficient evidence to warrant such an instruction. After reviewing the evidence, we cannot see where the court committed error in the giving of this instruction, inasmuch as it concisely stated the issues of the pleadings without undue emphasis or characterization.

The court also gave the following two instructions:

Plaintiff’s Instruction No. 7.

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant:

The nature, extent and duration of the injury.

The disability and disfigurement resulting from the injury.

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.

The reasonable expense of necessary medical care, treatment and services received.

The value of salaries lost and the present cash value of the salaries reasonably certain to be lost in the future.

Whether any of these elements of damages has been proved by the evidence is for you to determine. Your verdict must be based on evidence and not upon speculation, guess or conjecture.

Plaintiff’s Instruction No. 8.

In the event that you find that plaintiff is entitled to damages arising in the future because of injuries or because of future medical expenses or because of loss of earnings you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If they are permanent in nature then in computing these damages you may consider how long the plaintiff is likely to live.

With respect to a loss of future earnings you may consider that some persons work all their lives and others do not; that a person’s earnings may remain the same or may increase or decrease in the future.

According to a table of mortality in evidence, the life expectancy of a person aged 55 years is 19 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 55 years. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of his occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

In computing the damages arising in the future because of injuries, because of the loss of future ■earnings you must not simply multiply the damages by the length of time you have found they will continue or by the number of years you have found the plaintiff is likely to live. Instead, you must determine their present cash value. “Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the damages, expenses, and earnings at the time in the future when the damage from the injury will be suffered, the expenses must be paid or the earnings would have been received.

Damages for pain and suffering, disability and disfigurement are not reduced to present cash value. Plaintiff’s Instruction No. 7 is IPI Instruction 30.01, wherein the appropriate elements have been added to apply to the instant case. Plaintiff’s Instruction No. 8 is IPI Instruction 34.04, on mortality tables as evidence of damage.

Defendant alleges that the giving of these instructions was error in that plaintiff’s left leg was amputated, from an unrelated cause, subsequent to the injuries complained of, but prior to the trial, and any disability, disfigurement or future pain and suffering were eliminated by the amputation. There was no error committed by the court in giving these instructions. The general rule is that a plaintiff can recover for the proximate results of a wrongdoer’s negligence, but not for the subsequent injuries which are the result of an independent act. 22 Am Jur2d 167, 76 ALE 1285. A plaintiff, however, in order to recover damages for permanency of an injury and future pain and suffering, even if related to the wrongdoer’s negligence, must prove that these elements of damage are reasonably certain to continue beyond the date of the trial. 22 Am Jur2d 156. Therefore, we agree with defendant that the amputation of the injured portions of the leg would eliminate any recovery for disability, disfigurement and future pain and suffering. The facts in the instant case, however, reveal that plaintiff suffered injuries to both of his hands, his right leg and to his left leg above the point of the subsequent amputation. Therefore, it was not error for the court to give these instructions, in that there was permanent injury and future pain and suffering remaining despite the subsequent amputation.

The fifth contention urged by the defense is that the jury’s answer to a special interrogatory, which found the plaintiff not guilty of contributory negligence was against the manifest weight of the evidence. We have previously discussed this in considering defendant’s second contention, in which we found that the verdict was not against the manifest weight of the evidence.

Finally defendant contends that the verdict of the jury was excessive in the light of the evidence presented. We disagree with defendant. There was testimony by Dr. Smith that plaintiff was permanently disabled. There was also testimony that plaintiff was making $2,500 to $3,200 a year prior to the fire. It is true, as defendant pointed out that there was testimony that he had not worked for four years prior to the fire. Considering the life expectancy of plaintiff, however, the jury would have been justified in awarding plaintiff a sum of over the $25,000, which he received. Furthermore, as explained above, the fact that plaintiff subsequently had his leg amputated as a result of another accident, would under the circumstances, not justify a reduction of the verdict.

For the reasons above stated, the judgment of the lower court is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


text:
    Richard H. Lee, Plaintiff-Appellant, v. Police Board of The City of Chicago, Defendant-Appellee.
    Gen. No. 50,755.
    First District, Second Division.
    June 21, 1966.

      Daniel A. Gallagher, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Assistant Corporation Counsel, and Harry H. Pollack, Special Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order entered in favor of defendant, affirming the decision of the Police Board of Chicago, discharging plaintiff from his position as a patrolman in the Chicago Police Department.

According to one James G. Righeimer, on July 21, 1962, about 11:50 p. m., he was parked in an automobile, with a woman, on Simonds Drive north of Lawrence Avenue, on Chicago’s lakefront. Simonds runs north and south and Lawrence runs east and west. A Chicago policeman came to Righeimer’s automobile and requested him to get out. Righeimer and the policeman left the automobile and went behind some shrubbery. The policeman asked Righeimer for money and Righeimer gave him $10. On the following Monday or Tuesday, Righeimer told Len O’Connor, a television commentator of N. B. C., about his experience and thereafter wrote O’Connor a letter about it. O’Connor gave said letter to the Police Deparment and said department’s Internal Investigations Division, hereinafter referred to as I. I. D., started a surveillance of policemen in the area in question.

At the trial Sergeant Joseph Nemec testified that he was the supervising sergeant assigned to the special investigation unit of I. I. D.; that on July 27, 1962, he was assigned to investigate Righeimer’s letter; that Righeimer came to Nemec’s office where he gave an oral and written statement; that Righeimer could not identify plaintiff from photographs shown him; that between July 27 and August 11, 1962, Nemec and policeman August Annerino kept under surveillance the parking area on Simonds, between Lawrence and Foster (Lawrence being 4800 North and Foster 5200 North); that on August 1st, at night, he and Annerino saw plaintiff alone in police patrol car 5494, driving on the pedestrian path and bridle path, east and adjacent to Simonds; that said patrol car had no lights; that plaintiff parked wherever there was dense growth between Simonds and whatever path said patrol car was on; that said patrol car was parked with the motor running; and that plaintiff would leave the patrol car and look into the side and rear windows of automobiles parked in the area.

Nemec also testified that on August 8th, at night, he and Annerino again saw plaintiff with patrol car 5494; that plaintiff spoke to a man in a parked automobile; that the man left the automobile and went into the bushes with plaintiff; that the man then reentered his automobile and drove away; that thereafter Nemec learned the man was a Mr. Dahlgren; and that at the time plaintiff was with Dahlgren, the motor of plaintiff’s patrol car was running, one side door thereof was open and plaintiff was about 100 feet from it with no one in the vehicle.

Nemec further testified that on August 9th he and Annerino again observed plaintiff use the same method; that on the night of August 11th, he and Annerino saw plaintiff in said area at three different times; that they stayed in their automobile; that they saw a policeman come out of the bushes near their automobile; that he walked along Simonds between the bushes and the curb, to an automobile occupied by Modesto Sosa and a woman; that Nemec and Annerino left their automobile and wrote down Sosa’s license number; that they then went to Sosa’s automobile to observe the activities of Sosa and said policeman; that Nemec told Annerino to inspect the area west of Simonds and north of Sosa’s automobile and Nemec inspected the area south thereof, for the purpose of identifying said policeman; that Nemec did not find said policeman; that Nemec then went to Sosa’s automobile and identified himself as a policeman and asked Sosa about his conversation with said policeman; that Nemec then returned to his automobile, and as he was about to enter it, saw a policeman come out of the shrubbery directly in front of his automobile; that a police patrol car was then coming south on Simonds; that said policeman looked in the direction of said patrol car, which had on its blue dome light and a white spotlight; that said policeman removed his cap and Nemec saw that it was plaintiff; that plaintiff then entered a 1959 light blue Ford station wagon; that Nemec then entered his automobile and was soon joined by Annerino; that they waited until the patrol car approached them and signaled them to leave the area, along with other automobiles parked there; that as Nemec’s automobile backed into Simonds, he took down the license number of plaintiff’s station wagon which was still parked there with plaintiff in it; that Nemec and Annerino then followed the patrol car going on Simonds; that plaintiff then drove past Nemec and stopped to the left and adjacent to the patrol car, being driven by policeman Ronald Hardt; that after a while, plaintiff left and Hardt continued his patrolling; that he and Annerino then went to Sosa’s automobile and asked him to follow them; that after they left the park, Nemec entered Sosa’s automobile, again identified himself and questioned him about his business with the policeman; that Sosa told him what happened; and that Sosa then went with Nemec and Annerino to the I. I. D. headquarters in Washington Park where Sosa retold his story and that Sosa was shown some photographs of policemen and picked out a photograph as being that of the one he gave the $10.

Nemec also testified that he conducted a police show-up on August 14th; that Righeimer identified plaintiff as the policeman to whom he had given $10; that at said showup, plaintiff was present with five other policemen; that prior to said showup, plaintiff exchanged his policeman’s cap and shirt with another policeman so that identification could not be made by the number on the cap or star; and that at said showup, the participating policemen were instructed to give fictitious answers and wrong names to questions put to them.

Nemec further testified that he had been a policeman for 15 years; that he had investigated many cases and conducted many surveillances; that when he started a surveillance of policemen in the area in question, it was not for the purpose of watching any particular policeman, but to watch all policemen in the area; that he put plaintiff’s photograph among the ones he showed to Sosa because plaintiff’s behavior with Sosa was the same behavior plaintiff previously used with Dahlgren and Righeimer; that policemen, other than plaintiff, while patrolling the area in question in a patrol car, did not leave their patrol car as plaintiff did; and that from July 27th to August 11th, the period he and Annerino had the area in question under surveillance, they observed the activities of all the policemen there but only the activities of the policeman in patrol car 5494, plaintiff’s patrol car, were peculiar.

Patrolman August J. Annerino testified that his testimony would corroborate Nemec’s testimony and, additionally, that before he entered the automobile where Nemec was sitting on the night of August llth-12th, he was sitting on a bench; that plaintiff walked past him; and that it was about 5 minutes before midnight on August 11th, that he and Nemec saw the man in the uniform of a Chicago policeman talking to Sosa.

Modesto Sosa testified that on August 11-12, 1962, around midnight, on Simonds near Lawrence, he was parked in an automobile with Olga Casillas; that he saw a policeman come out of the bushes; that plaintiff came to Sosa’s automobile and motioned for Sosa to get out of his automobile; that Sosa did so and he and plaintiff walked away from the automobile; that plaintiff told him that if he gave plaintiff $10, plaintiff would not take him in; that he gave plaintiff $10; that Sosa then returned to his automobile and after 5 minutes, a man in civilian clothing appeared and identified himself as a policeman; that said man told him to wait in his automobile until he returned; that said man was Sergeant Nemec; that when Nemec returned, Nemec told him to follow him, which Sosa did; that Nemec wanted a statement but he told Nemec he was willing to forget the $10; that Nemec took him to the I. I. D. headquarters where he gave a statement; that he was shown some photographs and picked out one which was a photograph of plaintiff; that the next day he appeared at a showup of about 12 to 14 policemen where he identified plaintiff; that when he was first asked by Nemec to sign a criminal complaint against plaintiff he refused because he did not want to go to court; that at the time he first saw plaintiff, there were lights in said area; that at said time he observed plaintiff’s face; that after he gave plaintiff $10, he walked back about 50 feet to his automobile; and that he was sure of his identification of plaintiff’s photograph.

Olga Casillas testified that at the time in question she was with Sosa; that she saw a policeman come to Sosa’s automobile; that she could not identify him; that she did not hear any of the conversation between Sosa and said policeman; that about 4 minutes after Sosa came back to his automobile after talking to said policeman, Nemec appeared and talked to Sosa.

Patrolman Ronald Hardt testified that on August 11, 1962, he relieved plaintiff; that Hardt’s tour of duty was from 11:30 p. m. on said date to 7:30 a. m. on August 12th; that he used the same patrol car that plaintiff used; that during said tour of duty, around midnight, he was in the parking area on Simonds near Lawrence and saw plaintiff there in his police uniform; that plaintiff wanted a seat cushion and newspaper from the patrol car but took only the newspaper and left the cushion for Hardt’s use; that said parking area was a part of Hardt’s beat; that he had orders to clear said area at midnight; and that he saw Nemec and Annerino there at said time but did not find out until later that they were policemen.

Plaintiff testified that he lived at 4725 N. Whipple, Chicago; that he became a Chicago policeman on July 1, 1957; that in 1958, he was accused by a motorist of soliciting a dollar; that he was suspended but acquitted of said charge; that during July 1962, he was assigned to patrol car 5494 out of Summerdale Station; that on July 21, 1962, he did not have a conversation with or solicit money from Righeimer, but he was not sure whether he had worked on said date; that he did not solicit or get money from Sosa; that on August 11, 1962, he started his tour of duty at 3:30 p. m. in patrol car 5494; that his beat was from Lawrence to Ardmore and from Broadway to the beach on Lake Michigan; that he finished his tour of duty at 11:35 p. m. the same day and turned his patrol car over to Hardt on Foster and Winchester across the street from the Summerdale Station; that after he left Hardt, he went into the station to leave his gas sheet and books; that from the station he went to Winchester near Farragut, took his station wagon and went home, which was about a mile southwest from the station; that he did not know what time he got home, but as soon as he walked into his front door, he remembered that he had left his seat cushion and newspaper in the patrol car, so he immediately got back into his station wagon and went back to the station; that when he got to the station, he saw that patrol car 5494 was not there so he proceeded down Foster towards the lakefront; that when he got to Simonds it was one minute to midnight; that he drove to the Simonds’ parking area looking for patrol car 5494 and not finding it he continued south on Simonds to Lawrence, made a U-turn and went back to the parking area and parked facing west on Simonds between Lawrence and Foster; that he remained in his station wagon for a couple of minutes; then got out and looked toward the rear of his station wagon to see if the patrol car was coming; that he then walked to the front of his station wagon, got up on the curb and looked over the bushes to see if the patrol car was coming; that he then got back into his station wagon; that at said time he did not see any policemen; that he then saw a blue mars light to the north so he got out of his station wagon to see if it was patrol car 5494, which it was; that he got back into his station wagon, backed out and got abreast and to the left of the patrol car and spoke to Hardt through the open windows of both vehicles; that at this time he was south of the midway point between Foster and Lawrence; that he asked Hardt if he wanted to use the cushion and when Hardt said he did, plaintiff drove on about 100 feet, parked and ran back to the patrol car to ask for his paper, which he got; that plaintiff then returned to his station wagon and drove towards Lawrence; that he then drove to Montrose Beach to see how the fishermen were doing and after talking to one of the fishermen, plaintiff drove back to Simonds toward Lawrence, then to Lawrence and home; that the next day, August 12th, he reported for duty at 3:30 p. m. to his station, when he and other policemen, then present, were told to stand at attention for observation; that he did not remember seeing Sosa there but he did see Nemec; that thereafter he went out to get his patrol car and was told by Lieutenant James Sheridan that he was identified in the lineup and asked to return to the station; and that from the station he went to I. I. D. headquarters in Washington Park where he gave a statement; and that on August 14, 1962, he participated in a showup at Traffic Court, 321 N. LaSalle Street.

On September 7, 1962, the Superintendent of Police filed charges against plaintiff with the Police Board. Plaintiff was charged with violation of sections 5, 8, 12, 13 and 24 of Rule 374 of the Rules and Regulations of the Chicago Police Department, being: (5) conduct unbecoming a police officer; (8) violation of law; (12) incapacity or inefficiency in the service; (13) disobedience of orders; and (14) making a false official report on July 21, August 1, 8, 9, 11 and 12, 1962. Plaintiff was also charged with soliciting and accepting $10 from James Righeimer on July 21, 1962, in return for not arresting said Righeimer; with soliciting and accepting $10 from Modesto Sosa on August 12, 1962, in return for not arresting said Sosa; with violating sections 16-10 (Extortion), 33-1-a (Bribery); and 33-3-B (Official Misconduct) of chapter 38 of the Ill Rev Stats of 1961. Plaintiff was further charged with violation of Rule 134 of the Rules and Regulations of the Chicago Police Department on August 1, 8, 9 and 11, 1962. Said rule provides for safeguarding of police vehicles by police personnel. It states: “When a radio equipped vehicle is standing idle but is in service and available for calls, at least one member of the crew shall always remain with the vehicle to receive any alarm that may be broadcast, unless urgent police business necessitates its abandonment. On one man vehicles the operator will take the vehicle off the air and lock same whenever it is necessary to leave it in order to handle police business. On his return to the vehicle he will contact the squad operator and have the vehicle put in service.” Finally plaintiff was charged with violating Rule 142 of the Rules and Regulations of the Chicago Police Department. It states: “When a police vehicle is stopped for the purpose of police business or the officer or officers have alighted to correct a motorist for a violation, the dome light of such vehicle shall remain in operation until the officer or officers have completed their duties. . . .”

A hearing was had on the foregoing charges before the Police Board on March 22, 1963, and on May 10, 1963, the Police Board rendered its Finding and Decision in which plaintiff was found guilty of violating section 5 of Rule 374, conduct unbecoming a police officer, in that on July 21, 1962, and August 12, 1962, he solicited and received $10 from James Righeimer and Modesto Sosa, respectively, in return for which plaintiff agreed not to arrest them and plaintiff was ordered discharged from the Police Department.

On June 10, 1963, plaintiff filed his complaint for administrative review of the Finding and Decision and on April 28, 1965, the trial court affirmed the Finding and Decision. This is an appeal from that order.

Plaintiff’s theory of the case is (1) that the lower court erred in not sending the case back to the Police Board for a new trial due to Police Board errors in (a) not compelling the witness, Righeimer, to disclose the identity of his female companion and in (b) failing to strike Righeimer’s entire testimony upon his failure to testify as to the identity of his female companion and (2) that the lower court, sitting in administrative review of the Chicago Police Board, erroneously considered itself powerless to evaluate the evidence before the Police Board upon the record as a whole.

In support of his first contention, plaintiff relies on DuBois v. Gibbons, 2 Ill2d 392, 118 NE2d 392 (1954). That case dealt with the power of a court to compel a witness to testify to the name of an occurrence witness. We agree with plaintiff there is no substantial difference between the refusal of a witness to be cross-examined and the failure of a court to compel a witness to state the name of his companion. We further agree that if in fact the testimony was not privileged, the lower court should have allowed the witness to testify to the name of his companion. Even though error was committed by the trial court, however, we do not feel that it was prejudicial to plaintiff. If Righeimer’s female companion was subpoenaed by plaintiff and compelled to testify, she would only have revealed that the officer, who accepted the bribe, was not plaintiff. We feel there was sufficient identification within the record, taken as a whole, to substantiate the identification of plaintiff as the officer who had taken the bribe. Both Righeimer and Sosa testified that plaintiff was the party that accepted money from them. The fact that Sosa’s female companion did not identify plaintiff can be explained by the fact that she was inside the car and did not take part in the bribery transaction.

Plaintiff’s contention that the entire testimony of a witness should be stricken, where the witness refuses to submit to cross-examination, is indeed valid. Wigmore on Evidence, 3rd ed, 2d Sec 1391. As we have described above, however, the effect of the witness’ refusal to give, and the court’s failure to compel said witness to give, the name of said witness’ female companion, had no prejudicial effect on plaintiff.

Finally, we must consider plaintiff’s contention that the lower court erred in considering itself powerless to evaluate the evidence before the Police Board upon the record as a whole. The court below stated: “In my opinion, on this case, the decision was rather a weak case against Lee, and I would have rendered a decision in Lee’s favor as was done in the Criminal Court, under the indictment.” The trial court also stated "... there was highly serious doubt as to the testimony of the Mexican, when he said he took $10.00 from him.”

It is true as defendant points out that on administrative review, the court does not weigh the evidence and its function is limited to ascertaining if the finding and decision of the administrative agency is supported by substantial evidence taken from the record as a whole. Thus, if there is competent evidence to support the findings, the decision will be affirmed. Monroe v. Civil Service Commission of Waukegan, 55 Ill App2d 354, 360, 204 NE2d 486 (1965).

At the outset, we do not feel that the remarks made by the trial judge can be construed to mean that the trial court felt itself powerless to evaluate the evidence before the Police Board upon the whole record. The fact that the trial court stated that it would have rendered a decision in Lee’s favor, as was done in the Criminal Court under the indictment, does not manifest any such construction, in that the decision in the Criminal Court required a higher degree of proof (beyond a reasonable doubt) against plaintiff than in the instant case. Furthermore, the trial court’s statement that there was serious doubt as to the testimony of the Mexican, could only manifest a feeling on the part of the trial court that it was powerless to act if in fact the testimony of Righeimer was disregarded. As stated above, Righeimer’s testimony was properly admitted and considered by the lower court.

Plaintiff questions whether there was enough evidence from the Sosa incident, standing by itself, to justify the Police Board decision. Again we feel there was sufficient evidence and that the decision of the lower court was proper. Thus, any remarks made by the trial court, stating an incorrect proposition of law, are not grounds for reversal, if in fact the right result was reached.

For the above reasons, the judgment of the lower court is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


text:
    The People of the State of Illinois, Appellee, v. Thomas Evans, Appellant.
    Gen. No. 51,037.
    First District, Second Division.
    June 21, 1966.

      Norris J. Bishton, Jr., of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment entered October 31, 1962, upon a jury verdict finding the appellant, Thomas Evans, guilty of the crime of unlawful possession of narcotic drugs. Ill Rev Stats (1961) c 38, § 21-3. The appellant claims that the People did not prove his guilt of the alleged crime.

The evidence shows that the appellant was arrested in a tavern by three policemen who where told by an informer that a man of his description possessed narcotics. The informer’s name was given only as “Herbie.” The evidence given by the two policemen who testified at the trial indicates that when the appellant and his companion saw the policemen approach them, they rose from their seats at the bar and hurried toward the men’s room. No narcotics were found on the person of either man, but the police did find two cigarette packages containing narcotics stuck with chewing gum under the front of the bar. There,was no evidence that anyone saw either man put the packages there. One policeman said that the appellant offered him a bribe if he would not arrest him. The appellant denied this.

We feel the People did not prove the appellant possessed narcotics. We are led to this conclusion by the opinion of the Supreme Court in People v. Jackson, 23 Ill2d 360, 178 NE2d 320 (1961). In that case, the appellant, Dorothy Jackson, was indicted for the crime of unlawful possession of narcotics. She had been arrested after state narcotics inspectors had obtained a search warrant. When the inspectors knocked at the door, they were met by the appellant who had in her hand a large purse. An inspector displayed his badge and told her she was under arrest. The appellant then invited him in, but as he entered the apartment, she turned and ran down the hall and locked herself in a bathroom. This bathroom had a window which opened out onto an air well. Several other apartments in this building also had windows with access to this air well. The bathroom door was broken down and a check made by the inspectors showed that the toilet had not been used, nor had the sink. The appellant’s purse was found open on the floor of the bathroom; the narcotis were found at the bottom of the air well amidst a wide assortment of debris. The other debris showed evidence of having been rained on; the package containing the narcotics bore no such traces. The appellant is said to have appeared disturbed when shown the package.

The court noted that there was no fingerprint evidence presented by the State. The opinion states that the record did not show whether an attempt was made to obtain such evidence, but that it was a fair assumption that if such evidence was sought, the search was unsuccessful. The court continued by noting that the narcotics were not found in an area under the exclusive control of the appellant. The most that could be said, according to this opinion, is that the appellant had access to the air well along with any number of other people. This, according to the Supreme Court, does not establish possession beyond a reasonable doubt.

The facts in the case at bar are sufficiently parallel to the facts in the Jackson case to compel this court to the same conclusion. In Jackson the inspectors had obtained a search warrant, a fact implying they had information from some source which gave probable cause for such a warrant to be issued; here the police received information from an unidentified informant. In Jackson the appellant acted in a manner not totally consistent with innocence in that she fled from the inspectors and locked herself in the bathroom; here the appellant and his companion, when they saw the police approach, attempted to enter the men’s room. In Jackson narcotics were found under circumstances which raised a strong inference that the appellant had possessed the contraband; the same might be said to be true here, and here, as in Jackson, no fingerprint evidence was brought in by the People.

As the Supreme Court said in Jackson, mere suspicious conduct in the vicinity of narcotics is not enough to establish the elements of criminal possession.

In this case, the narcotics were found secreted under a public bar. There is no evidence as to how long the packages had been there. Clearly, they could have been put there by anyone at any time. In Jackson the court noted that the appellant was probably guilty of the crime. It stated however that mere probabilities are not enough. The Jackson case would seem to require some clear evidence showing possession, either actual or constructive. The court in Jackson specifically distinguished that case from one where the narcotics were found in an apartment rented by the appellant. In Jackson, as here, the place the narcotics were found was easily accessible to any number of people. That being so, constructive possession cannot be shown in the appellant. The judgment is reversed.

Judgment reversed.

LYONS and BURKE, JJ., concur.


author: JUSTICE BUEKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Johnny Wright, Defendant-Appellant.
    Gen. No. 50,592.
    First District, Second Division.
    June 21, 1966.
    Jack Ring, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BUEKE.

Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    Emma Chabot, Plaintiff-Appellee, v. Timothy D. Kelly, Administrator With the Will Annexed of the Estate of George H. Shannon, Deceased, as Legatee and Devisee Under the Last Will and Testament of George H. Shannon, Deceased, Defendant-Appellant.
    Gen. No. 50,079.
    First District, Fourth Division.
    June 22, 1966.
    Rehearing denied July 18, 1966.

      David S. Minor, of Chicago (Myer H. Gladstone, of counsel), for appellant.
    Daniel A. Costigan, Carleton L. Banker and Charles M. O’Brien, of Chicago (Daniel A. Costigan, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff’s complaint sought specific performance of an alleged oral agreement entered into by her and George H. Shannon during his lifetime. She claimed that he had agreed to furnish her with board, room and clothing, and to make a will naming her as sole beneficiary, provided she advance money to him so that he could acquire a rooming house at 27 West Superior Street, Chicago, and provided also that she operate and manage the rooming house for him. She alleged performance on her part and failure on his. Defendant, who is the administrator and principal beneficiary under the will of Shannon, filed an answer denying the agreement alleged in the complaint and further alleging that plaintiff had an adequate remedy at law. The cause was referred to a special master in chancery who found and reported that plaintiff had proved her case by clear and convincing evidence. The court’s decree overruled defendant’s exceptions to the master’s report, ratified and confirmed the master’s findings of fact and conclusions of law, and directed specific performance of the contract. It vested the entire estate of Shannon in the plaintiff, directed defendant to execute all instruments necessary to effectuate that result, and ordered defendant to make a full accounting to plaintiff of his operation of the real estate and other property of the decedent. Defendant has appealed.

Such a decree as this can only be justified if it constitutes the exercise of sound judicial discretion, based upon clear and conclusive proof of the alleged oral contract. Hickey v. Hickey, 374 Ill 614, 621, 622, 30 NE 2d 423; Harper v. Kennedy, 15 Ill2d 46, 52, 153 NE2d 801. The fact that the decedent had executed a will inconsistent with plaintiff’s contention is a circumstance to be considered, but it would not deprive plaintiff of her right to enforce the alleged contract, assuming, of course, that she were otherwise able to meet the requirement of establishing its existence by clear, explicit and convincing evidence and by showing performance on her part. Chambers v. Appel, 392 Ill 294, 305, 64 NE2d 511. We must therefore examine the evidence.

TESTIMONY OF PLAINTIFF’S WITNESSES

FredN. Chabot:

He is the son of the plaintiff and first met Shannon in November 1942 at 27 West Superior Street. He stayed there a week and observed that his mother was cleaning the place and collecting money from tenants. After returning to his home in Minnesota, he came back to Chicago in April 1944. On this visit Shannon told him that he (Shannon) had a chance to buy the place at 27 West Superior Street. Shannon also told him at that time that he need not worry about his mother because she was well taken care of; that “it’s going to be left to her if anything happens to me so she won’t be stuck with anything”; and that a will had been made to take care of his mother. Mrs. Chabot was fifty-one years of age at that time. Chabot left for the service after a two-day visit on this occasion. On his next visit, in March 1948, he observed that his mother was being physically abused by Shannon and that Shannon was drinking quite heavily. Shannon again told him, however, not to worry about his mother, “the will is made out to her. She gets the whole place.” His mother and Shannon were engaged to be married all the time from 1945 until December 1947. During the period of time he was in the service and thereafter, Chabot sent his mother very little money — just on her birthdays and Christmas.

Walter A. Werner:

He is an attorney who first met Shannon in Miami in 1924. He saw him in Chicago in the latter part of 1942, at which time he was asked to draw up a will for him. Shannon said that Mrs. Chabot had been taking care of the rooming house and had advanced him $3,000, and that he wanted to protect her in case of his death. He said he wanted the will to state that she was to be his sole legatee and particularly with reference to the rooming house. The date of this will was January 22, 1944. (It is undisputed that this will was properly executed, but was superseded by a will of July 1, 1948 in which decedent left all his property to defendant Kelly.)

Sally Werner:

She was the wife of Walter A. Werner. She met Shannon at his home on Superior Street in 1944 when she and her husband were looking for an apartment. Shannon told her how well he was doing and that he had gotten a woman who had $3,000 to invest and that this woman, Mrs. Chabot, was doing all the work. He said he wanted to see that she was taken care of. On numerous occasions when she and her husband visited Shannon at the rooming house, she would observe Mrs. Chabot always cleaning and puttering around.

Mildred Beiker:

She moved into 27 West Superior Street in August 1946 and lived there four months. During this period she observed Mrs. Chabot going about her duties as housekeeper and manager of the rooming house. Mrs. Chabot would also wait on Shannon’s needs and prepare his meals.

Collis Davis:

He also was an attorney. Shannon and Mrs. Chabot came to his office in the Spring of 1946 for the purpose of engaging him to represent Shannon in a real estate deal (acquisition of title to the rooming house). Shannon told him that he felt the rooming house business was a good one and he was making money at it; that he had an understanding with Mrs. Chabot that she would do all of the housework and take care of the rooming house for him without any compensation. Shannon also said that he had had some discussion with her and he was making provisions for her in his will; that “he was going to give the whole thing to her — the rooming house, the business, upon his death.” The purchase price of the property at 27 West Superior was $7,000 or $7,500. In May or June of 1948, Shannon advised him that he had had an argument with Mrs. Chabot and that she had filed suit against him and he wanted Davis to represent him. Shannon also said, however, that he had received some money from her and he felt she was entitled to some equitable settlement. He wanted Davis to dispose of the matter amicably. On several occasions when they met thereafter, Shannon was under the influence of liquor to a considerable degree.

IdaM. Jetley:

She was in the real estate business. Shannon, accompanied by Mrs. Chabot, visited her office in the Spring of 1942 for the purpose of purchasing some property. He preferred to have Miss Jetley discuss most of the matter with Mrs. Chabot because she (Mrs. Chabot) was going to take care of it entirely for him and he depended on her for making the selection. He said that “eventually it would be Mrs. Chabot’s so she is the one who will have to be satisfied.” On another occasion, in April 1945, Shannon asked Miss Jetley, who was also a notary public, to assist in a republication of his will of January 22, 1944. On another occasion, in the Spring of 1948, Miss Jetley criticized Shannon for the way he treated Mrs. Chabot, and Shannon replied: “She is getting everything I have, I know she is going to outlive me.”

TESTIMONY OF DEFENDANT’S WITNESSES

Elizabeth DeVilbiss:

In 1942 she lived in and managed a rooming house under a lease at 27 West Superior Street. Mrs. Chabot lived with her as a roomer for about a year before Shannon purchased the rooming-house lease. The price of the lease was $700, but $400 was to be paid by giving Mrs. DeVilbiss a year’s free rent. Shannon also gave her a chattel mortgage (in evidence) to secure the unpaid balanee. Shannon further told her that Mrs. Chabot was the new housekeeper; that she was supposed to work for her room and board. Mrs. Chabot told her the same thing. On one occasion she heard Shannon and Mrs. Chabot talking loudly in his room.

Harry Miller:

In 1942 he first met Shannon, who talked to him about the rooming house, and said that he had a housekeeper who worked for room and board. Miller moved into the rooming house in 1948 shortly after Mrs. Chabot left the premises. At about this time Shannon said that if anything should happen to him the property would go to Mr. Kelly.

Hattie E. Nepper:

She was a good friend and neighbor of Shannon for several years, and he would often come to visit her. Sometimes he would talk about his housekeeper. He said that he only had to pay her room and board and she was not satisfied; that she wanted his home. When Mrs. Nepper said, “Are you going to give it to her? I wish I was single.” Shannon replied: “No, I’m going to give it to a friend, a man friend . . . Kelly.”

Patricia Sumner:

She lived in the rooming house at 27 West Superior Street from 1942 until 1947. Mrs. DeVilbiss was the landlady when she moved in. Mrs. Chabot had a bad financial situation when she first met her. Mrs. Chabot told her that she could not work in a defense plant because her eyes were bad, so she was going to be the housekeeper for her board and room. On another occasion Mrs. Chabot pointed to some clothes she had received from Shannon. In 1946 Mrs. Chabot told her that she was going to sue Shannon for wages. On several occasions she could hear Mrs. Chabot and Shannon arguing in loud voices. Shannon drank quite often.

Emma Chabot, the plaintiff (called as an adverse witness under section 60 of the Civil Practice Act):

She first became acquainted with Shannon the day he took over the lease at 27 West Superior Street. Shortly thereafter, Shannon asked her if she would work and help him pay for it, as he was going to purchase the lease to the premises. He did not have enough money to pay cash. Their understanding was that she would pay the same amount he did. She paid $350 and he paid $350 and they were “in partnership.” She never told anyone she expected to sue for wages: “It was mine as well as his so why should I sue him for wages ?”

Emma Chabot, the plaintiff (on her own behalf in rebuttal) :

When she lived at the rooming house she did all the housework that was supposed to be done, cleaning work, cooking for Shannon and collecting the rents which Shannon kept. The arrangement between her and Shannon was:

... if I would work for him that he — he did not have any money, but he would give me my room and board and the clothes that I need and he would take care of me, and if something happened to him everything would be mine, if I helped him make a home for both of us.

Asked what she had told a Mr. Smith about her arrangement with Shannon, she replied, “I told him the same as I told everybody else, that Mr. Shannon called it a partnership; if I would help him out everything was mine.” She advanced to Shannon a total of $3,600, but her records were stolen by a purse snatcher after Shannon’s death. She never told Mrs. Sumner that she had no money. She never told Mrs. Sumner that she was having difficulty getting a job because of her eyes.

OPINION

As stated in Holmes v. Ackley, 400 Ill 372, 379, 81 NE2d 178, “ [t]he granting of the equitable remedy of specific performance is a matter of sound, judicial discretion controlled by established principles of equity and exercised upon a consideration of all the facts and circumstances of the particular case.” See also Fierke v. Elgin City Banking Co., 366 Ill 66, 7 NE2d 875; and Holsz v. Stephen, 362 Ill 527, 200 NE2d 601.

In the case before us we have testimony of disinterested witnesses corroborating the evidence of plaintiff herself, and we have believable testimony concerning statements and actions of the decedent. All in all, the evidence furnishes strong proof that the alleged oral contract was actually made and was being performed by plaintiff until decedent made it impossible for her to continue. This evidence convinced the master; it convinced the chancellor; and it convinces us.

Defendant’s contention that plaintiff’s arrangement with Shannon was at most a partnership is without merit. Plaintiff’s use of the term “partnership” in her testimony was not in the legal sense, but rather to show her substantial interest in the rooming house and her expectation from Shannon’s promise. The record adequately discloses that plaintiff was induced to work without monetary reward, only because of the promise of some security in the future. Her advancement of a substantial sum of money to Shannon, and her services over a period of years, not only as housekeeper but also as manager of the rooming house were inadequately compensated by room and board. Proper compensation in such a situation is, in fact, difficult to compute. From the inception of Shannon’s acquaintance with plaintiff until May 28, 1948, the date of her departure from the rooming house, Shannon treated plaintiff not as a mere servant, but as an especially fond friend. While their relationship was often turbulent due to the latter’s addiction to alcohol, there is no evidence tending to show Shannon’s dissatisfaction with plaintiff’s performance of their arrangement prior to May 28, 1948. It was only at that time, after Shannon’s alcohol habit had rendered plaintiff’s further association with him impossible, that he executed another will in which plaintiff was not mentioned, and the property was left to Kelly. We believe the evidence shows this to have been in violation of his oral contract with plaintiff.

A further contention of defendant is that specific performance should not have been decreed because plaintiff had an adequate remedy at law. As we have indicated, we do not consider that the facts and circumstances of this case support such a conclusion. We also believe that the case of Abrams v. Schlar, 27 Ill App2d 237, 169 NE2d 583, relied on by defendant as a basis for this point, is clearly distinguishable.

Defendant also contends that plaintiff’s testimony on rebuttal (to which timely objection was made) was inadmissible under section 2 of the Evidence Act. Ill Rev Stats (1963), c 51, §2. This point is without merit, because by calling plaintiff to testify as an adverse witness, defendant waived her incompetency with respect to the matters concerning which he had examined her. She then became competent to testify on her own behalf in regard to the same “transaction.” Perkins v. Brown, 400 Ill 490, 496, 497, 81 NE2d 207.

The decree of the Superior Court of Cook County is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       She further testified:
      On my deposition I answered questions relating to a conversation with Harry Smith. I told him I was working in partnership with Shannon there.
      I testified at that deposition that I had this conversation more than once with Harry Smith and that it was because Mr. Shannon had showed him the will and told him about our affair there, and that I was helping to make a home for both of us, and help him pay bills and ordinary business of the house.


author: ALLOY, J.

text:
    Charles E. Ault, Plaintiff-Appellee, v. Karen Washburn, Defendant-Appellant.
    Gen. No. 65-93.
    Third District.
    June 22, 1966.

      Marjorie L. Schneider, of Galesburg, for appellant.
    T. Otis Brown, of Bushnell, for appellee.
   ALLOY, J.

The action in the instant case was instituted by plaintiff, Charles E. Ault, to recover damages by reason of the alleged negligence of defendant, Karen Washburn, in the operation of her automobile. The cause was tried in the Circuit Court of Warren County and resulted in a verdict for plaintiff upon which verdict judgment was entered.

On appeal in this court, defendant contends that the court should have allowed her post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial on the grounds: (1) that the verdict was against the manifest weight of the evidence; (2) that the court erred in refusing to give certain instructions tendered by defendant and to grant defendant leave to amend her answer to conform to the proof; and (3) that the court erred in failing to properly poll the jury after the verdict was returned.

The evidence in the case indicates that on November 16, 1962, at approximately 6:20 p. m., plaintiff was driving his automobile in a northerly direction on U. S. Route 67, which is a two-lane concrete paved highway 18 feet wide with a marked center line. At a point approximately 300 feet south of the point of impact, plaintiff had slowed his automobile to 10 miles per hour because a semi-trailer truck proceeding in the other direction was partially on the shoulder and was coming back on the paved portion of the highway without difficulty. Plaintiff started to accelerate moderately after he had passed the semi-trailer truck and then saw defendant’s automobile sideswipe another automobile driven by a Dorothy Long. Plaintiff then slowed his automobile as defendant’s automobile continued down the wrong side of the highway and, plaintiff, at the time of impact with defendant’s automobile, had come almost to a complete stop and was attempting to get off the paved portion to his right when struck by defendant’s automobile. Defendant was 22 'years of age and a registered nurse and had with her as a passenger another registered nurse, age 21. Defendant presented no testimony as to the occurrence and both defendant and her passenger asserted they had no memory of the accident whatsoever by reason of injuries.

The evidence indicates that defendant was proceeding south on the route and was following the semi-trailer truck; that while she was proceeding south she drove her car over the center line into the northbound lane and sideswiped an automobile being driven by Dorothy Long (who was also called as a witness in the case). The point at which the Long car was contacted, was at least 177 feet north and possibly 300 feet north of where plaintiff’s automobile was struck by defendant’s automobile. After the Long car had been sideswiped, defendant’s automobile proceeded on down the northbound lane of traffic into the portion of the northbound lane properly occupied by plaintiff’s automobile.

The semi-trailer truck referred to had been off the road at a point approximately even with the point at which the Long automobile was sideswiped and was in clear view of defendant and plaintiff. The witness Long testified that defendant’s automobile did a slight “fishtail” just before the sideswipe. The impact resulting from being sideswiped was slight and the Long automobile was controlled without any serious trouble. Defendant’s contention is that because of the condition of the road and mud on the right-hand edge of the road, she lost control of her automobile so that she could neither turn right nor brake to a stop. There was no evidence which specifically supported such contention.

It is apparent from the record that plaintiff, during all this period of time, remained in his own lane of traffic; that he was traveling at a slow speed; that he had braked almost to a complete stop at the time of impact; and that he was attempting to escape the collision by turning to his right. The collision occurred in the plaintiff’s proper lane of traffic and in the wrong lane of traffic for the defendant. It can hardly be contended under the facts that plaintiff was guilty of contributory negligence for failure to stop sooner or turn farther to the right (Williams v. Walsh, 341 Ill App 543, 95 NE2d 743).

On the question of negligence on the part of defendant, it is clear from the record that the sideswiping of the Long automobile as well as the collision with the plaintiff’s car both occurred in the wrong or left-hand lane for defendant. A jury finding that defendant was negligent under such circumstances was obviously justified. It is apparent that where evidence as to defendant’s negligence and as to plaintiff’s contributory negligence and as to the cause of the collision was conflicting, it is the proper province of the jury to determine under such circumstances which witnesses are worthy of belief and the court on appeal would not substitute its judgment for the finding of the jury on these issues (Mueth v. Jaska, 302 Ill App 289, 23 NE 2d 805). This court, therefore, would not be justified in setting aside the verdict of the jury rendered in this cause on the basis of the evidence shown in the record.

In an instruction tendered by defendant in this case, and in the motion to amend the answer to conform to the proof, a theory is advanced that the driver of the semi-trailer truck was negligent and that the negligence of such driver created a sudden and unexpected danger or emergency. No evidence is shown in the record of any such negligence, nor were the truck driver and owner made parties defendant in this cause. There was evidence that there was a misty rain and that the shoulders were muddy at the time and that the semitrailer truck went off the road to the right so that its right wheels were off the paved portion. The semitrailer truck came back onto the pavement without trouble and the Long automobile had passed the semitrailer truck and had proceeded at least 350 feet before being struck by defendant’s automobile. Under the facts, we believe the court properly refused to give such instruction on the evidence presented in this cause (Shore v. Turman, 63 Ill App2d 315, 210 NE2d 232). Another instruction which was tendered and refused, referred solely to speed as applied to the plaintiff. An instruction which was given on behalf of defendant presented to the jury the proposition that if either party’s speed contributed to the collision, such fact should be considered. It would have been improper to give the instruction applying to the speed of the plaintiff only under the evidence which had been presented. It was, therefore, apparent that there was no error in the refusal to give instructions.

On the final issue presented on appeal, defendant asserts that the court erred in failing to properly poll the jury. The record shows that at the request of defendant’s counsel, the court polled the jury by having the clerk ask each of the jurors the question “Was this and is this your verdict?” The record shows that no juror disaffirmed or dissented and the jury verdict was received and recorded and the jury was discharged. All of the jurors had signed the verdict which was brought into court and also the jurors had signed a special interrogatory submitted by defendant, finding defendant guilty of negligence. In defendant’s motion for a new trial, she sets forth that one juror stood mute when asked the question. Defendant’s attorney, at the time of the polling of such juror, did not object to the procedure of recording the verdict. An affidavit by the reporter simply states that he did not hear the audible response of one or more of the jurors as he had his back to the jury. Neither the clerk who was in the court nor the Trial Judge indicated that any juror disaffirmed or dissented from the verdict. Both defendant's attorney and the defendant were present at the time the jury was polled and no objection was raised as to the manner of the polling, the answers received, or the acceptance of the verdict and discharge of the jury. The affidavit which indicates that a juror had stood mute at the time of the polling of the jury would not justify setting aside the verdict under the facts in the record before us. We would view with grave misgivings any procedure which would permit impeachment, after discharge of a jury, by affidavit of a juror inconsistent with the acts of that juror shown of record (Smith v. Eames, 3 Scam, 4 Ill 76). The impeachment of the jury verdict on the basis of the record as presented in this cause cannot be sanctioned. The action of the Trial Court in rejecting the motion for new trial on such ground was proper and should be affirmed.

The judgment of the Circuit Court of Warren County is, therefore, affirmed.

Affirmed.

CORYN, P. J. and STOUDER, J., concur.