author: MR. JUSTICE ABRAHAMSON

text:
    Gudrun B. Johanneson, et al., Plaintiffs-Appellants, v. John M. Ring, Defendant-Appellee.
    Gen. No. 66-107.
    Second District.
    April 20, 1967.

      Reese, Schlueter & Ecklund, of Rockford, for appellants.
    Maynard, Maynard & Brassfield, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal brought by Gudrun Johanneson and Benjamin Johanneson, her husband, from judgments in their favor, entered on jury verdicts, of the Circuit Court of Winnebago County on the grounds that the damages awarded were wholly inadequate and against the manifest weight of the evidence; and that certain errors of the trial court contributed to the low verdicts.

On the morning of March 5, 1963, at approximately 9:30 a. m. in the City of Rockford, Gudrun johanneson was driving home alone from a laundromat. At the intersection of Newburg and Alpine Roads she turned left to proceed to the east on Newburg Road. It was raining and sleeting, and the streets were covered with ice and extremely slippery. Shortly after her turn, the defendant, John Ring, also alone, made an identical turn off of Alpine and proceeded to the east on Newburg Road. Ring noticed Mrs. Johanneson’s automobile approximately 150 feet in front of him and testified that her rear wheels were spinning and that her car was not moving. Mrs. Johanneson denied that her automobile had stopped but stated that, because of the slick pavement, her speed was greatly reduced. The grade of Newburg Road is quite flat to the east from Alpine Road but begins a slight incline at the point that Ring observed the other car.

Ring applied his brakes but was unable to stop his automobile and it collided with the rear of the Johanneson car near the center of the rear bumper. Both automobiles were damaged but, after the police were notified and the usual reports completed, both Ring and Mrs. Johanneson proceeded on their respective ways in their vehicles.

Mrs. Johanneson stated that her head “snapped” at the moment of impact and that she experienced “an awful pain” through her head and neck. She drove home, in considerable discomfort, called her husband by telephone and he took her to see a Dr. Harshfield, their family physician, that afternoon. Dr. Harshfield testified that his examination disclosed tenderness and rigidity in Mrs. Johanneson’s neck and that an X ray, taken that day, revealed a straightening of the normal curve of the neck and that the neck was slightly twisted. He also detected muscle spasm and prescribed muscle relaxants and narcotic injections to relieve her pain. Dr. Harsh-field continued to see Mrs. Johanneson for several months and, in addition to the narcotics, treated her with a cervical collar and ultrasound treatments to relieve her discomfort. On May 7, 1963, Dr. Harshfield determined that his patient’s progress was unsatisfactory and he referred her to Dr. Donald Lyddon, an orthopedic surgeon, in regard to a possible ruptured disc.

It was Dr. Lyddon’s opinion, after he had obtained a history from Mrs. Johanneson, that she had a damaged cervical disc and he recommended an anterior neck fusion to correct her condition. To locate the particular disc that is damaged, if any, an incision is made through the neck and a dye is injected into the disc spaces since an undamaged disc will resist the injection of the dye. This procedure revealed that Mrs. Johanneson did have a damaged disc and the fusion was performed by drilling a hole into the damaged disc space, removing as much of the drilled material as possible, and inserting a piece of bone removed for that purpose from her hip. A fusion of this type inevitably creates some disability in the neck by stiffening the replaced joint. This operation was performed on June 10, 1963, and Mrs. Johanneson remained in the hospital for five days. Dr. Lyddon continued to see her regularly and considered the operation a success. In October, 1963, she complained of a recurrence of pain on the left side of her neck but in his opinion that was caused by muscle spasm and he prescribed relaxants and physiotherapy. On April 16, 1964, he last saw his patient professionally and he recommended no further treatments since “she was feeling very good.”

Mrs. Johanneson denied that she felt “very good” and in January of 1965, consulted Dr. William B. Fischer, a teacher of orthopedic surgery at Northwestern University. Dr. Fischer took the history, examined her, and was of the opinion that she suffered from an impingement of the 7th and 8th cervical nerves. An electromyographic examination was made that indicated a diminished nerve supply to her left hand and intramuscular weakness. It was Dr. Fischer’s opinion that these conditions were caused by the impingement of the cervical nerves which were themselves caused by the accident of March, 1963, or the anterior fusion. He recommended conservative therapy since a further operation in the spinal cord area was extremely dangerous and could result in quadraplegia.

Count I of the amended complaint charged Ring with negligence and asked for damages in the amount of $75,-000 for the injuries suffered by Gudrun Johanneson. Count II sought $25,000 for Benjamin Johanneson for expenses incurred by him for his wife’s injuries, and loss of her services.

At the conclusion of the trial, the jury returned verdicts of $2,500 and $2,200 for Gudrun and Benjamin respectively and judgments on the verdicts were entered accordingly. Motions for a new trial were denied and this appeal resulted.

The plaintiffs first complain that the facts disclose that the defendant was negligent and that Gudrun Johanneson was free from contributory negligence as a matter of law and that therefore the court committed reversible error in its denial of their motion for a directed verdict on the issue of liability. They contend that although the jury ultimately determined that Ring was, in fact, liable, that the error contributed to the low awards. The recent case of McManus v. Feist, 76 Ill App2d 99, 221 NE2d 418, also was concerned with a so-called “rear end” collision. The court upheld the trial court’s denial of a motion for a directed verdict on the issue of liability and stated at page 103:

“. . . In order that a verdict upon liability may be directed the facts must be susceptible to but one interpretation and it is improper to direct a verdict where there is a conflict in the evidence . . . .”

After a motion by the plaintiff for a directed verdict, the court should consider all of the evidence in its aspect most favorable to the defendant, and all reasonable inferences that can be drawn from that evidence, and if there is any evidence or inference which tends to prove the position of the defendant, the motion must be denied. Johnson v. Skau, 33 Ill App2d 280, 284, 179 NE2d 140; Palmer v. Poynter, 24 Ill App2d 68, 71, 163 NE2d 851.

When this principle is applied to the case before us we must conclude that the plaintiffs’ motion was properly denied. There was testimony that the Johanneson car was completely stopped in the road and it could be concluded that therefore the driver was not free from contributory negligence or, more likely, the evidence could support the conclusion that the accident resulted from the treacherous road conditions and was unavoidable. The determination of the jury that Ring was negligent appears sound but in any event the decision was correctly left for its deliberation.

The plaintiffs contend that the awards of the jury were wholly inadequate and against the manifest weight of the evidence. Benjamin Johanneson sought recovery both for his expenditures on behalf of his wife for medical, hospital and professional aid and for the loss of her services to him. Evidence was submitted that Mr. Johanneson paid bills that amounted to $2,121.-21 for medical help for his wife. However, no evidence was offered as to his damages for loss of her services so the award of $2,200 by the jury was clearly supported by the evidence and we will not consider his contention further.

As a general rule, a court of review will not interfere with the discretion of a jury in its assessment of damages. Corsello v. Warren, 51 Ill App2d 367, 371, 201 NE2d 155. Ordinarily, if the jury has been properly instructed, and its decision was not influenced by passion or prejudice, the award will not be disturbed unless it is palpably inadequate. Haleem v. Onate, 71 Ill App2d 457, 460, 219 NE2d 94. The plaintiff has cited several Illinois cases where jury awards have been held inadequate by courts of review and the cases remanded for new trial for that reason.

We have examined those cases with great care and will review them very briefly for the purpose of comparison with the situation before us. In O’Brien v. Howe, 30 Ill App2d 419, 174 NE2d 905 (1961), an award of $1,200 was held inadequate where the plaintiff had proven “special” (out-of-pocket expenses) damages of $1,-551.45 on the ground that the jury had obviously failed to consider all the elements that comprise compensable damages.

The court held an award of $2,000 inadequate in the case of Montgomery v. Simon, 309 Ill App 516, 33 NE2d 642 (1941) where the plaintiff had established special damages in the amount of $1,700 and it appeared that he would be unable to do any manual labor in the future as a result of his permanent injuries. The court concluded that the jury had failed to take into consideration proper elements of damages which had been adequately proven; and that the jury apparently improperly determined that the plaintiff had already been compensated through his own insurance in arriving at their award.

In Luner v. Gelles, 314 Ill App 659, 42 NE2d 313 (1942) an award of $375 was held to be inadequate where the plaintiff’s injuries were permanent, his special damages were in the sum of $372.90, and it appeared that the jury had compromised the damages because of doubtful liability.

An award of $5,000 was inadequate in Lukich v. Angeli, 31 Ill App2d 20, 175 NE2d 796 (1961) where the plaintiff had permanent injuries, medical expenses of $1,861.61 and loss of wages of approximately $5,000 and it appeared that the jury had been prejudiced by the improper final argument of the defense counsel.

This court recently held an award of $2,250 inadequate where the plaintiff had medical expenses of $1,-070.90, loss of profits of $2,000 to $3,000, and it appeared that the jury was confused and had compromised on the question of liability. Harris v. Minardi, 74 Ill App2d 262, 220 NE2d 39 (1966).

In Wihr v. Bruno’s Appliances Sales & Service, 29 Ill App2d 145, 172 NE2d 633 (1961), two awards were set aside where it appeared that the jury had failed to consider the proper elements of damage clearly proven and the plaintiffs had a veritable catalogue of objective, painful and permanent injuries.

In our case, the plaintiff, Gudrun Johanneson, seeks no recovery for her out-of-pocket expenses since her husband had sued and recovered for those items. She was unemployed at the time of the accident and she has made no claim for loss of earnings or profits. She testified that she has had pain in her neck, shoulders and that her fingers on her left hand are numb. She has some pain “almost every day” and recurring headaches. Her complaints are, by their nature, mostly subjective.

Dr. Fischer found a diminuation of nerve supply and intramuscular weakness when he examined Mrs. Johanneson in January of 1965, and was of the opinion that they were caused either by the accident or the surgery that resulted. However, Dr. Lyddon, the surgeon, had discharged her in April of 1964 and felt that the fusion was a success and that the patient was “feeling good.”

Under the circumstances we cannot conclude that the jury’s award of $2,500 was either palpably inadequate or against the manifest weight of the evidence. The fact that other juries in other cases have returned higher awards for comparable complaints is not, of itself, material. Although the award was not particularly large, we do not feel that it was inadequate or that the jury misused its function.

Plaintiff next urges that the court committed reversible error in refusing plaintiffs’ IPI 21.02 (Burden of Proof Instruction) and plaintiffs’ IPI 20.01 (Issue Instruction) from which there had been deleted the requirement that the plaintiff wife was “exercising ordinary care.” We have concluded this issue in the comments made in upholding the trial court’s refusal to give the plaintiff a directed verdict on the question of liability at the close of the evidence. The failure to include the requirement that the plaintiff wife was exercising ordinary care was ample reason to refuse these instructions. The Damage Instruction, IPI 30.01, etc., included 30.06, the element of medical expenses. The recovery of medical expenses was sought for and incurred by the plaintiff husband and should not have been included in the damage instruction for the plaintiff wife. The court properly refused this instruction.

The plaintiff husband tendered IPI instructions 32.01, 32.02, 32.03 and 32.04 (Injury to Spouse) including the section on loss of services, IPI 32.03. He testified that he was making no claim for taking care of the children since his mother-in-law provided for this, from which we conclude that he made no claim for loss of services of his wife, and therefore, the instruction should not have been given. Shore v. Turman, 63 Ill App2d 315, 321, 210 NE2d 232.

Objections to defendant’s instruction conforming to IPI 60.01 (Violation of Statute) requiring that a person who stops or suddenly decreases speed should give an appropriate signal is a defense urged here and is an element to be properly submitted to the jury for a determination of whether or not the plaintiff was in the exercise of ordinary care. A party has the right to have the jury instructed on his theory of defense. Shore v. Turman, supra, at page 321.

Plaintiff complains of an instruction given by the defendant stating that if there is no liability the jury would have no occasion to consider damages. This is an IPI instruction appearing in the Additions and Revisions, 1965, 21.07 (Burden of Proof). We approved a similar instruction in Hoffman v. Wilson, 60 Ill App2d 396, 404, 405, 208 NE2d 607.

Finally, the plaintiff urges improper conduct on the part of defense counsel prevented plaintiff from receiving a fair trial on the question of damages. This question is left very largely to the discretion of the trial court who has the opportunity of hearing remarks of counsel for both sides. Discretion of the trial court may be abused, thereby depriving a litigant of a fair trial. Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 402, 209 NE2d 868. We find no prejudicial reversible error here and a specific discussion of the points would unnecessarily extend this opinion. Jines v. Greyhound Corp., 46 Ill App2d 364, 378, 197 NE2d 58.

We have not considered the contentions of the defendant that the appeal should have been dismissed for certain alleged technical failures since those contentions should be raised by motion, not in the brief. Ill Rev Stats, c 110, §201.5(2), (3) (1965) (Supreme Court Rule 361).

For the reasons given, the judgment orders of the Circuit Court of Winnebago County will be affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edwin D. Ziebell, Defendant-Appellant.
    Gen. No. 50,211.
    First District, Third Division.
    April 20, 1967.

      Joseph I. Bulger, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was found guilty of operating a motor vehicle which was 10,550 pounds in excess of the statutory limit. As a result, he was fined $1,055 in accordance with the statute. Ill Rev Stats, c 95^, § 228(b) (1963). He now appeals, contending that: (1) the State failed to prove the violation beyond a reasonable doubt; (2) the State failed to prove the accuracy of the scale; and (3) the court erred in admitting a weighmaster’s certificate into evidence.

At the trial the following testimony was stipulated:

“. . . If Sergeant Walsh testified he would testify that, on September 29,1960 at 120th Street and Doty Avenue in the City of Chicago he had occasion to observe the defendant operating a motor vehicle, and that he had occasion to observe the size of the load and the pull on the motor and the position of the springs. Based on these observations, he had reason to believe that this truck was overloaded and he stopped the driver and had a conversation with him. He told the defendant, Edwin Ziebell, driver of the truck to proceed to the nearest public scale, which at this time was at 95th Street and Stony Island, being Oklahoma Oil Company. At that time the truck was put on the scale under the direction and supervision of Sergeant Walsh and Officer Major who was in the scalehouse at the time.
“The truck was weighed under the direction of Officer Major, who, if he were to testify, would testify that the gross weight of the truck was 51,560 pounds.
“Sergeant Walsh would further testify that he had occasion to look at the license plates on the vehicle and for License No. X8112 the driver was entitled to have a load in the maximum weight of 41,000 pounds and the gross weight of 51,560 pounds was a gross overweight of 10,550 pounds.”

The State also introduced the weight certificate into evidence. Defendant offered no evidence. At the close of the case the court found defendant guilty and assessed the fine hereinbefore stated.

Defendant contends that the State failed to prove the accuracy of the scale and hence there was no proper foundation for the testimony regarding the readings on the scale indicator. The testimony in question however was presented by stipulation, and defendant thereby agreed to its admission. He cannot question its propriety on appeal.

Defendant objected to the admission of the weigh-master’s certificate on the additional ground that the weighmaster was not in court to testify to the accuracy of the weighing. He contends that he was deprived of the right to be confronted by the witnesses against him, and he cites Pointer v. Texas, 380 US 400, and Douglas v. Alabama, 380 US 415, in support of his argument. In the Pointer case the petitioner was arrested and brought before a state judge for a preliminary hearing on a robbery charge. The complaining witness testified, but petitioner, who had no counsel, did not cross-examine. Petitioner was later indicted and tried. The witness had moved to another state, and the transcript of his testimony at the hearing was introduced over the petitioner’s objections that he was denied the right of confrontation. The court held that the right to confront and cross-examine witnesses was guaranteed by the sixth and fourteenth amendments of the federal constitution, but the court also recognized that there were exceptions to the confrontation rule, such as dying declarations, the testimony of deceased witnesses and analogous situations.

Douglas v. Alabama, supra, the other case cited by defendant, involved the confession of an alleged accomplice which was brought to the attention of the jury during the petitioner’s trial. The alleged accomplice refused to testify on the grounds of self-incrimination, and the State’s Attorney read the confession under the guise of cross-examining the accomplice as a hostile witness. The court held that the petitioner was deprived of the opportunity of cross-examining the accomplice in regard to the incriminating portions of the confession. The facts in the Douglas case are not similar to those in the instant case, and the holding is clearly inapplicable here.

The weight certificate to which the defendant objects is a public document and it is admissible as such. People v. Hansen, 74 Ill App2d 49, 220 NE2d 96; see also Municipal Code of Chicago, §§ 164-1 to 164-19 (1939) (with amendments to January 1, 1965); Wigmore, Evidence, §§ 1631-1632 (3rd ed 1940). Neither the hearsay rule nor the confrontation rule can be invoked against the admission of a public document of this character. See United States v. Kelly, 349 F2d 720 (2nd Cir) at pp 770-771. The weight certificate was properly admitted into evidence. Moreover, the load in question was 25% over the limit fixed by law, a large margin for error which leaves no room for doubt that the law was violated. See People v. Fair, 61 Ill App2d 360, 210 NE2d 593; People v. Fraschetti, 73 Ill App2d 449, 220 NE2d 98; People v. Hansen, 74 Ill App2d 49, 220 NE2d 96. The judgment is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Norval W. Wells and Samuel E. Wells for the Use of Catherine L. Rainwater, Individually and as Administrator of the Estate of Willie A. Rainwater, Deceased, Rowena Annabelle Secrist, Edna B. Harris, as Administrator of the Estate of Claude William Harris, Deceased, Claude W. Harris, and Charles Harris, a Minor, Plaintiffs-Appellants, v. Lee Braxton, et al., Defendants-Appellees.
    Gen. No. 51,060.
    First District, Third Division.
    April 20, 1967.
    Rehearing denied June 5,1967.

      Jean Appleman, of Chicago, for appellants.
    Carroll, Connelly & Hartigan, of Chicago (John M. Hartigan and John M. Hillery, of counsel), for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from orders quashing the service of process upon defendants Braxton, Ewen, Jones and Keith, and transferring the case as to the rest of the defendants from Macon to Cook County. The orders recited that three of these defendants, Ewen, Jones and Keith, were not amenable to process by Illinois under section 17 of the Illinois Civil Practice Act, (Ill Rev Stats 1963, c 110, par 17), and that return of service upon Braxton failed to meet the requirements of section 16 of that act.

Braxton, a North Carolina resident, was allegedly president of Pioneer Auto Insurance Company (Pioneer), and Ewen, Jones and Keith, Kentucky residents, were allegedly directors of Republic Casualty Insurance Company (Republic). According to Ewen, Jones and Keith, as set out in affidavits filed by them, they were directors of Republic from May, 1955, to January, 1956. Plaintiff Norval Wells was an insured under a policy issued by Pioneer. Republic later assumed control of Pioneer.

Plaintiffs contend that Ewen, Jones and Keith are amenable to suit in Illinois in that they were transacting business in Illinois, they committed torts in Illinois, and they contracted to insure persons, property or risks in Illinois; that the technical requirements of section 16 of the Civil Practice Act are not jurisdictional and, therefore, the defect in return of service upon Braxton does not invalidate that service; that defendant Braxton failed to file a required affidavit specifying the alleged deficiencies of the return and the portion of the statute violated; and that Macon County is the place where the transaction out of which this suit arose occurred and is the proper place for trial.

Plaintiff, Norval Wells, was the insured under an automobile insurance policy issued in September, 1954, in Cook County by Pioneer. His son Samuel was an additional insured under that policy. On March 17, 1955, while driving in Macon County, Samuel was involved in a three-car collision in which two persons were killed and three were severely injured. Suits arising out of that accident were brought in Macon County by the injured and the administrators of the decedents against Samuel Wells. Judgments were rendered for those plaintiffs well in excess of the insurance policy limits (50,000/100,000). These judgments are still unsatisfied.

Pioneer was an Alabama reciprocal authorized to do business in Illinois from April, 1954 to June 6, 1955. Its Illinois attorney-in-fact was a Delaware corporation with its principal office in Chicago, Illinois. It also maintained an office in Alton, Illinois, through which plaintiff purchased his policy. About the same time that Pioneer lost its authorization to do business in Illinois, it was taken over by Republic, a Kentucky corporation authorized to do business in Illinois from July 19, 1955, to September 2, 1956. Policies issued by Pioneer were taken over by Republic and thereafter, business was transacted under the name Pioneer, Division of Republic, through Republic’s Louisville, Kentucky office. Republic was placed in the hands of a Kentucky liquidator September 2, 1956.

The same people who had controlled Pioneer took over the control of Republic and Republic’s stock was held by a dummy corporation controlled by one Paul Temple.

At the time of the accidents, the insurance companies hired John Dyar, a Macon County, Illinois attorney, and Lynch Adjusting Company to act for them in handling the defense of the suits. Dyar sought to settle them but was given authority to settle for a maximum of only $7,000. Many letters were exchanged between the Illinois representatives and Pioneer wherein the company agreed to confer with Dyar about settlement; however, no such conference occurred. By the time the judgments were rendered the company was unable to pay because the funds had been depleted.

Plaintiffs brought this suit in Macon County for the use of their judgment creditors (plaintiffs in the cases arising out of the auto accidents). The complaint listed the defendants and gave their respective titles. Included were officers, directors, the companies, and the attorney Dyar. Numerous acts were allegedly committed by these defendants, including the issuance of the policy while the company was insolvent and the concealment of said insolvency from the plaintiffs, negligence and bad faith in failure to properly negotiate and settle the claims against Wells when it was known to all that there was no good defense to the suit, and mismanagement of company funds and investments which caused the insolvency of the companies.

It was further charged that defendants were negligent in allowing Paul Temple to obtain control of the cornpanies. Temple had a history of insurance company management which included the bankruptcy of the three companies with which he had been associated. He had gone through bankruptcy personally twice, and had been indicted on charges of making false statements to government boards and violating war fraud laws. On the former charge he pleaded no contest; on the latter he pleaded guilty. In addition, Temple was a known alcoholic. However, there was no allegation that the defendants in this appeal had knowledge of these facts.

Defendants, Ewen, Jones and Keith, filed a motion to quash service upon them accompanied by affidavits stating that they were never Illinois residents, that they served as directors of Republic for a seven-month period (May, 1955-January, 1956), that they were never in Illinois to transact any business for Republic, and that at no time did they personally contract to insure any person, property or risk located in Illinois. Braxton appeared specially stating by affidavit that he was not an Illinois resident and the return of service upon him did not comply with the requirements of the Civil Practice Act section regarding service of nonresidents.

The court in Macon County ordered the quashing of summons, service and return upon the four defendants in this appeal. Two other defendants had moved for a change of venue on the ground that the transactions involved did not occur in Macon County, but that the proper court was one in Cook County. The Macon County court also granted this motion, and the cause was transferred to Cook County. After a final order was entered as to the remaining defendants in Cook County, this appeal was taken.

Plaintiffs first contend that defendants Ewen, Jones and Keith are amenable to suit in Illinois. The legislature has provided that certain acts are bases for nonresidents’ submission to the jurisdiction of the Illinois courts. Section 17 of the Civil Practice Act provides in part as follows:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:
“(a) The transaction of any business within this State;
“(b) The commission of a tortious act within this State;
“ . . .
“(d) Contracting to insure any person, property or risk located within this State at the time of contracting.”

Ewen, Jones and Keith submitted affidavits in support of their motion to quash which specifically denied Illinois residency, transaction of any business for or on behalf of Republic in Illinois, and personally contracting to insure any person, property or risk located in Illinois. They further stated that they had been directors of Republic from May, 1955, to January, 1956. Plaintiffs filed no counteraffidavits with their objections to the motion to quash. The unverified complaint alleged many acts by “defendants, or one or more of them,” some of which occurred at a time when these defendants were not even connected with Republic. Also, some of the alleged acts involved negligence in the handling of the Wells claim. It was alleged that there was much communication between Dyar or Lynch and the company regarding settlement of the Wells claim. These letters were all addressed to, or received from, the Pioneer office in Chicago, and there is no showing that the situation was ever brought to the attention of Ewen, Jones and/or Keith, nor did their signatures appear on those letters. Plaintiffs never showed them to have committed any acts involving this claim, nor specifically alleged such involvement.

Defendants rely upon an Illinois case quite similar to the case at hand, In re Estate of Oelerich, 31 Ill App2d 457, 176 NE2d 549. In that case a mother was seeking to have her daughter declared incompetent. The unverified complaint alleged that the daughter was a resident of Evanston, Illinois. The daughter filed a motion to dismiss the proceedings on the ground that the court lacked jurisdiction over her person. Accompanying her motion was an affidavit stating that she was a resident of Indiana and had not submitted to the jurisdiction of the Illinois court. The trial court denied the daughter’s motion. However, the appellate court reversed that ruling and, with reference to the affidavit, said on page 461:

“It alleges facts sufficient to show that respondent, presumably sane, was domiciled in and was a resident of Indiana, and that she had not submitted herself to the jurisdiction of the Probate Court of Cook County, Illinois. In ruling on the objection to the jurisdiction of the court, and in absence of counteraffidavits or evidence to the contrary, we believe the affidavit of respondent should have been taken as true, (Leitch v. Hine (1946), 393 Ill 211, 219, 66 NE2d 90). It overcame any presumption of jurisdiction of the person of respondent and the residency averment of the petition.”

In the instant case defendants filed affidavits which, in absence of counteraffidavits or other contrary evidence, could only lead the court to rule that they were not subject to the jurisdiction of the Illinois courts. There was no countering by plaintiffs of the specific denials found in defendants’ affidavits. Plaintiffs contend that the court must balance against those affidavits plaintiffs’ objections to this and other motions and all affidavits filed by them. Our review of the record shows no evidence directly controverting the statements of the defendants by affidavit.

The allegations of the unverified complaint charge acts, which, although tortious, all arise out of the basic contractual relationship of the company (Pioneer) and Wells. The fraudulent issue of the policy and negligence in failure to fulfill the contractual duty to negotiate and settle the claims against Wells are closely tied in with the contract itself. Even the alleged mismanagement of various kinds would be no concern of plaintiffs and would give them no standing to sue were it not for some harm coming to them because of failure to live up to policy provisions. It follows, therefore, that the failure to deny the commission of a tort in Illinois does not render these defendants subject to suit in Illinois. Indeed, they denied all acts which would give the Illinois courts jurisdiction over the defendants, and the denials were not controverted by plaintiffs.

Section 20 of the Illinois Civil Practice Act provides that, in ruling on the question of jurisdiction, “the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact.” Whether the defendants had done any acts in the State which would subject them to that court’s jurisdiction was a disputed issue of fact. The order of the court recited “the Court hears the further testimony adduced on the several motions of the said defendants to quash the summons, the arguments of counsel, and being well and sufficiently advised in the premises, allows the several motions of said defendants.” We have no record of proceedings before us and, in the absence of such, must assume that the evidence supports the factual finding of the trial court. Sauter v. Pickrum, 373 Ill 541, 26 NE2d 844; Pease v. Kendall, 391 Ill 193, 63 NE2d 2; Anthony v. Gilbrath, 396 Ill 125, 71 NE2d 84; Leathers v. Leathers, 13 Ill2d 348, 148 NE2d 773; People v. Kapande, 23 Ill2d 230, 177 NE2d 825; Skaggs v. Junis, 28 Ill2d 199, 190 NE2d 731.

Plaintiffs next contend that the technical requirements of section 16 of the Civil Practice Act are not jurisdictional and the defect in the return of service on defendant Braxton does not invalidate the service. It is their theory that, as in service upon residents, if defendant is given actual notice of the suit then the technical deficiencies may be overlooked. With this we cannot agree. While the State presumably has jurisdiction over its residents, this is not true of nonresidents. It is only in certain instances that our courts may reach out and touch citizens of other states and these occasions are enumerated by statute. Furthermore, a separate and distinct method of service of these nonresidents is described in section 16, which reads in part as follows:

“(2) The service of summons shall be made in like manner as service within this State, by any person over 21 years of age not a party to the action.,, No order or decree of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service has been properly made.”

The requirements set out above are similar to those in a statute construed in Werner v. Shons Co., 341 Ill 478, 173 NE 486. In that case a statute authorized service upon partnerships, in the partnership name, if the partners were nonresidents of the county in which the partnership business was carried on, but residents of Illinois. The return of service on the defendant partnership did not recite that it was a partnership, the partners of which were nonresidents of the same county but residents of Illinois. The court ruled that the return was insufficient since it did not show compliance with all the requisites of the authorizing statute. Significant language appears on page 486, wherein it is said:

“(Jurisdiction, unless the defendant voluntarily enters his appearance, can be acquired in actions at law only by the service of a summons in the manner directed by the statute. The return of the sheriff is the only evidence which the court can receive of such service. The fact of the jurisdiction of the court over the defendant’s person cannot rest in parol.”

With the above in mind it is clear that service and return on an out-of-state defendant must comply fully with the statutory requirements. The statute requires that an affidavit of the server of summons accompany the return, showing the time, manner and place of service. No such affidavit was filed as to service on Braxton. Although the statute in point allows consideration of evidence as well as this affidavit, here there was nothing of sufficient merit to allow the court to conclude that Braxton had been properly served.

Plaintiffs contend that even though statutory compliance was lacking that Braxton failed to comply with section 20 of the Civil Practice Act, which sets out the particulars for special appearances, by his failure to set forth in an affidavit the reasons for his objections and the section of statute violated. Section 20 says an affidavit must support the objections only if the reasons for objection are not apparent from the papers on file. In this case it was apparent to the court that no affidavit had accompanied the return of service, and that such service was, therefore, deficient on its face.

For the above reasons the orders quashing summons, service and return upon the four defendants in this appeal are affirmed. Because of that decision we need not consider the order granting the change of venue from Macon County to Cook County.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE DEMPSEY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rocco Pranno Alias Jim Pranno, Defendant-Appellant.
    Gen. No. 51,144.
    First District, Third Division.
    April 20, 1967.
    Richard H. Devine, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.


text:
    Betty A. Simmons, Plaintiff-Appellee, v. Ralph N. Budelman Excavating Company and Thomas Kovel, Defendants-Appellants.
    Gen. No. 51,421.
    First District, Third Division.
    April 20, 1967.
    Vogel & Vogel, of Chicago (L. H. Vogel, Robert C. Vogel and Richard A. Walkovets, of counsel), for appellants.
    Querry, Harrow, Gulanick & Kennedy, of Chicago (James J. O’Hagan, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiff was injured on May 12, 1959, when a truck struck the rear of the automobile she was driving. The defendant, Ralph N. Budelman Excavating Company, was the owner of the truck and defendant, Thomas Kovel, was the operator of the truck and an employee of the excavating company.

Interrogatories were served upon the plaintiff on August 20, 1964. Answers were subsequently filed to the interrogatories on October 7, 1964. A witness, Wesley Simmons, was not listed by plaintiff as a person present at the scene of the occurrence, or as one having information concerning the circumstances surrounding the alleged occurrence. From the record it does not appear that Wesley Simmons, who is the husband of the plaintiff, was an occurrence witness.

On December 7,1965, supplemental interrogatories were filed which sought the names of persons having knowledge of facts in issue. The interrogatories of December 7,1965, were not answered by the plaintiff, but, again, it would appear from defendants’ brief that objections to these last interrogatories were filed on January 10, 1966, and that no ruling upon these objections was had or asked for by either the plaintiff or defendants. The answers filed to the original interrogatories of October 7, 1964, merely gave the name and address of Wesley Simmons in answer to a question as to who owned the car which was driven by the plaintiff at the time of the accident. At the trial plaintiff called this witness to testify and he was permitted to testify to plaintiff’s previous condition of well-being and her condition subsequent to the accident. Wesley Simmons is plaintiff’s husband.

The case was submitted to the jury on the issue of damages only, the defendants having admitted liability.

The defendants contend that it was error for the trial court to permit Wesley Simmons to testify, and that it was prejudicial error to permit plaintiff’s attorney to read to the jury a document not in evidence.

The first question presented to us is whether it was an abuse of the trial court’s discretion to permit Wesley Simmons to testify.

It has been held that it is within the discretion of the trial judge to determine from the circumstances of each case that which constitutes compliance or noncompliance with Supreme Court Rule 19-11, (Ill Rev Stats 1965, c 110, par 101.19-11), and to determine what sanctions, if any, shall be imposed. Reske v. Klein, 33 Ill App2d 302, 179 NE2d 415.

The plaintiff’s testimony covered the extent of her injuries, her absence from work as a result thereof, her pain and suffering, and her limited ability to do housework, in detail.

Wesley Simmons, her husband, testified that he lived at 2 S. 070 Valley Road, Lombard; that the plaintiff is his wife, and they have been married about eighteen years. Without specialized knowledge, he observed his wife’s physical condition before the accident and it was perfectly normal, as far as he could see. After the accident she was pretty well bruised up and ached for three or four years, “some place in there.” There were a lot of things she did before the accident which she could do only in a limited way after the accident, but she still did things around the house. She watched herself as to what she could do and “I helped her.”

This testimony had been completely covered far more in detail by the plaintiff.

In the case of Granger v. Turley, 20 Ill App2d 488, 156 NE2d 610, the trial court permitted a witness to testify although his name was not included in the plaintiff’s answer to defendants’ interrogatories. The court in that case, on page 491, said:

“In our opinion, this evidence was merely cumulative. Assuming without deciding that it was error to admit this testimony, it was not reversible error because this testimony was corroborated by other witnesses.”

Furthermore, when the defendants objected to the calling of Wesley Simmons as a witness, the court said: “That’s what I mean — before he goes on if you want to ask for any additional time.” The trial judge, no doubt, was prepared to give the defendants as much time as they desired to question this witness, or even to continue the matter for a limited time, so that the defendants would not be taken by surprise.

In Miksatka v. Illinois Northern Ry. Co., 49 Ill App2d 258, 199 NE2d 74, a case involving a situation similar to the one before us, the court on page 264 said:

“Since the trial court recessed the trial overnight to give the plaintiff an opportunity to talk with Kilcoyne prior to his taking the stand, plaintiff cannot claim surprise and the court did not abuse its discretion in this regard. Wright v. Royse, 43 Ill App2d 267, 193 NE2d 340; Hansel v. Friemann, 38 Ill App2d 259, 187 NE2d 97.”

When the trial court offered to give the defendants additional time before putting this witness on the stand, and the defendants did not request any additional time or postponement, it cannot be said that the trial court abused its discretion in permitting this witness to testify. Furthermore, it was only one interrogatory, in the second set of interrogatories which had been filed by the defendants, which would have required the listing of the name of Wesley Simmons, and those interrogatories had been objected to and not answered. In the first set of interrogatories, however, Wesley Simmons was listed and his address given in answer to the question submitted as to the ownership of the car which was driven by the plaintiff at the time of the accident.

The second point raised by the defendants is that it was prejudicial error to permit the attorney for the plaintiff to read to the jury a document not in evidence. In support of this the defendants cite Smith v. Johnson, 2 Ill App2d 315, 120 NE2d 58, and Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 57 NE2d 216. In the Smith case, supra, the court held it was error for the defendant’s counsel to challenge plaintiff, in the presence of the jury, to introduce the police report into evidence, since the police report was clearly inadmissible, and defendant’s insistence that it be received in evidence had been repeatedly condemned. In the Paliokaitis case, supra, plaintiffs offered in evidence copies of accident reports made by the police officers. The court there held that the offer of documents was improper because they contained only that which the officers knew about the accident, which they had learned after they arrived at the scene.

Defendants also cite Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE2d 476, which held that it was not within the court’s discretion to permit over objection the reading to. the jury from an unproven transcript.

In this case the plaintiff contends that no document was read to the jury in final argument. In his closing argument the attorney for the plaintiff said, according to the abstract of record herein, “She had to go to her doctor to get an up-to-date report. In his report in 1959, which he told you about, his diagnosis then was she incurred trauma to the back with possible injury to the lumbosacral disc manifested by the irritation of the first sacral nerve on the right side.” During this statement an objection was made and was overruled. The defendants argue that plaintiff’s attorney was reading from the doctor’s medical report which was not in evidence. However, the doctor had testified as to the condition of plaintiff’s back. The portion of the argument objected to was “she incurred trauma to the back with possible injury to the lumbosacral disc manifested by the irritation of the first sacral nerve on the right side.” The testimony of the doctor on direct examination was as follows: “She also incurred injury to the back with possible injury to the lumbosacral disc manifested by irritation of what I felt was the first cervical nerve root on the right side.”

During the oral argument of this case before us plaintiff’s attorney admitted that he had notes in his hand during the argument before the jury, and his purpose was to be as nearly accurate as possible in describing the testimony of the doctor who had treated the plaintiff. From the record before us we cannot say whether the plaintiff’s attorney was reading from the doctor’s report, or what papers he may have held in his hands during the closing argument. The doctor’s report, according to the argument of the plaintiff, was a three page medical report. The portion of the argument objected to covered three printed lines which conform to the testimony of plaintiff’s doctor, as shown above. There was nothing in this portion of the argument which did not substantially conform to the testimony given by the doctor. It is also pointed out that, while the trial judge was in a better position to determine whether counsel was reading from a doctor’s report than is this court, at the trial and on the hearing of defendants’ post-trial motion, the trial court did not apparently agree that any doctor’s report had been read to the jury by plaintiff’s counsel.

For the foregoing reasons the judgment of the trial court must be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, ex rel. Marilyn Perz, Plaintiff-Appellant, v. Hans Schneemilch, Defendant-Appellee.
    Gen. No. 51,566.
    First District, Third Division.
    April 20, 1967.

      Jerome Berkson, of Chicago, for appellant.
    Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In an action to establish the paternity of a child born to plaintiff on January 13,1964, the court entered judgment against defendant and made certain provisions for child support, attorney’s fees and bond. Plaintiff charges error in that the court (1) fixed an inadequate amount for child support; (2) failed to allow recovery of the costs of prosecuting suit, such as the expenses for printing briefs; (3) allowed inadequate attorney’s fees; and (4) fixed the bond at an amount insufficient to assure defendant’s payment of child support.

As to the first contention, the court fixed the awards for child support at $1,500 for the period after the child’s birth and prior to entry of judgment and $35 a week for current support. Plaintiff’s testimony is that the average weekly expense of raising the child is over $57. She bases her computation on the following expenses incurred in the years 1964 and 1965:

1964 1965

Food $ 525.82 $ 1,289.70

Utilities 60.00 75.00

Doctor 47.00 60.32

Miscellaneous 99.12 127.87

Clothing, bedding & furniture 765.25 432.17

Rent or child care 1,200.00 1,500.00

Plaintiff further testified that the child had developed an asthmatic condition which required additional expenses of $20 a month, which had not been considered in arriving at the figure of $57.

On cross-examination the plaintiff testified that she and the infant lived in her parents’ home; that she had paid no rent since the child’s birth, although she had paid $25 a week prior thereto; that she did not work because she could not afford to hire a baby-sitter; that the amounts shown for utilities represented increases in the gas, electric and water bills since the birth of the child and that the sums listed, with the exception of doctor’s bills, were based on her estimates.

Defendant presented no evidence to controvert the plaintiff’s testimony, but testified that he was making support payments for a child of a former marriage and that in recent months his expenses exceeded his income. It is undisputed that defendant’s gross earnings over the three-year period prior to trial averaged $24,000 a year. Plaintiff offered no evidence in rebuttal of that testimony.

The purpose of the Paternity Act, Ill Rev Stats, c 106% (1965), as set forth in §§ 54 and 59, is to provide “support, maintenance, education and welfare” for the child. Such support and the prevention of the child’s becoming a charge on society is the primary concern of the act. Section 17 of the Bastardy Act (Laws 1872), (forerunner of the present Paternity Act); Pease v. Hubbard, 37 Ill 257; McElhaney v. People, 1 Ill App 550; Cornmesser v. Laken, 43 Ill App2d 324, 193 NE2d 337. The statute however specifically limits the expenses recoverable by the mother to those incurred for “pregnancy, confinement, and recovery,” and reasonable attorney’s fees.

Plaintiff testified that she paid no rent nor had she obtained a baby-sitter for the child, but states that expenses for rent and child care attributable to the child are $125 a month. It is obvious that this sum does not represent an actual outlay of funds. She seeks to hold defendant responsible for the rent as part of the support payments, as in a separate maintenance or divorce case. There is no provision in the act for such payment, express or implied, nor does it appear that it was intended to equate the mother of a child with the wife in a divorce or separate maintenance action. Therefore a large portion of the $125 a month figure was erroneously included in plaintiff’s computations. The evidence supports the trial court’s award of $35 per week for current child support payments. With respect to the award made for the prejudgment period, we realize the difficulty of arriving at a precise figure. $1,500 is inadequate for a period of slightly over 120 weeks. The amount should be increased to $2,500, which would average out to a little more than $20 a week. It should be noted that the court retains jurisdiction of the cause and that should the circumstances be altered, plaintiff may petition for an increase in the amount of the support payments.

Plaintiff’s second contention is that she should be reimbursed for her costs in litigating the issue of paternity. The present appeal is the second taken by plaintiff in this lawsuit. On the first appeal this court reversed the judgment for the defendant on the question of paternity and remanded the cause for a new trial. People ex rel. Perz v. Schneemilch, 65 Ill App2d 337, 213 NE2d 50. Plaintiff now seeks to recover $517.15 as costs incurred by her in the prior proceedings. Enumerated in her petition are claims for court reporter’s fees, filing fees, witness fees, and expenses for printing briefs on the first appeal. The amount sought by plaintiff is admittedly over and above the $116 already paid by defendant, as per the bill of costs of this court in connection with the prior appeal. The trial court disallowed plaintiff’s petition on the ground that the Paternity Act does not provide for the items in question. Plaintiff argues that the statute, by providing for the recovery of reasonable attorney’s fees, manifests an intent that the successful plaintiff-mother be reimbursed for all her legal expenses. In Ritter v. Ritter, 381 Ill 549, 46 NE2d 41, the Supreme Court analyzed the background of the law relating to the recovery of costs and expenses of litigation and noted that there was no principle at common law which would permit such recovery. The court said:

“The allowance and recovery of costs rests entirely upon statutory provisions and no liability for costs exists in the absence of statutory authorization. . . . A court of chancery may be vested with a power to exercise a discretion in awarding costs but the power to act must come from a statute and the discretion must be confined to that which is authorized by legislative enactment.” (Emphasis added.) (Pp 552-553.)

The Act provides for the recovery of “reasonable attorney’s fees” and does not allow reimbursement for other costs of litigation, and the trial court properly denied plaintiff’s claim in this respect.

Plaintiff further contends that the compensation awarded her for her attorney’s fees is inadequate. The trial court held that $500 was a reasonable sum considering the time spent in trial and the nature of the lawsuit. Plaintiff’s attorney argues that he spent a total of 93 hours in preparing the post-trial motion following the first trial, in taking the first appeal and in the trial of the case on remandment. He estimated that a reasonable fee would be $5,000. He was supported in this by the testimony of two other lawyers. In determining the amount to be awarded to plaintiff for her attorney’s fees, we think it proper that the time spent in preparation of all phases of the lawsuit be taken into account. Accepting plaintiff’s figure of 93 hours, however, a fee of $5,000 would average over $53 an hour, an excessive sum in a case presenting the simple issue of paternity. In our opinion a fair amount for the work done by plaintiff’s attorney is $1,000.

Plaintiff’s final contention is that the $5,000 bond affords insufficient security to her. From the record it appears that the defendant has never missed making a payment nor has the plaintiff presented any evidence to suggest that he intends to neglect his statutory obligation to support his child. Under these circumstances we conclude that the bond in the sum of $5,000 is sufficient, noting that section 60 of the Paternity Act provides that a bond may be increased by the court when it is “necessary to assure compliance with the order of child care and support. . .

The judgment is affirmed except as to the amounts for child support for the period prior to judgment and for attorney’s fees. The cause is remanded with directions to increase the sum awarded for the prejudgment period from $1,500 to $2,500 and that for attorney’s fees from $500 to $1,000, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment affirmed in part and reversed in part and cause remanded with directions.

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

       Ill Rev Stats, c 106%, § 59 (1965).

       Ill Rev Stats, c 106%, § 59 (1965).


author: MR. JUSTICE McCORMICK

text:
    Louis Pratico, Plaintiff-Appellant, v. Board of Fire and Police Commissioners of the City of Chicago Heights, Illinois, Defendant-Appellee.
    Gen. No. 50,398.
    First District, Fourth Division.
    April 21, 1967.

      Carbonaro & Carbonaro, of Chicago, for appellant.
    L. Louis Karton, of Chicago, and Chris D. Gregory, Corporation Counsel, of Chicago Heights, for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The plaintiff, Louis Pratico, was a detective patrolman of the department of police of the City of Chicago Heights, Illinois. He brought a suit under the Administrative Review Act to review an order of the Board of Fire and Police Commissioners of the City of Chicago Heights, which had discharged the plaintiff without salary on the ground that he was guilty of conduct unbecoming a policeman, in a way to bring discredit to the department. The Circuit Court of Cook County affirmed the findings and decisions of the Board and entered judgment thereon. This appeal is taken from that judgment.

On January 31, 1963, Lester Klinger, a resident of Chicago Heights, found his apartment had been burglarized ; that a television set and loose change had been taken. Later that day Klinger received a call from Marshall Field and Company advising that the credit cards of Klinger and his wife were being misused. He notified the police of Chicago Heights, and Captain Jarecki assigned Officer Louis Pratico to investigate the case. Pratico asked another officer, Frank Grupp, to help him; he instructed Grupp to go to the Klinger home and investigate the burglary while he, Pratico, went to Marshall Field and Company. Klinger had testified that when Grupp came to his home Klinger told him that on the day before the burglary two girls had come to his house to look at an apartment; that one of them said she couldn’t rent it because the bank was closed, but that she would come back that night; that she returned later that night with a man whom Klinger subsequently identified from a photograph as Pratico. Klinger identified the girl as Donna Schmidt.

Grupp testified that he had asked Klinger to come down to sign complaints and warrants charging one Larry Shelton with burglary and forgery (misuse of Klinger’s credit cards), along with Jane Doe warrants, setting out the same charge. He testified that Klinger signed the warrants, and that afterwards Captain Jarecki ordered Grupp to drop the investigation since Pratico had been assigned to it. Grupp stated that he gave the warrants to Pratico and told him that if Donna Schmidt was involved he should bring her in. He further testified that Larry Shelton was subsequently arrested.

Police Chief Howard testified that he had had three conversations with Pratico about the Klinger burglary and that each time Officer Ziegenhorn from the State’s Attorney’s office was present; that in the first conversation on March 18 or 19, 1963, Ziegenhorn questioned Pratico about the burglary and the girl, Donna Schmidt; that Pratico stated he didn’t remember if he knew the girl, and when shown a picture of the girl taken with himself and his brother, he said she looked familiar, and that he was not keeping company with her. Chief Howard further testified that Ziegenhorn had informed him he had information that Pratico had visited Donna Schmidt on several occasions at her home in Monee; that in some instances he went there in a squad car. Chief Howard stated that on March 26 Ziegenhorn asked him to have Pratico at the State’s Attorney’s office on March 27; that the order was issued and given to Grupp to deliver to Pratico; that Grupp reported that Pratico’s wife said he was not at home; that on March 26, Chief Howard entered a suspension order effective March 27, against Pratico. Chief Howard further testified that the last time Pratico appeared for duty was on March 21, at which time he said he was going to consult a doctor; that the doctor had told Howard he had found Pratico’s heart to be all right, but that he was emotionally upset and should rest for a few days. Chief Howard testified that Pratico’s wife called in on the 23rd and said he would not be at work for a few days; that when Pratico was not found at home on the 26th, Howard entered the order of suspension, reasoning that if Pratico was well enough to leave his home he was well enough to report for duty.

Frank Ziegenhorn, a Chicago police officer attached to the State’s Attorney’s office, testified that he had first talked to Pratico on March 19,1963, at which time Pratico said he had taken a girl named Gina to Klinger’s apartment as a favor to a friend. Ziegenhorn said he showed Pratico a photograph which Pratico said was a picture of himself and his brother and a girl who “looked familiar,” but whom he did not know. Ziegenhorn stated that he again interviewed Pratico on March 20, when his partner and Chief Howard were present; that at that time Pratico’s answers were evasive; that he didn’t remember or didn’t know. Ziegenhorn testified that he again interviewed Pratico on March 21; that Pratico said he did not remember where he met Gina; that he did not know a man named Victor Schmidt, and did not remember if he was in the home of Donna Jean Schmidt in Monee; that he did not recall having been in the company of the girl shown in the picture; that he would answer questions about himself but not about Donna Schmidt.

Betty Jean Jackson testified that she lived in Chicago Heights, was acquainted with Pratico and Donna Jean Schmidt; that the girl in the photograph was “Gina, . . . Donna Smith is what I was told was her name.” She further testified that Donna and Pratico were at her home in February and on March 12 and 14.

Stanley Jarecki, a police captain, testified he had assigned Pratico to investigate the Klinger burglary; that the next day he asked Officer Grupp how he got into the case and was told that Pratico got him into it; that Captain Jarecki went to Pratico’s home to serve papers on order of the chief, and found no one at home.

Carol Battenfield testified that she was the mother of Donna Schmidt; that she had become acquainted with Pratico a year ago when he came to see her daughter some two or three times a week; that her daughter had told her the picture in which she appeared with Pratico and his brother had been taken in the Brown Derby. She stated that Pratico picked Donna up sometimes in his own car and sometimes in a squad car; that he usually brought her home around midnight, but there were times that Donna did not come in until morning.

David Battenfield testified that he was the brother of Donna Schmidt and had met Pratico about two years ago in his father’s home where Pratico had come to take Donna on a date; that he saw Pratico in Monee at his mother’s house on Easter Sunday in 1962; that his mother and father were in St. Louis for the weekend; that to the best of his knowledge Pratico and Donna stayed at his mother’s home over that weekend.

Louis Pratico testified that he was married and lived with his wife and five children; that in the course of his work he had occasion to become acquainted with Donna Schmidt; that he saw her about two months prior to the Klinger burglary in connection with an investigation of an abortion case; that through her help five indictments were issued against the alleged abortionist; that the reason he did not talk about Donna Schmidt was that he did not want to divulge her name since she was an informer. He testified that he did cooperate with Officer Ziegenhorn and that he had said the girl in the photograph looked familiar, but that he could not be positive. He stated that he had met Donna Schmidt’s mother once and had met her brother, David Batten-field, in Chicago Heights, but did not remember meeting him in Monee. He further testified that he went to the Klinger house with a girl named Gina, and was doing a friend a favor. He stated that when Miss Jackson testified that he was at her apartment with Donna Schmidt, she lied; that he never went to Miss Jackson’s apartment with Donna Schmidt. He testified that it was not until after his suspension that he heard of the subpoena which was issued to him to appear before the grand jury; that his wife quarreled with him when she learned he had gone to an apartment with the girl; that he became depressed and left his home because he needed peace and quiet; that he did not report to the chief. He further stated that when he went to Marshall Field and Company he was given a description of the girl who had presented Klinger’s credit card, and said the description “could fit Donna Schmidt.”

The Board of Fire and Police Commissioners on April 4, 1963, suspended Pratico for 30 days, pending investigation of the charges. On May 3, 1963, the Board made its findings and decisions which were that Pratico was guilty of conduct unbecoming an officer in ways that brought discredit to the department, in that he was absent from duty without permission, commencing on or about March 27, 1963; that he “failed to cooperate fully with the investigators of the Cook County State’s Attorney’s office in their investigation of the Lester Klinger burglary, all in direct violation of his superior’s orders.”

Pratico thereupon filed a petition for rehearing which was denied on May 29, 1963. On June 17, 1963, he filed a complaint in the Circuit Court under the Administrative Review Act, asking that the orders and decisions of the Board be reversed; that the said Board be directed to find Pratico not guilty of the charges, and that the Board be ordered to restore him to full duty with back pay. The Board filed an answer, incorporating the complete transcript of the proceedings sought to be reviewed, and on November 19, 1964, an order was entered in the Circuit Court determining that the findings and decisions of the Board of Fire and Police Commissioners were not contrary to the manifest weight of the evidence, were supported by substantial evidence in the record, and that they should be affirmed. From that order Pratico took this appeal.

In this court Pratico urged, among other things, that the charges were too vague and indefinite. This was the first time he had raised that defense, and he made no motion for a more specific statement of the charges, nor did he complain at the hearing that he was unable to prepare a defense. In McCaffery v. Civil Service Board of Chicago Park Dist., 7 Ill App2d 164, 129 NE2d 257, the court approved a statement from People v. Chicago, 127 Ill App 118, where it was said:

“Petitioner made no objection to such charges. If they ‘did not state facts sufficient in law to constitute an offense,’ it was his duty then and there to object to them. Not having done so, it was after-wards too late for him to raise that question.”

Also see Sudduth v. Board of Fire and Police Com’rs of City of Rockford, 48 Ill App2d 194, 198 NE2d 705.

In the opinion of this court, considering the fact that no action was heretofore taken by Pratico, the complaint was sufficient.

In Nolting v. Civil Service Commission of Chicago, 7 Ill App2d 147, 129 NE2d 236, the court, referring to all actions brought before a civil service commission to remove police officers, said:

“Discipline, as we have said, is vital or this force of armed men who protect the city can become a haven for bullies officially armed with guns or the instrument of corrupt forces looking for an opportunity to prey on the city’s inhabitants. The Civil Service Act therefore must not be permitted to become a mantle for the corrupt and inefficient. If the court is to substitute its judgment for the judgment of the Civil Service Commission and of the Commissioner of Police as to disciplinary action that should be taken, it would in effect be substituting judicial discipline without responsibility for executive discipline with responsibility. The ultimate effect of such action would be a breaking down of the discipline and morale of the Police Department. Courts must accept the honest judgment of the Chief of Police and the Civil Service Commission, those arms of the executive department charged with administration of the police, with respect to the proper discipline to be enforced when charges have been proved.”

During the trial of the case and before Pratico testified, there was introduced on behalf of the complainant, over the objection of Pratico, Pratico’s application to take an examination on May 20, 1954, for the position of police officer in the City of Chicago Heights. In that application Pratico was asked whether or not he had ever been convicted of or indicted for any crime; his answer was “no.” The complainant also introduced at the same time, over Pratico’s objection, record evidence of an indictment and conviction of Pratico of the crime of larceny in Cook County, together with an order dated October 17, 1951, of the criminal court admitting him to probation for a period of three years. From the record it appears that when Pratico made his application for the police examination he was still on probation, and his answers in the application were palpably false.

In his brief in this court Pratico argued that the introduction of such evidence was improper. If the evidence was improperly admitted the error would not be sufficient to require a reversal in this court.

In Schyman v. Department of Registration and Education of Illinois, 9 Ill App2d 504, 133 NE2d 551, a case in which a certified copy was introduced in evidence of a conviction of certain Kaadts in Indiana for prescribing medicine, which it was argued was similar to medicine sold by Schyman, the Appellate Court held that the conviction records were not sufficiently relevant for admission in evidence. The court said: “The admission of irrelevant evidence in administrative proceedings does not of itself require the reversal of the order of the administrative agency where there was independent probative evidence to support the order.” The case cited and quoted from Sisto v. Civil Aeronautics Board, 179 F2d 47, where it was said: “The admission of irrelevant or incompetent matter before an administrative agency does not constitute reversible error, if there is substantial evidence in the record to sustain the agency’s determination.”

There appears to be no question in the record that Pratico went to the Klinger home in the company of Donna Schmidt; his relationship with her was fully brought out and was not of a character to put a halo on his head. He was evasive as to his contacts with Donna Schmidt, and it could definitely be inferred that his reason for sending Grupp to the Klinger home was that he did not want to be recognized by Klinger as the man who was with Donna Schmidt on the evening before the burglary. He testified that the reason he did not wish to identify her as the girl who went to Klinger’s with him was that in another case some time before, she had acted for him as an informer. This could properly be considered as having no validity.

Pratico admitted in his evidence that he was absent from duty four or five days without permission, and the only reason given for his absence was that he quarreled with his wife about his relationship with Donna Schmidt.

Pratico complained of the conduct of John Cifelli, Secretary of the Board of Fire and Police Commissioners, and stated that Cifelli was an attorney and adviser to the Board. Cifelli did advise the Board during its hearing with reference to the propriety of certain questions and other matters, but there is no indication in the record as we read it that he went beyond his duty in giving such advice. In his brief in this court, Pratico referred to Cifelli as “Lord High Executioner”; considering the subsequent history of Officer Pratico, the reference must be interpreted as an unhappy one.

Pratico in this court complained that he did not get a fair and impartial hearing. In our opinion, the hearing was fair and impartial. He also contended that the findings were against the manifest weight of the evidence. In civil service hearings the rule is that the Circuit Court is authorized to set aside the findings of the administrative agency only if they are against the manifest weight of the evidence, and that this court has no greater right. See Sudduth v. Board of Fire and Police Com’rs of City of Rockford, 48 Ill App2d 194, 198 NE2d 705, and cases therein cited.

We find that the order of the Board and the decision of the Circuit Court are not contrary to the manifest weight of the evidence.

The case was argued in this court on June 22, 1966, and on August 30, 1966, Pratico was slain. On February 14, 1967, his attorney filed in this court a document suggesting the death of Pratico on August 30, 1966, further stating that Pratico left surviving his widow, Jane Pratico, and five children; that Jane Pratico was appointed administratrix of the estate of Pratico; that the present cause of action is the sole asset of his estate; that if the holding discharging Pratico were reversed, the estate might be entitled to moneys for loss of salary, damages, pension and other benefits. A motion was also made that Jane Pratico, administratrix of the estate of Louis Pratico, be substituted in the suit of the deceased against the Board of Fire and Police Commissioners. In 1 CJS Abatement and Revival § 128-b, it is said:

“The death of a party pending appeal abates an action or proceeding which involves merely his personal status and is left with nothing to act on after its object has been accomplished by his death. . . . It is also true where the incumbent of a public office dies while an appeal is pending in a proceeding to remove him from office and he has not been suspended, so that there is no claim on the part of his representatives for loss of salary; but it is otherwise where there has been a judgment of ouster and a right to the emoluments of the office depends on the invalidity of that judgment. . . .
“The death of either party pending an appeal from a judgment in a divorce action abates the action so far as it affects the mere marital status, but not so far as property interests are involved, unless the questions pertaining thereto become moot.”

In Danforth v. Danforth, 111 Ill 236, a divorce action, the argument was held and the case was submitted to the Supreme Court at the September term; on October 18, 1882, George Danforth died. The opinion was filed in the Supreme Court on March 28, 1883, and judgment was entered reversing the decree of the Circuit Court which had found in favor of George Danforth. In order to protect the rights of Danforth’s widow the court entered an order amending the judgment to make it appear as of the September 1882 term.

In the case before us, had there been no claim on the part of Pratico’s wife for loss of salary, the suit would have been dismissed; however, since this claim was made, we feel that the proper proceeding is to decide the case upon its merits. The case having been so decided it is proper for this court to file its opinion nunc pro tunc as of June 22, 1966, and it is so ordered.

The judgment of the Circuit Court is affirmed.

Affirmed.

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