text:
    Arnold S. Williamsen, Plaintiff-Appellee, v. Paul F. Jernberg, Defendant-Appellant.
    Gen. No. 52,080.
    First District, First Division.
    September 16, 1968.

      Robert L. Phee, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Van Duzer, Gershon, Jordan & Petersen, of Chicago (Horace W. Jordan and Warren G. Petersen, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

In this action judgment was entered by confession in the Circuit Court on behalf of plaintiff, Arnold S. William-sen, against defendant, Paul F. Jernberg, on a judgment note in the amount of $9,070.78, which included the principal sum of $7,500, interest in the amount of $1,113.28, and $457.50 in attorney’s fees. Upon petition by defendant the judgment was vacated, and after a trial without a jury, the Court entered judgment for plaintiff, from which this appeal is taken. No questions are raised on the pleadings.

The sole issue presented before us on review is whether the consideration for the note was illegal, thereby rendering the instrument unenforceable.

We summarize the evidence. Plaintiff, a carpenter subcontractor, was employed on a construction project by C. R. Jernberg & Associates, Inc., general contractors. Pursuant to such employment, the general contractor became obligated to plaintiff in the sum of $20,205 for carpentry labor and materials supplied on the project. The defendant’s brother, C. R. Jernberg, Jr., induced plaintiff to execute a waiver of his mechanic’s lien, and was authorized by plaintiff to act as his agent in the collection of the money due him from the project owner. C. R. Jernberg, Jr. delivered the mechanic’s lien waiver to the owner of the project and collected the funds. However, instead of turning the money over to the plaintiff, he pocketed same and departed from the jurisdiction. Plaintiff then filed civil actions in the Circuit Courts of Cook and DuPage Counties against C. R. Jernberg & Associates, Inc., and effected recovery of $12,527.10, leaving a balance of $7,677.90, still owing to plaintiff. It appears from the record that Williamsen filed a sworn criminal complaint alleging fraud, deceit and larceny by bailee against Jernberg, who was subsequently extradited from California and brought to stand trial in the Criminal Court of Cook County.

On April 14,1961, the case of the People of the State of Illinois v. C. R. Jernberg, came on for preliminary hearing in the Criminal Court of Cook County. When the case was called a group composed of Williamsen, the latter’s attorney, Warren G. Petersen, Paul F. Jernberg, two creditors of C. R. Jernberg, Jr., William Torok and a Mr. Shutkus, and Robert Phee, attorney for C. R. Jernberg, Jr., stepped forward and asked the judge to “pass the case” temporarily. Thereafter, the group went out into the corridor immediately adjacent to the courtroom. During the ensuing discussion the case was called several times for trial and was held over on the call at the group’s request.

The plaintiff testified that while the group was in the corridor the defendant told him that if he would drop the civil and criminal actions against his brother, “He would sign a note to guarantee his brother paying me the amount so specified in the note.” Williamsen further testified that following this discussion the defendant signed the note in question.

William Torok testified .that during the conversation in the corridor the plaintiff agreed to drop the criminal prosecution against C. R. Jernberg, Jr., upon the defendant’s agreeing to “assure” payment of the debt owed by signing a judgment note. Torok further testified that the members of the group also discussed a plan whereby the defendant would proceed with his brother to California for the purpose of obtaining certain funds owed there to C. R. Jernberg, Jr.

The defendant testified that in response to a promise by the plaintiff to drop the criminal prosecution against his brother, he agreed to sign the note. He further testified that there was an understanding at the time of the signing that his sole obligation under the note was to go to California to make sure that certain monies there owing to his brother would be assigned to the creditors in the group; and that he hadn’t promised to guarantee his brother’s debts.

Warren G. Petersen testified that the defendant said to him, “If you will advise your client not to press his suits in the Circuit Court I will promise that I will do everything possible to get your client his money; I will sign a note and promise that I will pay it if he doesn’t.”

Robert Phee testified that the defendant agreed to sign the note in response to a promise that the criminal charges against his brother would be dropped. He further testified that after the defendant had signed the note the group walked back into the courtroom and told the judge that the matter in controversy had been compromised and they wished to withdraw the complaint; whereupon their request was granted and C. R. Jernberg, Jr. was freed for want of prosecution.

The universal rule, followed in Illinois, is that “compounding a crime being itself criminal, an agreement not to prosecute is void, not only because it is against the policy of the law, but also because the agreement is itself a crime. . . .” 17 CJS, Contracts, § 228, p 1067. Therefore, where the consideration for the execution of a note is a promise by the payee not to prosecute a party for an alleged crime, the consideration for the note is illegal and the instrument is void. Dionne v. Matzenbaugh, 49 Ill App 527. Where any part of the consideration for a contractual obligation executed to compromise civil injuries resulting from a criminal act is a promise that the prosecution for the criminal act shall be suppressed, the contract is unenforceable. Henderson v. Victor, 268 Ill App 514; Good Hope State Bank v. Kline, 303 Ill App 381, 25 NE2d 425.

In the case at bar, the evidence is contradictory as to whether part of the consideration for the execution of debts by signing the note; it is also contradictory as to whether part of the consideration for the execution of the note was a promise by plaintiff to drop the civil suits then pending against C. R. Jernberg, Jr. It is uncontradicted, however, that the note was executed outside the courtroom in which C. R. Jernberg, Jr. was about to be tried on a complaint sworn out by plaintiff; that the case was delayed on the call during the conversation that led to the signing of the note; and that the criminal action was dismissed at the request of plaintiff, among others, after the instrument had been signed by defendant. Furthermore, the testimony as to what transpired in the corridor was overwhelmingly to the effect that the prime factor in inducing defendant to sign the note was plaintiff’s promise to drop the criminal prosecution against C. R. Jernberg, Jr.

Having given, as we must, all proper weight to the testimony, and having in mind that the trial court had the advantage of observing and hearing the witnesses, we find, after a careful review of the testimony, that the manifest weight of the evidence does not support the conclusion of the trial judge. We are impelled to believe that the circumstances surrounding the execution of the note establish that the consideration for said execution was an agreement not to prosecute the criminal action then pending against defendant’s brother. On the basis of the authority previously cited, we conclude that such an agreement renders the note void and unenforceable.

We cannot agree with plaintiff that Oconto Nat. Bank v. Weber, 240 Ill App 222, “is squarely in point.” In that case one Hazier cashed a check at plaintiff bank which was drawn on another bank in which he had no funds, and he was subsequently arrested. A conference was held between representatives of the bank and the defendants, relatives of Hazier, at which time the defendants signed a judgment note made payable to the bank for the full amount owed to it by Hazier, and the latter individual conveyed to his relatives his undivided interest in certain lands. We note that the court in Oconto stated that if any part of the consideration for a contract is a promise, express or implied, to stifle a criminal prosecution, the contract is invalid. The court concluded, however, that the facts before it did not present such a situation and reversed judgment for defendants. In Oconto the evidence did not show that the bank promised to stifle the criminal prosecution against Hazier in return for the execution of a note by defendants; rather, it demonstrated a pure financial transaction whereby defendants received from Hazier an interest in certain lands, and in consideration therefore, executed a note to the bank for the amount of Hazler’s debt. In the case at bar, however, the evidence was overwhelming that the agreement by C. R. Jernberg’s creditors to drop the prosecution then pending against him was the prime factor in inducing defendant to sign the note. We conclude, therefore, that Oconto is factually inapplicable to the instant case.

For the foregoing reasons the judgment of the Circuit Court is reversed and the cause is remanded to that court with directions to enter judgment in favor of the defendant.

Reversed and remanded with directions.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lester Wright (Impleaded), Defendant-Appellant.
    Gen. No. 51,842. (Abstract of Decision.)
    First District, Second Division.
    September 17, 1968.
   Opinion by JUSTICE LYONS. Not to be published in full.


author: ALLOY, P. J.

text:
    Melvin Van Hulle and Louis R. Golembeck, Plaintiffs-Appellants, v. State Farm Mutual Automobile Insurance Company, a Corporation, Allstate Insurance Company, a Corporation, and Joseph Lax, Administrator of the Estate of Barbara Lax, Deceased, Defendants-Appellees.
    Gen. No. 68-5.
    Third District.
    September 18, 1968.
    Rehearing denied November 19,1968.
    Eagle & Eagle, of Rock Island, and T. E. Anderson, of Moline, for appellants.
    Carl H. Wilson, Bozeman, Neighbour, Patton & Henss, of Moline, and Dale Ferguson, of Rock Island, for appellees.
   ALLOY, P. J.

This action originated as a declaratory judgment action to determine whether the insurance policy which Joseph Lax had in State Farm Mutual Automobile Insurance Company was in force on January 22, 1965, when his wife, Barbara Lax, was involved in an automobile accident which caused her death.

Mrs. Lax was driving a 1959 Oldsmobile when she attempted to pass another automobile and collided with the plaintiffs head-on. As a result, Mrs. Lax was killed and plaintiffs were both injured. Joseph Lax had been insured with State Farm Mutual Automobile Insurance Company for many years. His record of payment of premiums, however, was somewhat erratic. The premium on the particular policy involved in the cause before us was due on November 21, 1964. The premium notice and a check signed by Mrs. Lax dated January 13, 1965 (nine days prior to the accident) was found in the wreckage of the automobile. Mr. Lax, upon seeing the envelope with the check payable to State Farm, asked two of his friends to take the check and notice to the State Farm agent in Moline, a George Schermerhorn. These friends did so and first talked with Mr. Schermerhorn’s secretary and she refused to accept the check. They then talked to Mr. Schermerhorn, the State Farm Mutual Automobile Insurance agent, and he told them that he knew of the accident and could not accept the check. He then told them that they could mail the check directly to the State Farm home office in Bloomington and let such company decide if they would accept the check. The check was mailed the day of the accident, January 22, 1965, along with the premium notice but with no other letter of explanation.

The day after the accident, on January 23, the State Farm Automobile Insurance Company agent, Mr. Schermerhorn, called the home office of State Farm in Bloomington and explained the situation and told the home office representatives that they would be receiving a check for the premium. Schermerhorn indicated that he had not directly or indirectly given any indication that Mr. Lax had coverage under his policy and, in fact, told Mr. Lax that he doubted if he had coverage. There was evidence of a conversation between Mr. Schermerhorn and Mr. Lax where Mr. Lax stated that he wanted his check or money back if State Farm would not accept coverage as the Oldsmobile was demolished and he didn’t need any future coverage. He stated that he told Mr. Schermerhorn that if State Farm didn’t accept his claim they should not cash his check. This was confirmed in a letter which Mr. Schermerhorn wrote to State Farm home office on February 11 in which he again reviewed the chain of events and concluded with the following paragraph :

“Since the car to be reinstated on this policy has been demolished beyond repair, if there is to be no coverage, then Insured’s $48.30 remittance should be returned to him with a letter of explanation that there will be no coverage & why. I feel a letter from the Company in this case would be advisable. Please give me your thoughts on this & advise me if you desire further information.
/s/ Geo. Schermerhorn”

About February 15, 1965, State Farm cashed the check which Mrs. Lax had made out before her death and that check cleared the Lax account on February 17, 1965. On February 18, State Farm mailed Mr. Lax a refund check which was dated February 15, 1965, for $48.30, being the same amount as the check signed by Mrs. Lax. This letter explained that the Lax policy could not be reinstated to cover the accident. Lax refused to cash such refund check.

The two occupants of the automobile which was struck by the car being driven by Mrs. Lax brought the declaratory judgment action seeking to have the State Farm policy declared to be in force with liability limits of $30,000 per person and $60,000 per accident. Without this policy they would be limited to a total of $10,000 of uninsured motorist’s coverage. The trial judge found that the State Farm policy was not in force at the time of the accident. Joseph Lax has also appealed in this cause contending that the State Farm policy was in force and he sought $5,000 in death benefits under the State Farm policy.

It was disclosed in the record that State Farm sent a premium notice to Lax 30 days prior to November 21, 1964, and another notice was sent to him three days after November 21, 1964, informing him that if he paid the premium within 10 days of when it was due he would have continuous coverage. 23 days after November 21, 1964, State Farm sent a notice to Lax advising that his insurance had expired since the premium was not received, and “you may reinstate your insurance for six months by sending us a remittance for the amount due. Please return this form with your payment.” There was also evidence in the record presented by State Farm as to how late premium payments were handled. It was shown that if they came within 10 days, there was no lapse in coverage. If the premium payments came in after 10 and before 23 days, the policy went in force on the date payment was received and a refund was made to the policyholder for the days during which he had no coverage. If payment came in after 23 days, but before 39 days, a new policy was issued with the coverage beginning the day the premium was received. If a premium was received after 39 days, a new application had to be completed.

Payment record of Joseph Lax to State Farm over the past years showed that Lax nearly always paid late. In 1962 he paid 44 days late and a new application was taken and his new policy did not begin until 44 days after the premium was due on the former policy. In 1963, Lax was 12 days late and refund was made to him for the 12 days in which he did not have coverage because he failed to pay within the 10 days after the premium was due. When his policy became due on April 13, 1964, he failed to pay until May 21, 1964 (38 days late), a new policy was written beginning May 21, 1964, so that Mr. Lax was advised that he did not have coverage between April 13, 1964, and May 21, 1964. In the instant case the premium which was in dispute was due November 21, 1964, and was not paid prior to the accident on January 22, 1965, which was a total of 62 days after the due date. As we have indicated, the trial judge concluded that the State Farm policy was not in force at the time of the accident on January 22,1965.

We are confronted with an unusual case in many respects. No exact precedent has been directed to our attention nor have we been able to discover one which deals with the situation involving a tender of a premium to a company for the purpose of affording coverage where such insurance company has knowledge of the accident and loss and where the tender is made for the purpose of obtaining coverage for such loss. The closest precedent seems to be the case of Perry v. Campbell, 45 Ill App2d 271,195 NE2d 844.

In Perry v. Campbell, supra, an auto insurance premium was due September 21, 1958, and on November 16, 1958, the insured had an accident. The premium was paid to the company on November 22, 1958, and the company, with knowledge by its local agent only of the accident, cashed the check, but later attempted a refund in cancellation of the policy. The insured in that case called his agent on November 21, 1958, and told him of the accident and that he hadn’t paid the premium. The insured testified that the agent said, “Send the premium in and we’ll take care of your accident.” The court in the Perry v. Campbell case specifically stated that the payment, at the instruction of Allstate’s agent, though subsequent to the accident, is the very payment called for in the extension certificate in that form of policy (annual extensions) and, therefore, the period of insurance coverage was in fact extended from September 21, 1958, to September 21, 1959. While there was no evidence of a provision for lapse of coverage during the period of default, the court in Perry v. Campbell, supra, apparently relied solely upon the acceptance of the late premium by the insurer coupled with knowledge only of the local agent of the company.

It is apparent that if the premium in the instant case had simply been sent into the company and cashed by the company without knowledge of the accident, there would be no coverage under the policy. Forfeiture of an insurance policy for nonpayment of premium, however, may be waived after a loss by acceptance of the past-due premium with the notice of the loss, particularly if the premium is tendered with the understanding that acceptance thereof would operate as a continuation of coverage during the period when the accident occurred (Perry v. Campbell, 45 Ill App2d 271, 275, 195 NE2d 844).

We particularly note that the check which was written for the premium was discovered among the personal effects in the automobile on the day of the collision and was taken immediately by friends of Joseph Lax to the State Farm local agent. Both the agent and the secretary knew of the collision and refused to accept the check but at the agent’s suggestion it was mailed to the home office of State Farm. The following day Joseph Lax came in and reported the collision to the agent and, also, on that day the agent called the State Farm claim office and advised the claim adjuster of the accident and of the tender of the check. Joseph Lax in a further conversation with the local agent of State Farm, stated that he felt that State Farm should afford coverage because he had carried all of his insurance with State Farm for over 15 years, and that if State Farm was not going to afford coverage, Lax wanted his money back because the Oldsmobile had been demolished. The local agent followed the matter up with a written memorandum to State Farm on February 11, detailing facts of the collision and the tender of the check as well as Joseph Lax’ request that State Farm afford coverage. The local agent concluded the written memorandum by advising the home office, as we have indicated in this opinion, that since the car had been demolished beyond repair, reinstatement would be futile, and if there was to be no coverage, then the remittance of $48.30 should be returned to Lax with a letter of explanation. Instead of returning the remittance with a letter of explanation, State Farm cashed the check after apparently holding the check for approximately three weeks. On the record, this was done with full knowledge of the collision and of the fact that the check had been tendered for the express purpose of obtaining coverage with respect to the collision. We are also impressed by the fact that the local agent had advised the State Farm home office that he had stated that he thought there would be no coverage, but that it would be up to State Farm to determine whether coverage should be afforded, in view of the fact that Joseph Lax and members of his family had insurance with State Farm for a number of years.

The procedural arrangements which ordinarily would be made with reference to the late payment of a premium obviously would not be applicable to a situation such as we have before us where there had been an accident and the subject matter of the policy, the Oldsmobile, had been demolished, where there was full knowledge of the accident by State Farm and its agent, and where the premium was tendered for the express purpose of securing coverage for the collision. With full knowledge of the accident and the purpose of the tender, State Farm cashed the check. It can hardly be contended that acceptance of the premium was to afford future coverage, since State Farm had been advised that the Oldsmobile had been destroyed, and there was nothing left to insure. It is analogous to acceptance of a past-due premium on a life insurance policy which obviously would not afford future coverage when the subject matter of the policy, the insured, has died.

Both parties to the litigation emphasize the social consequences of a decision for or against the insured and the insurance company. We are also conscious of the fact that the courts of this State have always adopted a uniformly liberal construction in favor of affording coverage under an insurance policy wherever the facts justify such coverage. Under the facts in the record, it is apparent that the check was tendered conditionally and for the purpose of affording coverage for the accident. We, therefore, see no justifiable distinction in principle in this case from the case of Perry v. Campbell, supra.

On the basis of the record in this cause, it is apparent that State Farm accepted the past-due premium with full knowledge of an intervening loss and ostensibly for the purpose of providing coverage therefor. We must, therefore, conclude that there was coverage under the terms of the policy by virtue of the acceptance of the premium with knowledge of the purpose of tender.

The judgment of the Circuit Court of Rock Island County will, therefore, be reversed and this cause is remanded to such court with directions to vacate such previous judgment and enter judgment in this cause in favor of the Plaintiffs-Appellants and Appellee Joseph Lax in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

STOUDER and CULBERTSON, JJ., concur.


author: STOUDER, J.

text:
    Leiter Electric Company, a Corporation, Plaintiff-Appellant, v. Bituminous Casualty Corporation, Defendant-Appellee.
    Gen. No. 68-6.
    Third District.
    September 19, 1968.
    Rehearing denied November 19,1968.
    Leiter, Newlin, Fraser, Parkhurst & McCord, of Peoria, for appellant.
    McConnell, Kennedy, McConnell & Morris, of Peoria, for appellee.
   STOUDER, J.

Plaintiff insured, Leiter Electric Company, brought this action in the Circuit Court of Peoria County against Bituminous Casualty Corporation, Defendant Insurer, based on a contractor’s liability policy issued by defendant. The trial court sitting without a jury held the loss was not covered by the policy and plaintiff has appealed from the judgment in favor of defendant.

The facts are undisputed. Plaintiff was employed as a subcontractor to install certain machinery in the Caterpillar Tractor Plant. As a part of such installation the plaintiff was required to ground the electrical system by attaching copper wire to a large diameter water pipe system which was then being constructed around the perimeter of the building ten feet below the surface of the ground. Another subcontractor excavated the trench, laid and connected the pipe and then refilled the trench. Plaintiff’s men were working in the trench approximately two pipe lengths behind the pipe crew and after the pipe had been laid and connected plaintiff’s men attached the copper wire to the pipe by means of brazed connections. In the process the wire and pipe were heated with an acetylene torch using rods and flux. After the connections were made, the pipe crew working behind plaintiff’s men filled in the excavation. After eight of such connections had been made and a part of the trench filled in over such connections it was discovered that the pipe had cracked at the point of each of such connections and the pipe subcontractor was required to replace such pipe at a cost of $2,555.94. Plaintiff was of the opinion that its brazing was the cause of the damage and accordingly paid the subcontractor the cost of replacement thereof. Claim was made by plaintiff against defendant for such amount which claim defendant refused to pay and this action resulted.

The insuring agreement admittedly in effect at the time of the loss, obligated the defendant insurer “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.” The policy also provided that it did not apply “. . . to injury to or destruction of . . . property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, . . . .”

No questions are raised concerning the loss, the insured’s responsibility therefore, the amount of damages or the applicability of the insuring agreement in the absence of the exclusionary provision. The sole question presented on this appeal is whether the loss based on the undisputed facts is within the exclusionary provision of the policy. The trial court concluded that the loss was within the exclusion.

Both parties have referred to the familiar rules concerning the application of insurance policy provisions. They need not be restated.

The exclusionary provision under consideration is not uncommon and we have been referred to many cases (only one from Illinois, Maryland Cas. Co. v. Holmsgaard, 10 Ill App2d 1, 133 NE2d 910) in which a similar or identical provision has been considered with respect to a variety of factual situations. See 62 ALR2d 1242 for a collection of cases considering such exclusionary provision.

In reviewing the cases relied upon by the parties it appears that the courts have recognized that the application of the exclusionary provision is not completely harmonious. Black’s Law Dictionary, 461, 4th ed 1957, defines “custody” as “The immediate charge and control and not the final and absolute control of ownership implying responsibility for the protection and preservation of the thing in custody.” In 12 Couch Insurance, 2nd ed 1964, it is stated in section 44:426 that “The great majority of cases support the view that the exception clause relating to property in the care, custody or control of the insured refers to possessory handling of the property as distinguished from proprietary control.” The courts have consistently held that such exclusion is applicable where the possessory interest between the insured and the property damaged is based on some legally recognized relationship thereto such as bailment. In Maryland Cas. Co. v. Holmsgaard, 10 Ill App2d 1, 133 NE2d 910, the only Illinois case involving a similar or identical exclusionary provision, the court held the loss excluded where it appeared that the owner of an automobile had left the automobile with a welding shop operator for the purpose of having a trailer hitch welded on the bumper, the automobile being destroyed by fire caused by the welding. Although the courts have had no difficulty in holding the loss excluded where a bailment existed, both the Maryland Casualty case as well as most cases where the matter has been discussed, do not limit the exclusionary provision to those cases where such legal relationship exists. In P & M Stone Co. v. Hartford Accident & Indemnity Co., 251 Iowa 243, 100 NW2d 28 (1959), (involving loss to a bulldozer) and Christ v. Potomac Ins. Co., 413 P2d 407 (1966), (involving damage to a mobile shovel loader) relied upon by defendant, the court held the loss excluded where it appeared that such equipment was being operated by an employee of the insured without the consent of either the insured or the owner of the property.

From the foregoing references and cases as well as other cases relied upon by defendant it may be seen that where the property damaged is chattel in nature i. e., movable or capable of being handled, the care, custody or control by the insured which may be found to exist, depends in large measure upon the nature of possession of which such property is susceptible. To be sure this does not mean that the exclusionary provision is limited to chattel property but it does reveal that our concepts of possession of chattel property and hence care, custody or control thereof are not readily applicable where the property damaged is in the nature of real property. This is particularly true where the property damaged is more or less firmly and permanently attached to the real estate. Under such circumstances the insured may be deemed to have temporary or incidental access to the property or limited possession of an area of the property rather than care, custody or control of the property itself.

In the following cases the courts have applied the “temporary access” or “limited possession” doctrines and have held that the damaged property was not within the care, custody or control of the insured. In Klapper v. Hanover Ins. Co., 39 Misc2d 215, 240 NYS2d 284, windows were so badly scratched by the insured, a window washing contractor, that they had to be replaced. In Boston Ins. Co. v. Gable, 352 F2d 368, the insured, a painting contractor, gouged and burned the exterior of a house which he had been employed to prepare and paint. In Boswell v. Travelers Indemnity Co., 38 NJ Super 599, 120 A2d 250, damage to two ten-ton heat exchange units resulted from the testing thereof after the insured had replaced and repaired the tubes. In Gibson v. Glen Falls Ins. Co., 241 SC 293, 128 SE2d 157 (1962), the foundations and floor of a swimming pool were damaged by hydrostatic pressure resulting from the drainage of the water from the pool in order that the insured’s employees could clean the inside of the pool with muriatic acid. We believe that the reasoning in the foregoing cases is applicable to the facts of this case and requires the conclusion that the plaintiff did not have care, custody or control of the damaged water main. In our view of this case the plaintiff had temporary access to and limited possession of an area of the water main but not care, custody or control of such main the same remaining with the pipe crew which excavated the trench, laid and connected the pipe.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is reversed.

Judgment reversed.

ALLOY, P. J. and SCHEINEMAN, J., concur.


author: HOFFMAN, J.

text:
    Jessie B. Osborne, Plaintiff-Appellant, v. Edward J. Leonard, Defendant-Appellee.
    Gen. No. M-51,513.
    First Judicial District.
    September 19, 1968.

      Franz and Franz, and Perry L. Weed, of Crystal Lake (Perry L. Weed, of counsel), and Isadore M. Bernstein, of Chicago, for appellant.
    Garbutt & Jacobson, of Chicago (Thomas J. Lee, of counsel), for appellee.
   HOFFMAN, J.

This is an appeal by the plaintiff from a verdict in defendant’s favor in a suit for personal injuries arising out of an automobile accident. At the close of all the evidence the trial court directed a verdict for plaintiff on the issue of liability. The plaintiff asks that we grant a new trial solely on the issue of damages. There is no cross-appeal.

The plaintiff states that the verdict completely disregards proper elements of damages which she claims were clearly established by the evidence. Plaintiff argues that this resulted from the defendant’s attorney’s prejudicial and improper conduct, which was so inflammatory and unprofessional as to deny her a fair trial.

The plaintiff contends that the jury was prejudicially influenced by collateral, irrelevant and improper matters injected into the trial by defense counsel. She argues that the defense misused the voir dire examination, injected prejudicial error into the opening statement, persisted in efforts to introduce inadmissible testimony and documents into the trial, and made erroneous, inflammatory and prejudicial statements in the closing argument. It is the plaintiff’s position that defense counsel’s pattern of misconduct ran throughout the case, and despite plaintiff’s many objections (of which she made 64 in the two-day trial) which were repeatedly sustained (54 times) and the conscientious efforts of the trial judge, who admonished defense counsel more than ten times to discontinue his objectionable tactics, the Court could not prevent the prejudicial effect of counsel’s misconduct. The plaintiff urges that even though the Court ultimately directed a verdict in favor of plaintiff on the issue of liability, the prejudicial persuasion and innuendoes relative to the facts surrounding liability during every phase of the trial prior to the direction of the verdict, is so interwoven with the issue of damages and the credibility of the plaintiff and her witnesses as to prevent any cure by the subsequent direction, and that the result was such a deterioration of the judicial process as to require a new trial in the interest of justice. We shall look at the record to review these charges.

Regarding the voir dire examination: Defense counsel persistently and relentlessly referred to specific items of evidence and interrogated upon the law of the case. On the first prospective juror alone, plaintiff’s attorney objected seven times to such procedure. Each of these objections was sustained and the Court, on these occasions, admonished defense counsel to discontinue such type of examination. To some jurors defense counsel repeatedly posed specific factual questions (not in any way related to the facts in the case) regarding supposed accidents and injuries. To others he posed remarks concerning injury at the time of the accident, or interrogated through argumentative questions regarding fault, unavoidable accidents, and degree of injury. Despite repeated objections and the Court’s admonitions, defense counsel continued such questioning with other prospective jurors. At times he insinuated that plaintiff was uncommonly litigious, made unjustified demands and was a malingerer, and he frequently suggested that plaintiff’s counsel was attempting to hide facts and issues through his objections.

The opening statement: During the opening statement defense counsel said: “The police came and investigated the accident. All the people went to the police station for further questioning. The policeman gave no tickets whatsoever.” Plaintiff’s attorney moved immediately for a mistrial, but it was denied. The Court saying (in chambers), “I think it is improper to make that statement, but I don’t think anything would please defense counsel any more than to have a mis-t'rial.”

The presentation of the evidence: During the questioning of defendant’s medical witness, a doctor who had treated plaintiff, defense counsel asked the witness if he felt he would be subject to a lawsuit by accusing a patient (the plaintiff) of a falsehood. On many occasions with this witness, despite repeated objections and seven warnings from the Court, counsel asked leading and suggestive questions upon crucial issues in the case. Throughout the presentation of the case, defense counsel persistently referred to inadmissible evidence and made it appear that plaintiff, by his objections, was responsible for keeping the facts from the jury.

Defendant’s closing argument: Defense counsel veered from the facts on many occasions and made numerous inflammatory statements. He suggested that a difference between the two parties’ testimony meant that one was a liar and perjurer, and stated, “I don’t believe that they have proven the defendant or her son to be liars and perjurers.” He persisted in such tactics with other witnesses, implying that the jury must be convinced that the defense witnesses were lying or perjuring themselves for the plaintiff to win. Throughout the entire argument there are misleading statements, suggestions of improper conduct not supported by the evidence, inflammatory innuendoes and appeals to sympathy.

The defendant answers plaintiff’s contentions by arguing: (1) that the post-trial motion did not specifically and with particularity present defense objections above set forth and, thus, they are waived; (2) that the plaintiff did not preserve the errors by making timely trial objections; and that (3) the errors were not prejudicial because the issue of liability was not presented to the jury.

We have read plaintiff’s post-trial motion and we find that it indicates the grounds upon which plaintiff relies with sufficient particularity to afford the trial court identity of the error relied upon. It has been held that a post-trial motion need not specify errors in detail to qualify under section 68.1 of the Practice Act. Tabor v. Tazewell Service Co., 18 Ill App2d 593, 153 NE2d 98; Pajak v. Mamsch, 338 Ill App 337, 87 NE2d 147.

Regarding defendant’s second point, we have referred to the record and we find that plaintiff made numerous timely objections to defendant’s activities. Even so, our Supreme Court on numerous occasions has held that where improper evidence is being presented or an argument becomes so prejudiced and unwarranted as to prevent fairness in the trial or brings deterioration upon the judicial process, it becomes the duty of the trial court to correct such activities, whether there is an objection or not. Sommese v. Maling Bros, Inc., 36 Ill2d 263, 222 NE2d 468; City of Chicago v. Pridmore, 12 Ill2d 447,147 NE2d 54.

Defendant’s last argument points up the entire problem here. It emphasizes the pattern of misconduct running through the entire case. That there were repeated instances of reversible error, or grounds for mistrial, go without saying. The examination of the jury by defense counsel was an exercise in indoctrination of individual jurors with preeducation as its sole purpose. This was clearly a violation of Supreme Court Rule 234. Christian v. New York Cent. R. R., 28 Ill App2d 57, 170 NE2d 183. The introduction into defendant’s opening statement of the fact that the police investigating officer issued no ticket, inferred that defendant was free of guilt. This was most damaging to plaintiff and clear error. Allen v. Yancy, 57 Ill App2d 50, 206 NE2d 452; Giles v. Keunnen, 50 Ill App2d 389, 200 NE2d 143. The continued effort of defense counsel to introduce immaterial evidence which required plaintiff to make innumerable objections, has been held, on many occasions, to be error, because it creates in the juror’s mind an impression that an objecting party is attempting to conceal evidence. Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 26, 57 NE2d 216; Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 403, 209 NE2d 868; Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 43, 176 NE2d 551. Defendant’s final argument clearly exceeded all bounds. On many occasions it has been held that an attorney, in his final argument, is permitted only to make reasonable comments upon the evidence. Walsh v. Chicago Rys. Co., 303 Ill 339, 135 NE 709; Reinmueller v. Chicago Motor Coach Co., 341 Ill App 178, 93 NE2d 120. When, however, arguments become unreasonable and highly prejudicial in character the rule does not apply, and an indulgence in misleading statements, improper innuendoes and inflammatory remarks requires reversal. Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 209 NE2d 868. Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476; Ryan v. Monson, 33 Ill App2d 406, 179 NE2d 449; Vujovich v. Chicago Transit Authority, 6 Ill App2d 115,126 NE2d 731.

In our opinion the trial of this case was conducted by defense counsel in such a manner as to create a climate in the courtroom and conditions in the individual jurors’ minds which made a fair trial for plaintiff a positive impossibility. The taking of the issue of liability from the jury did not remove this circumstance from the individual jurors’ minds, for the persuasions, misstatements, improper emphasis and false arguments and innuendoes were so interwoven with the issue of damages as to prevent a fair trial.

It is the province and duty of the courts to see that every litigant has a fair trial. In the instant case we believe that plaintiff was denied this right. Accordingly, the judgment appealed from is reversed, and, because the defendant took no cross-appeal, the cause is remanded for a new trial on the issue of damages only.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Paul Manns and Theo Smith, Plaintiffs-Appellees, v. Max E. Stein, et al., Defendants-Appellants.
    Gen. No. 51,763.
    First District, Third Division.
    September 19, 1968.
    Rehearing denied November 15,1968.

      Richard D. Cronin, Rago & Kiely, of Chicago (Joseph B. Lederleitner, of counsel), for appellants.
    Robert J. Rafferty, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiffs brought suit to recover for personal injuries sustained when a porch on which they were standing collapsed. The jury returned a verdict in favor of the plaintiff Manns for $15,000 and a verdict in favor of plaintiff Smith for $1,500. Judgment was entered thereon and the defendants appeal. They make only two points in their Points and Authorities: (1) that the court erred in refusing an instruction which defined the lessors’ responsibility for latent defects on the premises, and (2) that the verdicts were against the manifest weight of the evidence. The facts follow.

On June 30, 1961, the plaintiffs were engaged in moving furniture into the second floor apartment of one Irene Grandberry at 4525 Lake Park Avenue in Chicago. They carried the furniture up the rear stairs of the building and into the apartment in question. They testified that the stairs appeared to be sound and that they did not shake or sway. At about 9:30 p. m., plaintiffs Manns and Smith and two helpers were moving the last piece of furniture, a chifforobe or wardrobe weighing about 150 pounds. When they reached the kitchen door and were preparing to enter, they heard a cracking or popping noise underneath them. The porch collapsed and they were thrown to the ground some twenty feet below. Witnesses testified that the stairways had fallen, the landing was caved in and the porch supports had broken loose.

Edward Dew, who had contracted for purchase of the apartment building, testified that he examined the porch following the accident and found that a supporting beam and two or three bricks had pulled away from the wall. He also examined the beam and found it had begun to deteriorate at the point where it fitted into the wall. Theo Smith, one of the plaintiffs, testified that he examined the fallen stairs after the accident and found that the timbers were rotten and the nails rusted “almost half in two.” Smith also testified that the brickwork was crumbling where the porch timbers joined the building wall.

Defendants are the legal owners of the property. None of them were present at the trial. Interrogatories had been propounded to them prior to the trial however and answers thereto were read to the jury. Defendants Max E. Stein, Rosaline Stein, Charles G. Reimann and Lorraine Reimann were asked:

“Did anyone of the defendants at any time prior to June 30, 1961, make a physical inspection of the rear porch or stairway leading to the second floor apartment . . . ?”

The answer of each was “Unknown.” The same interrogatory was propounded to the defendant Irving Ginsburg and his answer was “Yes.” He was then asked by a supplemental interrogatory to state, if his answer to that question was in the affirmative, which defendant or defendants made the inspection. To that question his answer was “Unknown.”

The first point in defendants’ brief is that the court erred in refusing an instruction tendered regarding latent defects. It reads as follows:

“If a landlord either knows about an existing defect on the premises which is not readily apparent, or knows of facts and circumstances which would indicate that there is such a defect, then he must tell his tenant about it before the tenant moves in or at the time of the letting. However, a landlord need not warn his tenant about a defect which the tenant could have discovered by a reasonable inspection.”

Plaintiffs point out that the defendants’ post trial motion failed to specifically charge error with respect to the ruling on that instruction and accordingly the error was waived.

The Civil Practice Act provides that post trial motions in jury cases must specify with particularity the grounds on which the moving party relies for relief. Ill Rev Stats, c 110, § 68.1(2) (1967). The points must be defined in detail and clearly stated and if the motion fails to meet those standards, the error is waived and may not be asserted on appeal. Perez v. Baltimore & O. R. Co., 24 Ill App2d 204,164 NE2d 209.

Defendants set forth eight points in their post trial motion, and the only charge of error with respect to the jury instructions reads as follows:

“The Court erred in refusing certain instructions of the defendants, especially certain instructions dealing with the status of the plaintiffs.”

Defendants’ Instruction No. 1 does not pertain to the status of the plaintiffs, and the nature of the defendants’ charge of error is therefore not clear. It appears from the motion for new trial that defendants were referring either to a tendered instruction which described plaintiffs as licensees or to another instruction which defined a landlord’s obligations toward licensees. The nature of defendants’ objection to the instructions was not set forth with the particularity required by section 68.1 (2) of the Civil Practice Act and therefore the point has not been preserved for review. Moreover, the evidence adduced at the trial did not provide a basis for instructing the jury with respect to latent defects.

The general rule is that a tenant takes leased premises as he finds them and that a landlord is not responsible for defects in premises at the time of letting, but where only a portion of a building is rented and the landlord retains control of other portions such as stairways, passageways or cellarways, or where he rents to several tenants, he has the duty of exercising reasonable care to keep the premises in a reasonably safe condition and if he neglects to do so, he is liable for injury proximately resulting to persons lawfully on the premises. Murphy v. Illinois State Trust Co., 375 Ill 310, 31 NE2d 305; Shoninger Co. v. Mann, 219 Ill 242, 76 NE 354; Ciskoski v. Michalsen, 19 Ill App2d 327, 152 NE2d 479.

The evidence in the instant case is that bricks were crumbling where the porch timbers fitted into the outside wall of the building. Clearly, the outer shell of the building was not leased to any particular tenant and it was the duty of the landlord to exercise reasonable care in the maintenance thereof. Moreover, the stairs in question provided access to at least four apartments, two on the first floor and two on the second. Entry to the rear of those apartments could be had only by use of common stairs and landings and accordingly the landlord was responsible for their maintenance. Witnesses both for plaintiffs and defendants testified to observing signs of deterioration in the porch and stairway members. Beams were rotten at the point where they joined the wall. There was no evidence that the owners of the building had made an inspection of the property. No basis was established for the giving of the instruction referred to. It is not error to refuse an instruction containing a mere abstract proposition. Carson, Pirie, Scott & Co. v. Chicago Rys. Co., 309 Ill 346,141 NE2d 172.

As to the second point, that the verdicts were against the manifest weight of the evidence, the evidence before referred to was sufficient to support the finding of the jury.

The judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


text:
    Betsy Grimm and Rosemarie Grimmenga, Plaintiffs-Appellants, v. Pete F. Carallis, Defendant-Appellee.
    Gen. No. 52,123.
    First District, Third Division.
    September 19, 1968.
    Rehearing denied October 24,1968.
    Morton A. Resnick, of Chicago, for appellants.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard and George S. Miller, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an action to recover damages for personal injuries sustained by the plaintiffs when the defendant backed his automobile into the left front fender of their automobile. The complaint was filed on behalf of Arthur Grimm, Betsy his wife, their two minor children Rosemarie and Linda, and Rosemarie Grimmenga, his mother. The court dismissed the suit as to the two children and no appeal has been taken from that order. Arthur Grimm took a nonsuit at the close of all the evidence. The jury returned a verdict of not guilty as to the remaining complainants, Betsy Grimm and Rosemarie Grimmenga. Judgment was entered on the verdict and they appeal. The facts follow.

On June 25, 1961, at approximately 5:00 p. m., Betsy Grimm was driving the family car east in the right-hand lane of 31st Street in La Grange Park, Illinois. Her husband Arthur was seated in the front and Rosemarie Grimmenga was in the back seat with the two children. Mrs. Grimm stopped her car behind another car for a red traffic signal at La Grange Road. The light then changed to green and she followed the car ahead of her into the intersection. The defendant, who was traveling north on La Grange Road, had entered the intersection while Mrs. Grimm was waiting for the traffic signal to change, but he was unable to travel completely across the intersection because of congested traffic ahead of him. In an attempt to get into the other lane of traffic, the defendant backed his car a few feet and struck the left front fender of plaintiffs’ vehicle which had come to a stop about halfway through the intersection.

Immediately after the impact Arthur Grimm alighted from the car. He testified that he observed the defendant pull across the intersection, stop at the northeast corner, get out of his car and then get back in and drive away. He remembered the defendant’s state license number and gave it to the police when they arrived at the scene of the accident. The following morning the police called the defendant and told him they thought he had been involved in an automobile accident. The defendant examined his car and found that the left taillight was broken and that there were chips of paint on the broken taillight and bumper.

Defendant did not deny that the accident had occurred, but he did deny being aware of striking the Grimm car when he backed up. He testified that he stopped in the intersection; that when the car ahead backed up, he also backed up and that he pulled around the car ahead of him and proceeded north in the inner lane of La Grange Road. He said he had some ear difficulty which impaired his hearing and that there was much noise and confusion at the intersection. His attorney admitted in closing argument that the defendant backed into plaintiffs’ car and argued to the jury that he was nevertheless not negligent.

Plaintiffs contend that the evidence presented was consistent only with a finding of liability and that the jury’s verdict of not guilty was contrary to the manifest weight of the evidence. They contend that the court erred in not granting their motion for a new trial. Defendant contends that because he entered the intersection first, he had the right-of-way; that it was proper for him to move his car back a few feet in order to move into the inner lane of traffic and that the plaintiff Betsy Grimm was herself negligent in not keeping a proper lookout. He further contends that the jury’s verdict was supported by the evidence.

It is undisputed that each vehicle had entered the intersection when the light facing its lane was green and that each was acting properly while stopped in the congested intersection. It is clear however that the defendant ceased acting as a reasonably prudent man when, apparently without looking, he backed into plaintiffs’ automobile. When a driver of an automobile undertakes to drive backward, due care requires that he ascertain what is behind him and avoid a collision with any person or car properly there. There is no evidence of any lack of care on the part of the plaintiffs. Pierson v. Lyon & Healy, 150 Ill App 116. The jury’s verdict finding the defendant not guilty is contrary to the manifest weight of the evidence and in such case we have no other choice but to reverse the judgment of the trial court. Zide v. Jewel Tea Co., 39 Ill App2d 217, 188 NE2d 383; Ferno v. Brown, 14 Ill App2d 507,145 NE2d 91.

The remaining points raised on this appeal are rendered moot by our finding that the verdict was contrary to the manifest weight of the evidence, but we will comment on defendant’s contention that the jury was properly allowed to take into consideration the excessive claims made by the plaintiffs as affecting their credibility. It has become common practice in personal injury suits to exaggerate the extent of injuries and to pray for damages grossly in excess of any that might reasonably have been incurred. The fact that the practice is common does not however make it proper. Such statements when controverted by the evidence may be considered by the jury as affecting the plaintiff’s credibility.

Rosemarie Grimmenga claimed $10,000. She testified that she injured her leg but was able to go to work the day after the accident. Dr. Richard Fried testified that he treated her with diathermy for a contusion on her left leg; that there was no permanency involved in the injury and that he charged her $140 for his services.

Betsy Grimm claimed $100,000. She testified that she was thrown against the seat by the impact of the collision and that she experienced a sharp shooting pain down her leg and lower back when she got out of the car. Dr. Robert Ray testified that Mrs. Grimm suffered from a congenital inflammation of the vertebrae in her back; that sixteen days before the accident he had advised her of the possibility that a spinal fusion might be necessary and said that the accident might or could have aggravated the symptoms of her preexisting condition.

The claims of the plaintiffs who have not appealed were even more obviously excessive. Arthur, Rosemarie and Linda Grimm each claimed $10,000 in damages. The complaint specifically alleged that Arthur Grimm as the father of the two minor plaintiffs became liable “for large sums of money for medical expenses.” At the trial the only evidence of injury to either of the minor plaintiffs was the testimony of Rosemarie Grimm that she fell on the floor when the car stopped but was not hurt. Neither is there any injury shown to Arthur Grimm.

Plaintiffs’ claims for damages were far in excess of any damages that could reasonably have been incurred. There may have been some damages for which the appellants were entitled to recover. The judgment as to the appellants is reversed and the cause is remanded for retrial and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. JUSTICE LYONS

text:
    Clara Flewellen, Plaintiff-Appellee, v. Max Atkins, et al., d/b/a State and Madison Property, a Partnership, and United Building Construction Co., a Partnership, Defendants-Appellants. Max Atkins, et al., d/b/a State and Madison Property, a Partnership, Third Party Defendant-Appellee, v. United Building Construction Co., a Partnership, Third Party Defendant-Appellant.
    Gen. No. 51,482.
    First District, Second Division.
    September 24, 1968.

      Meyers & Matthias, of Chicago (Jones & Clark, and Vincent M. Clark, of counsel), for appellant.
    George C. Rabens, of Chicago (S. Joseph Formusa, of counsel), and Roger J. Boylan and Victor J. Cassato, of Chicago, for appellees.
   MR. JUSTICE LYONS

delivered the opinion of the court.

On Rehearing

The plaintiff, Clara Flewellen, joined the defendants, Max Atkins, Herman Atkins, Ben Atkins and Alvin Oken, d/b/a State & Madison Property Co., a copartnership (hereinafter referred to as State & Madison Property Co.) and United Building Construction Co., a co-partnership, in her suit for personal injuries arising from alleged common-law negligence. Thereafter, State & Madison Property Co., a copartnership, filed a third-party complaint against United Building Construction Co., a copartnership, alleging a right to indemnification arising from implied warranty doctrines or active-passive negligence rules. Pursuant to stipulation, the trial court severed the third-party complaint from the original cause of action, which was being tried by a jury. The jury returned a verdict in favor of the plaintiff, Clara Flewellen, and against all defendants, assessing the damages at $3,500 and costs. Judgment was entered upon this verdict.

As to the third-party action, both parties waived a jury. After considering the evidence, the trial court found for the third-party plaintiff, State & Madison Property Co., and against the third-party defendant, United Building Construction Co., in the amount of $3,500 and costs, entering judgment accordingly.

All defendants appeal from the judgment in favor of the plaintiff, Clara Flewellen, and against them in the amount of $3,500 and costs, and from the order of the trial court denying their post-trial motions for judgment notwithstanding the verdict and for a new trial. In addition, the third-party defendant, United Building Construction Co., appeals from the judgment rendered in favor of the third-party plaintiff, State & Madison Property Co., in the third-party action.

At the trial the plaintiff testified that the personal injury occurred on July 23, 1958, when she was on her way to work. She had left the Monroe Street subway station in downtown Chicago and was walking north, approaching the intersection of State and Madison Streets on the west side of State Street, when she was struck on the back of the head, left side, by some object. When so struck, she testified that she was approximately 15 to 20 feet from the southwest corner of State and Madison Streets. She fell to the ground and was assisted to her feet by an unidentified man who showed her the object which had hit her, a 2" x 2" piece of gray stone. Neither the stone nor the unidentified man was produced at the trial.

The plaintiff went on to mention that shortly after the accident she noticed it was 6:18 a. m. Testimony concerning compensatory damages concluded her statements on direct examination. The defendants stated that they had no questions of the plaintiff at this time, subject to her recall under section 60 of the Civil Practice Act. Whereupon, plaintiff’s counsel said, “The plaintiff rests her case, Your Honor.”

The defendants then entered motions for a directed verdict and plaintiff’s counsel asked the court for leave to reopen for the purpose of additional proofs; i. e., answers by the defendants to written interrogatories propounded by the plaintiff. After returning from chambers, where opposing attorneys had presented oral arguments in support of their motions, the trial court refused to grant leave to the plaintiff to reopen her case and refused the defendants’ motions for a directed verdict. Thereafter, the defendants offered no evidence but rather rested and renewed their motions for a directed verdict, which were refused. Closing arguments to the jury by all sides followed.

On appeal, the defendants contend: (1) the trial court erred in refusing to grant their motions for a directed verdict at the close of the plaintiff’s case and again at the close of all the evidence; and (2) the trial court erred in refusing to grant their post-trial motions for a new trial due to prejudicial comments by the plaintiff’s counsel in his closing argument to the jury.

The plaintiff’s case rests solely upon circumstantial evidence. Her theory of liability is alleged to flow from these evidentiary facts: (1) she was struck on the back of the head by a piece of stone; (2) while walking on a public sidewalk approximately 15 to 20 feet from the intersection of State and Madison Streets; (3) the defendant construction partnership was repairing the roof of the defendant building manager partnership at the time of the occurrence, which property abutted the public sidewalk where the plaintiff was struck. Therefore, the defendants are guilty of concurrent negligence. The defendants argue that the plaintiff failed to prove her prima facie case because she never, in her testimony, mentioned them, thereby failing to show that her injury was proximately caused by their alleged acts of negligence. Hence, the trial court erred in failing to grant their motions for a directed verdict.

The standard to be applied by the trial court in evaluating the evidence so as to pass upon motions for directed verdicts has always been an elusive creature in the law. Recently, the Illinois Supreme Court in Pedrick v. Peoria & Eastern R. Co., 37 IU2d 494, 510, 229 NE2d 504, 513 (1967), recognized this problem and solved it by enunciating one standard for use in Illinois:

. . In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Therefore, this court’s duty is to determine. if all the evidence, when viewed most favorably to the plaintiff, so overwhelmingly favors the defendants that no verdict for the plaintiff based on that evidence could ever stand. Since the defendants offered no evidence at the trial, only the plaintiff’s evidence will be considered, along with remarks by counsel for the defendants.

It is true that the plaintiff never mentioned the defendants specifically, by name, in her testimony. However, the attorney for State & Madison Property Co., mentioned in his opening statement to the jury: “We agree with what plaintiff’s attorney has told you that work was going on there, but how the injury occurred we have no knowledge. We believe that the evidence will show that the State & Madison Property Co. had no control over the workmen or the employees of United Construction Company; they furnished the material, the men, and the necessary equipment.”

It was held in Petersen v. General Rug & Carpet Cleaners, Inc., 333 Ill App 47, 77 NE2d 58 (1947) that an attorney can make admissions in his opening statement which will be attributable to his client. In that case the plaintiff was walking across a busy Chicago intersection when two vehicles struck her. These vehicles were being driven by servants of corporate employers. The plaintiff joined both masters as defendants and sued on the basis of common-law negligence. The attorney for one of the codefendants stated in his opening statement to the jury: “I represent the General Rug & Carpet Cleaners, and they were the owners of the first of these two northbound trucks that plaintiff’s counsel spoke about in his opening statement. . . . The driver of our truck has had a great many years of driving experience. It was a panel body truck as he tells me. It was a dark green truck.” Neither defendant introduced any evidence at the trial.

On appeal, the defendants argued the trial court had erred in refusing to direct a verdict in their favor as the plaintiff’s evidence did not show that any vehicle belonging to the defendants was involved in the accident. Furthermore, the plaintiff’s failure to prove one of the basic facts essential to a prima facie case was not cured by the remarks in the opening statement of defendant’s counsel. In rejecting this contention the reviewing court in Petersen at page 57 stated:

“. . . We hold that counsel for defendant General Cleaners admitted, in definite and plain language, that it was the owner of the first of the two northbound vehicles that Mr. Ryan spoke about in his opening statement and that this admission was binding upon his client. ... It is due Transportation Corporation to say that it does not seek to avoid the effect of the admission made by its counsel in the opening statement that the station wagon involved in the accident was being driven by its employee.”

Coming to the same conclusion is Drell v. American Nat. Bank and Trust Co., 57 Ill App2d 129, 207 NE2d 101 (1965). In the present case admissions were made by counsel for State & Madison Property Co., in his opening statement to the jury (i. e., “work was going on there. . . .”) and these admissions bound both his client and the other defendant, United Bldg. Const. Co., as the defendants shared a joint interest in the outcome of the litigation. See McMillan v. McDill, 110 Ill 47 (1884); Miller v. Mathias, 145 Ill App 465 (1908); Lowe v. Huckins, 356 Ill 360, 190 NE 683 (1934). United Building Construction Company did not refute or embellish upon this admission when it presented its separate opening statement to the jury and did not present any evidence to the contrary in its case in chief. In fact, neither defendant presented any evidence, but rather proffered motions for a directed verdict at the conclusion of the plaintiff’s case and renewed these motions after informing the trial court that they intended to present no evidence. In light of the record in the instant case, the admissions of counsel for State & Madison Property Co., in his opening statement to the jury bound the codefendant, United Building Construction Company. We limit this finding to the particular facts of this case.

In the present case the defendants were being sued under a theory of concurrent negligence leading to joint and several liability. Hence, a joint interest was involved, and the trial court did not err in refusing to grant the defendants’ motions for directed verdicts.

This court agrees with the defendants, however, that the plaintiff’s counsel made prejudicial remarks to the jury in his closing argument necessitating a new trial. It must be remembered that neither the pleadings nor the admissions attributable to the defendants through the statements of one counsel in opening argument to the jury mentioned the accident’s time of occurrence. This was stated for the first time by the plaintiff on direct examination. When plaintiff’s counsel asked for leave to reopen the case after his client had “rested,” he did so with the objective of reading into evidence answers of the defendants to written interrogatories propounded to them by the plaintiff, showing that defendant, United Building Construction Co., was doing tuckpointing and replacing terra cotta coping on the building abutting the scene of the accident at the time of the occurrence.

After a conference in chambers with opposing counsel, the trial court exercised its discretion in refusing the plaintiff leave to reopen her case thereby foreclosing her attorney from reading into evidence the defendants’ answers to the interrogatories propounded to them by the plaintiff. The trial court also refused to allow the plaintiff’s counsel, in his closing argument to the jury, to refer to these answers as admissions by party litigants. However, in such closing argument, over defendants’ objections, plaintiff’s counsel relied upon these answers to the written interrogatories as though they had been allowed into evidence:

“Plaintiff’s Attorney: . . . That means that there
is no explanation for this piece of cement other than the fact, I believe, that it came from the work which was being done. I don’t think there is any possible inference other than the fact that the instrumentality which caused the injury to Mrs. Flewellen came from that work. As a matter of fact, Ladies and Gentlemen of the Jury, it is my opinion that the conclusions necessitated by virtue of the facts that Mrs. Flewellen testified to, by the fact that she was struck by this piece of cement, and by the fact the work was in progress.
“Defendants’ Attorney: Objection, your Honor.
There is still no evidence that the work was in progress.
“Plaintiff’s Attorney: That was the admission
that we discussed in chambers, your Honor.
“The Court: You may proceed.”

A case helpful to the court on this point is Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 209 NE2d 868 (1965), a wrongful death action in which the deceased’s administrator sued the bailor of an allegedly defective truck which the latter had leased to the decedent’s employer. In particular, the truck’s hand brake was alleged to be defective. The decedent had been found pinned against a warehouse’s loading dock behind his unattended truck, which was in the neutral position with its engine running. There were no eyewitnesses to the occurrence. Consequently, the plaintiff’s case was dependent upon circumstantial evidence, as is the present case.

The trial court excluded, on hearsay grounds, a report from an I. I. T. engineer which plaintiff’s counsel had offered to admit into evidence. In closing argument, plaintiff’s counsel nevertheless told the jury that the engineer’s report was the only complete examination of the truck and that it disclosed a defect in the hand brake.

In reversing the judgment in plaintiff’s favor and remanding the case for a new trial, the Appellate Court stated in Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 403, 209 NE2d 868, 872:

“Defendant argues it was prejudicial error to knowingly offer an incompetent exhibit into evidence and to comment to the jury regarding its contents after the court had ruled it inadmissible. In so doing, plaintiff undertook to supply facts not based upon any evidence in the record. As held in Mattice v. Klawans, 312 Ill 299, 310, ‘this line of argument was improper because counsel had no right to testify in his argument to the jury.’ ”

Both the cited and the present case involved close questions of liability and the use of circumstantial evidence to sustain the plaintiff’s burden of proof. Furthermore, in both cases plaintiff’s counsel referred, in closing argument to the jury, to a document which the trial court had earlier excluded from evidence. In the cited case it was an I. I. T. engineer’s report. In this case it was the defendants’ answers to written interrogatories propounded to them by the plaintiff. In addition, plaintiff’s counsel, in the present case, put the weight of his personal opinion into his closing argument to the jury when he used the words, “As a matter of fact, Ladies and Gentlemen of the Jury, it is my opinion that . . . Such conduct by plaintiff’s counsel was prejudicial error preventing the defendants from receiving a fair trial initially, thereby necessitating a reversal and remandment of this case for a new trial.

Plaintiff’s counsel argues that it was not error for him to refer, in closing argument, to the defendants’ answers to these written interrogatories, as both documents are in the court file thereby coming into evidence as judicial admissions. It thus becomes unnecessary to read them into evidence. However, this argument tends to overlook the fact that answers to interrogatories are not pleadings. P. Rielley & Son v. National Parlor Furniture Co., 192 Ill App 395 (1915).

Furthermore, Illinois Supreme Court Rule 19-11(4) (Ill Rev Stats (1965) c 110, § 101.19-11(4)) having to do with the use of written interrogatories is an adaptation of Federal Rule 33. See SHA, c 110, § 101.19-11, Joint Committee Comments. A recent federal case explaining the proper trial use of answers to written interrogatories under the Federal Rules of Civil Procedure, Rule 33, is Heilig v. Studebaker Corp., 347 F2d 686 (CA 10th Cir 1965), which was a personal injury action brought against the bailor of a used car loaned to the plaintiff for a test ride preparatory to a possible sale. The brakes failed during this test drive and litigation followed.

At the trial, the plaintiff’s witness was seeking to offer testimony that the defendant had replaced a pin in the brake system after the accident, but the trial court rejected this testimony. Plaintiff’s counsel argued that he was offering this testimony to contradict the defendant’s answers to written interrogatories served on them by the plaintiff. Although some of the answers to the interrogatories were later read into evidence, the answers which counsel for plaintiff sought to contradict by the proffered testimony of the earlier witness were not read into evidence. In affirming judgment for defendant, the reviewing court stated in Heilig v. Studebaker Corp., 347 F2d at 686, 689:

“. . . answers to interrogatories do not become evidence in the case, unless voluntarily introduced by the interrogator as admissions against interest on the part of the party interrogated (cited cases omitted). Hence, the proposed evidence was not admissible for the purpose of impeachment.”

A recent Illinois case construing Supreme Court Rule 19-11(4) and coming to the same conclusion is Driscoll v. C. Rasmussen Corp., 57 Ill App2d 349, 206 NE2d 746 (1965), reversed on other grounds, 35 Ill2d 74, 219 NE2d 483 (1966), where it was held that answers to written interrogatories not read into evidence are not before the jury and cannot properly be considered by the appellate court.

Hence, such answers are not judicial admissions and are not evidence in the case unless and until they are read into evidence. Defendants were thus deprived of a fair trial when plaintiff’s counsel, in his closing argument to the jury and over the defendants’ objections, referred to such answers as though they had been read into evidence, although earlier the trial court had specifically excluded them from being introduced into evidence. Such answers were prejudicial to the defendants because they had to do with the presence of the construction company’s employees at the time of the occurrence. The plaintiff had never mentioned this during her testimony, but rather had rested her case without getting into this aspect of it.

Because the prejudicial error affects both the main action and the third-party action, both judgments and causes must be reversed and remanded for new trials. The judgments of the Circuit Court are reversed and the causes are remanded for new trials.

Judgments reversed and causes remanded.

BURKE, P. J. and McNAMARA, J., concur.


author: MR. JUSTICE MURPHY

text:
    James M. Little, Plaintiff-Appellant, v. Ralph Scheu, Defendant-Appellee.
    Gen. No. 51,178.
    First District, First Division.
    September 23, 1968.
    Rehearing denied October 23,1968.

      Gilmartin & Wisner, of Chicago (Richard S. Wisner and Dom J. Rizzi, of counsel), for appellant.
    Kralovec, Sweeney, Marquard & Scoby, of Chicago (Charles V. Kralovec and Glenn H. Prohaska, of counsel) , for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which the jury returned a $30,000 general verdict for plaintiff. The jury also answered a special interrogatory and found that plaintiff was “guilty of contributory negligence which proximately caused the injuries complained of.” The court entered a judgment in favor of the defendant. Plaintiff appeals from an order which denied his post-trial motion that the court set aside the answer to the special interrogatory as being against the manifest weight of the evidence.

On October 2, 1962, at approximately 9:45 p. m., plaintiff, an eastbound pedestrian in the east-west crosswalk on the south of the intersection of Chicago and Michigan Avenues, was struck by defendant’s automobile, northbound on Michigan Avenue. At that point Michigan Avenue runs north and south and Chicago Avenue runs east and west. The total width of Michigan Avenue at the intersection was 88.4 feet. There was a safety island in the south center of Michigan Avenue, which separated north and southbound traffic. It was five feet in width and extended six or eight feet into the south east-west crosswalk. It was 41 feet from the west curb of Michigan Avenue to the west curb of the safety island, plus 42 feet from the east curb of the island to the east curb of Michigan Avenue. There were three traffic lanes in addition to a left-turn lane for northbound traffic on Michigan Avenue. There were traffic light control signals on the southwest corner and on the southeast corner of Michigan Avenue. On the island was mounted a traffic control signal for north-southbound traffic, in addition to a left-turn signal for Michigan Avenue northbound traffic intending to make a left turn into Chicago Avenue at the intersection.

Plaintiff testified that it was raining that night, and he was wearing a light-colored raincoat. He had alighted from an eastbound Chicago Avenue bus at the southwest corner of Chicago and Michigan Avenues. After he purchased a newspaper on the southwest corner of the intersection, he observed that the traffic light on the east side of Michigan Avenue controlling east-west traffic was red. In addition to plaintiff there were about a half-dozen people on the west side of Michigan Avenue waiting for the light to change to green. When the light turned green, the group proceeded to cross Michigan from the west side of the street to the east side, and plaintiff started to cross the street behind them in the marked crosswalk.

When plaintiff was more than half way across Michigan Avenue, the east-west traffic light began to flicker or change, and plaintiff hastened his step to try to complete crossing the street. Plaintiff did not slacken or slow down his gait at any time. He did not step onto the safety island — “I stepped around the island to the north.” He was “about six or eight feet from the east curb” when defendant’s car knocked him to the pavement. Defendant’s car was traveling northbound in the lane nearest the east curb. There were no cars ahead of defendant’s car, and when plaintiff started to hurry, defendant’s car was about 20 to 30 feet away from him.

Occurrence witnesses for plaintiff included Joe W. Gound and Fay Eckman Javor. Mr. Gound, who was driving an automobile northbound on Michigan Avenue, testified that the light for northbound traffic on Michigan Avenue was green when he was about 50 yards from the south crosswalk. The car in front of him was either stopped or had reached the intersection before him and did not proceed on the green light. Gound slowed down to a full stop. He was in the second lane from the center of the street. There was another car stopped immediately to his left. He stated, “I had occasion to notice a pedestrian within the crosswalk as I was stopped there. ... I would say he was running, going east.” The pedestrian was 20 or 25 feet to the west of his car. “I continued to watch the pedestrian. ... He ran in front of the car that was next to me, to my left, he ran in front of my car, and he was struck by a car to my right. I did not see the car to my right at any time before the collision. I actually saw the impact between the pedestrian and the car to my right.” At the time of the impact his car and the car to his left were stopped. He stated the point of impact was about 20 feet from the east curb of Michigan Avenue, and defendant’s car was going between 5 and 10 miles an hour.

On cross-examination, he testified that plaintiff was 10 feet to the west of the safety island when he first saw him. Plaintiff was running and continued to run the whole time that he kept him under observation. He further stated that the north-south light never changed its color (green) from the first time he saw it, and it turned red after the occurrence.

Plaintiff introduced into evidence the deposition of Mrs. Fay Eckman Javor. She and her husband, who was also an occurrence witness, were traveling north in the center lane of Michigan Avenue. As they approached the intersection on Chicago Avenue, there were three cars abreast in front of them, and they were behind the center car. She said, “When I first saw the pedestrian, Mr. Little, he was between the center car and the car to the right in the center, in the front in the first lane or first row of cars. ... He was hurrying. That’s about all I could say. I think our car was standing still when I first saw Mr. Little.” On cross-examination, she testified there were four cars stopped at the intersection. Defendant’s car was going north to the right of the three cars in front of them. She did not notice any other pedestrian within the crosswalk, and at the time of impact the streets were a little wet.

Defendant testified that he was proceeding north on Michigan Avenue in the east lane of travel from the center. As he left Superior Street, the light at Chicago and Michigan was red, and when he was about 50 feet away from the corner the light turned green. He was traveling very slowly, because he did not know how soon the light would turn green. As they got to the intersection he was moving between five and eight miles an hour. He said, “The car that I am sure was parked in the center lane had started up when the light started, well, he was just ahead of me a little bit, and at that moment a person ran right in front of the other car, narrowly missing him and ran right into my car. That person was Mr. Little. When I first saw Mr. Little he was just running from in front of the car to my immediate left. ... I immediately applied the brake and there was a contact between my car and Mr. Little. . . . I stopped within two or three feet. The color of the light for north and southbound traffic on Michigan Avenue at the time of this contact between my car and Mr. Little was green.” There was no traffic light change until after the impact.

Mrs. Lucille Scheu, the wife of the defendant, testified she was seated next to her husband at the time of the occurrence. Their car was in the curb lane headed north on Michigan Avenue, and the light had turned green as they approached the intersection. The car immediately to their left started to move on the green light, and plaintiff ran in front of it and hit their car. The first time she saw plaintiff was when he was running in front of their car.

The deposition of Peter Javor, an occurrence witness, was read into evidence on behalf of defendant. He was driving an automobile north on Michigan Avenue and was in the center lane as he approached Chicago Avenue. There were cars on his left and one car in front of him. As he approached the intersection the light changed to green for northbound traffic, when he was about 30 to 50 feet south of the light. There was a car ahead of him in the center lane, standing still. Defendant's automobile was to his right and about two car lengths ahead of him. He said the first recollection he had of plaintiff was that he was stepping down from the island in the middle of Michigan Avenue, moving east. “I saw him step down from the island and hurriedly or somewhat in a trot, race or run across the intersection.” The traffic light for northbound traffic was green and never changed to red at any time after he first saw defendant. He said, “As to whether Mr. Little crossed in front of any vehicles before he was struck, yes he did, to the car in front of my left side, the car in front of me, then he finally, he was struck on the right side by Mr. Scheu’s car. As to whether either or both of those other cars were moving or standing still when Mr. Little crossed in front of those cars to my left of the car in front of me I do not know for sure.”

Plaintiff asserts that the evidence shows the following salient facts.

1. The plaintiff had commenced crossing the street in the crosswalk with the traffic light in his favor.

2. There was a change in the traffic light signal while the plaintiff was in the act of crossing the street.

3. When the plaintiff noticed that the traffic light signal was changing he hastened his step and stepped livelier to try to complete crossing the street, and at no time prior to that had he slackened or slowed his gait while crossing the street.

4. The plaintiff was in the crosswalk when he was struck by the defendant’s automobile.

5. The plaintiff was struck by the defendant’s automobile when he was a very short distance, six to nine feet, from arriving at the opposite curb of the street.

6. Three other automobiles remained stopped at the crosswalk while the plaintiff was in the process of completely crossing the street.

7. The plaintiff first saw the defendant’s automobile when it was twenty feet away from the crosswalk.

8. The defendant did not blow his horn or give any warning signal before the accident occurred.

From the foregoing, plaintiff contends that the answer to the special interrogatory should have been stricken because there was no evidence to support a finding that plaintiff was negligent. Plaintiff cites Peach v. Peach, 73 Ill App2d 72, 218 NE2d 504 (1966), where it is said (P 79) :

“The law is well settled that a trial court may set aside a special interrogatory inconsistent with the general verdict when such interrogatory is against the manifest weight of the evidence. . . . and may also set aside a special interrogatory on a single issue where such interrogatory is against the manifest weight of the evidence.”

Also, Young v. Illinois Cent. R. Co., 319 Ill App 311, 49 NE2d 268 (1943), where it is said (p 322) :

“The affirmative finding of a special verdict of negligence is not binding upon the trial court upon defendant’s motion to set it aside, if it is not supported by any evidence, or if, as here, it is contrary to the manifest weight of the evidence.”

Plaintiff also contends that by statute (Ill Rev Stats, c 95%, § 129), defendant should have yielded the right-of-way to plaintiff who had entered the intersection crosswalk while the light was green, even though at the moment of impact the light may have favored defendant. Plaintiff argues that a pedestrian properly assumes that the right-of-way will be yielded him in such circumstances and further, that, absent some warning or notice to the pedestrian that the law is about to be transgressed by a motorist, the pedestrian’s conduct in continuing to cross the street does not constitute contributory negligence. Plaintiff’s authorities on this point include Cogin v. Ide, 196 Minn 493, 265 NW 315 (1936), where it is said (p 318) :

“The statutory provision giving the pedestrian the right of way on a crossing must be given some effect. Where, as here, the plaintiff has such right of way, she should not be held guilty of contributory negligence unless it appears that, under the circumstances shown, she saw and appreciated the danger of the approaching car in time to avoid the collision, or was charged with the knowledge of the danger. It must be assumed that she did not intentionally expose herself to a known danger. But if we hold that one not aware of danger and having the right of way must nevertheless yield the right of way to an approaching car, which plaintiff would have had to do in this case to avoid injury, then we are not only depriving her of her statutory right of way, but we are turning the statute around and conferring the right of way on the defendant.”

Initially, we believe that a pedestrian’s crosswalk rights should be rigorously enforced because of the propensities of many drivers to use their automobiles as lethal weapons. However, in our opinion, the pronouncements made in Peterson v. General Rug & Carpet Cleaners, Inc., 333 Ill App 47, 77 NE2d 58 (1947), apply here. There it is said (p 60) :

“We did not hold in the Mahan case, as defendants argue, that a person who starts across an intersection with the green light in his favor is absolutely entitled to the right of way under any and all circumstances. We did hold, however, that where a person, in reliance upon a green light, has committed himself to a crosswalk, traffic proceeding in an opposite direction upon a change of lights is required to observe his right of way and give him a reasonable chance to reach a place of safety. Defendants also cite a statement in the Moran case that the plaintiff therein had no right to unreasonably intrude herself into the midst of traffic. That statement has no application to the facts of the instant case, where plaintiff entered the crosswalk with the green light in her favor, and there is no evidence to show that she ‘intruded herself into the midst of traffic.’ ”

In the instant case, two disinterested witnesses, Joe Gound and Peter Javor, after the green light had changed for northbound traffic on Michigan Avenue, placed plaintiff running east in the crosswalk, either 10 feet to the west of the safety island or stepping down from the island and passing cars in two lanes before he was struck by defendant’s car. From this testimony we think reasonable men might differ as to whether plaintiff was using due care for his own safety by not stopping at the safety island after the light changed, instead of leaving a place of safety (the island) and “intruding himself in the midst of traffic.” We conclude that the issue of plaintiff’s contributory negligence was a question of fact for the jury.

Under the law, we cannot disturb the answer of a jury to a special interrogatory unless it is against the manifest weight of the evidence, and an opposite conclusion is clearly evident. Manifest means clearly evident, plain and indisputable. From our examination of this record, the affirmative answer of the jury to the special interrogatory on the question of whether plaintiff was “guilty of contributory negligence which proximately caused the injuries complained of,” was not against the manifest weight of the evidence. The pronouncements made in Borries v. Z. Frank, Inc., 37 Ill2d 263, 266, 226 NE2d 16 (1967), apply here, and the special finding of the jury must prevail over the inconsistent general verdict in favor of plaintiff. Therefore, the trial court was correct in entering judgment in favor of defendant, and the judgment is hereby affirmed.

Affirmed.

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