author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Appellee, v. Willie Clark, et al., Appellants.
    Gen. Nos. 50,628 and 50,629.
    First District, Second Division.
    December 20, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.


source: Caselaw Access Project

author: JUSTICE BURKE.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Whitson S. West, Defendant-Appellant.
    Gen. No. 50,772.
    First District, Second Division.
    December 20, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge R. Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Oleta Wolfe, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,936.
    First District, Second Division.
    December 20, 1966.

      David F. Silverzweig, of Chicago, for appellant.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Thaddeus B. Rowe, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This action was brought to recover for injuries allegedly occasioned by the failure of the City of Chicago to maintain a public street in good repair. The jury returned a general verdict for the defendant and judgment was entered on the verdict. Plaintiff appeals.

On February 14, 1958, plaintiff was being driven to work by her husband. The day was cold and there was a light blanket of snow on the ground. The automobile was being driven northward on Essex Avenue toward 75th Street in Chicago. Plaintiff’s husband stopped the automobile at the southwest corner of 75th Street and Essex Avenue, and plaintiff alighted. She proceeded a few steps when she fell on the street. Her husband heard her scream, went to her assistance and called the police. Chicago Police Officer Gerald Weber investigated the occurrence, made a written report and called an ambulance. Plaintiff was taken to the South Shore Hospital where she was given treatment and a splint was put on her left foot. Written reports were made at the hospital by emergency room nurse Ellen Stump and by Chicago Police Officer John Franke. Plaintiff was then taken by ambulance to the American Hospital for further treatment.

Plaintiff testified at the trial in 1965 that the heel of her shoe caught in a hole in the pavement and she fell to the ground, twisting her ankle. She stated she was unable to see the hole due to the blanket of snow which made the ground look even. She further stated she had no prior knowledge the hole was there. Plaintiff denied having given any statements to either of the investigating police officers or to the emergency room nurse at South Shore Hospital.

Plaintiff’s husband testified that when he heard his wife scream and saw her lying on the ground he assumed she had slipped on the ice and that this is what he told both of the investigating police officers. The witness testified that he did not know what actually caused plaintiff’s fall until the following day when he examined the hole at the scene of the occurrence.

Barbara Radousky, a witness for the plaintiff, testified that she was familiar with the area of 75th Street and Essex Avenue at the time of the mishap and that the hole existed for some three months prior thereto. The hole was jagged, some five inches in diameter and some two to three inches deep.

Police Officer Weber testified for the defense. He stated he had no independent recollection of his investigation of the mishap and that he needed his report to refresh his memory. He testified plaintiff told him she had slipped on the ice. He also testified it had been snowing “on and off for a week” prior to the date of the occurrence, and that it was snowing and the ground was covered with ice and snow at the time of the occurrence. Officer Weber’s report was not admitted into evidence.

Officer Franke testified for the defense and likewise stated he had no independent recollection of the occurrence. The officer read from the report which he made at the time he investigated the incident at the hospital and stated plaintiff told him she had slipped on the ice. The report, which was received as evidence over objection of plaintiff, states that the information therein was given by plaintiff.

Mrs. Ellen Stump, the emergency room nurse at the South Shore Hospital, testified for defendant. She stated she had no independent recollection of the incident and that she had to rely on the report made by her at the time plaintiff was admitted for emergency treatment. The witness read from the report and testified that plaintiff stated she fell on the ice at 75th Street and Essex Avenue about 8:30 a. m., injuring her ankle. On cross-examination the witness testified that, at times, a patient’s history is taken from someone other than the patient and that such practice is not uncommon. She further stated that she had no recollection of having taken the report from plaintiff’s husband on this particular occasion. Mrs. Stump’s report was admitted into evidence, apparently over plaintiff’s objection.

Plaintiff maintains it was prejudicial error for the trial court to give Defendant’s Instruction No. 7, over plaintiff’s objection, in that the wording of the instruction singles out plaintiff and places undue emphasis upon certain of her testimony. The instruction reads:

“The credibility of a witness may be attacked by introducing evidence that on some former occasion she made a statement inconsistent with her testimony in this case on a matter material to the issues. Evidence of this kind may be considered by you in connection with all the other facts and circumstances in evidence in deciding the weight to be given to the testimony of that witness.”

The instruction is adapted from IPI 3.01, but employs feminine pronouns where IPI 3.01 employs masculine pronouns.

It is well settled that an instruction is improper which singles out a witness in a case by applying to him a general rule which is applicable to all witnesses in the case. Arnold v. Pucher, 83 Ill App 182; Hoskins v. Zimmerman, 334 Ill App 395, 79 NE2d 531; see also ILP Trial § 200. Defendant’s Instruction No. 7 is apparently directed at the fact that plaintiff made a statement in a pretrial deposition contradictory to certain of her testimony at trial relative to the place where she fell. The use of the pronouns “she” and “her” in the instruction singles out plaintiff and calls attention to the conflicting testimony and for that reason is improper.

Plaintiff also maintains it was error for the court to allow the reports of Officer Franke and nurse Stump into evidence. Officer Franke’s report was used by him to refresh his recollection of his investigation of the occurrence. In addition to the matters contained on the report, the officer testified of his own recollection concerning other matters relating to the investigation. The rules relating to “present recollection refreshed” rather than “past recollection recorded” are therefore applicable and the report should not have been read by the officer from the witness stand nor should it have been admitted into evidence. Hoskins v. Zimmerman, 334 Ill App 395, 79 NE2d 531; Wigmore, Evidence § 763, 3rd ed.

While it is generally true that a witness may testify only to such facts as are within his knowledge and recollection, when he testifies that he made a written report or memorandum of the occurrence at or near the time of its happening, or that such report or memorandum was made at his direction for the purpose of preserving the memory of the occurrence, but that upon examination of it he has no independent recollection of the matter contained therein except that he knows it is correct, then such report is admissible into evidence. See Koch v. Pearson, 219 Ill App 468, 472; Diamond Glue Co. v. Wietzychowski, 227 Ill 338, 344, 81 NE 392; People v. Harrison, 384 Ill 201, 206, 51 NE2d 172.

The hospital report of nurse Stump was used solely as a record of her past recollection. She verified the report, read from it while on the witness stand and testified to nothing concerning the mishap from her own memory. The hospital report was properly admitted into evidence. Waring v. F. W. Woolworth Co., 32 Ill App2d 7, 176 NE2d 700; Stanton v. Pennsylvania R. Co., 32 Ill App2d 406, 178 NE2d 121; Wigmore, Evidence § 754, 3rd ed.

With regard to plaintiff’s contention that defense counsel engaged in certain prejudicial argument and conduct during closing argument, we feel this will not occur at the retrial of this cause. It is unnecessary to consider the other arguments raised in plaintiff’s brief.

The judgment is reversed, and the cause is remanded with directions to sustain the motion for a new trial and for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE BRYANT

text:
    Alfred A. Muhlbauer, Plaintiff, v. J. M. Kruzel, Individually and d/b/a J. M. Kruzel Certified Food Mart, Defendant. J. M. Kruzel, Individually and d/b/a J. M. Kruzel Certified Food Mart, Third-Party Plaintiff, Appellant, v. Wilson and Company, Inc., a Foreign Corporation, Third-Party Defendant, Appellee.
    Gen. No. 50,966.
    First District, Second Division.
    December 20, 1966.

      Morrill and Koutsky and Robert A. Sprecher, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (John M. Moelmann, D. Kendall Griffith and Donald W. Garlinger, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook County dismissing the amended third-party complaint of appellant, J. M. Kruzel, doing business as J. M. Kruzel Certified Food Mart against third-party defendant-appellee Wilson and Company, Inc.

Briefly, the facts of this case are as follows: On September 25, 1964, the plaintiff, Alfred A.' Muhlbauer, filed a complaint alleging that the appellant Kruzel owned and operated a retail grocery at 613 W. 31st Street in the City of Chicago; that on or about September 29, 1962, the appellant had hired, caused or permitted a clown (a giant of about eight feet in height) to distribute autographed photographs to the public while standing on the public sidewalk in front of appellant’s store for the purpose of promoting business; and that the plaintiff was injured while on the sidewalk and exercising due care in the ensuing large crowd which gathered to see the giant. Plaintiff further alleged in his complaint that the appellant was guilty of one or more of the following negligent acts or omissions:

“a. Carelessly and negligently hired, caused or permitted such person to dress as a clown and distribute autographed photographs to the public on said public sidewalk.
“b. Carelessly and negligently caused a crowd to gather on said public sidewalk which prevented the public from standing and/or walking freely, safely and unobstructed thereon.
“c. Carelessly and negligently failed to maintain proper supervision over and/or peace and order among the crowd which gathered on said public sidewalk.
“d. Carelessly and negligently failed to provide reasonable precautions for the personal safety of the public standing and/or walking upon and along said public sidewalk.
“e. Carelessly and negligently failed to maintain an area on said public sidewalk for the public to stand and/or walk upon and along freely, safely and unobstructed.
“f. Carelessly and negligently failed to give any warning to the public standing and/or walking upon and along said public sidewalk of the immediate danger and threat to their personal safety.”

In his answer appellant admitted only that he owned the store and that the clown was in front of the store distributing photographs. Appellant denied that he hired or caused the clown to appear and distribute photographs or that he had caused anything to be done for the purpose of promoting the business of retail grocery and food mart.

On March 29, 1965, appellant filed an amended third-party complaint against appellee, Wilson and Company, incorporating the complaint and answer and alleging that if the appellant performed any of the acts alleged in the complaint which were denied said acts were passive acts only and not active. Appellant further alleged that, “The third-party defendant (appellee here), Wilson and Company, Inc., a foreign corporation, did cause and had an agent, employee or servant, who was a giant of considerable height and dressed in a costume simulating a giant known a ‘Corn King Giant’ who was at said time and place standing in front of the premises occupied by the third-party plaintiff, and because of his unusual size and attire did cause a considerable crowd to gather in front of the premises occupied by the third party plaintiff that the third-party defendant was at said time and place in the process of promoting a product manufactured and distributed by the third-party defendant, and whose presence at said location was not at the request and invitation of the third-party plaintiff”; that the appellee was guilty of one or more of the six acts enumerated in the complaint; that if any injuries occurred they were caused by the active wrongful acts of the appellee, Wilson and Company; and that if the appellant were to be found liable the appellee owes appellant Kruzel indemnification for any amount which appellant may owe to the plaintiff, Alfred A. Muhlbauer.

Wilson and Company, the third-party defendant-appellee, moved to strike the amended third-party complaint which was granted by the trial court and which is the subject of this appeal.

Third-party practice is a relatively recent development in Illinois practice. The Illinois statute, c 110, §25(2), Ill Rev Stats (1965), provides in part as follows:

“Within the time for filing his answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. . . . Nothing herein applies to liability insurers or creates any substantive right to contribution among tortfeasors or against any insurer or other person which has not heretofore existed.”

In the joint committee comments which follow this statute it is noted that our practice is similar to that of the federal courts under Rule 14, Federal Rules of Civil Procedure. The federal courts have not hesitated to dismiss third-party complaints when the third-party complaint does not state a cause of action. Shapiro v. Gulf M. & O. Ry., 256 F2d 193. Our courts have reached the same conclusion. Shulman v. Chrysler Corp., 31 Ill App 2d 168, 175 NE2d 590.

We are faced with a situation where on the face of the complaint, the existence of negligence or of a duty on the part of either the appellant or the appellee appears to be slight, but where, if there is negligence, it appears as if the appellee would have been the more logical subject for a lawsuit. It would seem that this would have been an appropriate situation for the appellant to have made a motion to strike the complaint under section 45 of the Civil Practice Act. However, in spite of the possibility that the appellant may eventually be held liable, we agree with the finding of the trial court that the amended third-party complaint was properly stricken for failure to state a cause of action for indemnity. From a reading of the cases, it seems that where indemnity is allowed in the absence of an express contract to indemnify, the person seeking indemnity has been placed in a position of potential liability by the act or omission of the person from whom he is seeking indemnification. Moreover, the acts of another do not impose liability on one unless some relationship between the parties or some circumstance imposes a nondelegable duty upon the passive party. Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182; D’Amico v. Moriarty Meat Co., 47 Ill App 2d 63, 197 NE2d 445; Blaszak v. Union Tank Car Co. 37 Ill App2d 12, 184 NE2d 808.

And, if a person is not under a nondelegable duty or is liable because of his own act or omission, he is precluded from seeking indemnity. Bohannon v. Joseph T. Ryerson & Son, Inc., 16 Ill App2d 402, 148 NE2d 602; Yankey v. Oscar Bohlin & Sons, Inc., 37 Ill App2d 457, 186 NE2d 57; Shulman v. Chrysler Corp., supra.

The amended third-party complaint demonstrates no relationship or circumstance which creates a nondelegable duty on Kruzel. On its face the amended third-party complaint alleges that a clown employed by Wilson caused a crowd to gather on the public sidewalk in front of the Kruzel store and caused injury to the plaintiff who was pushed, shoved and struck by the crowd while attempting to use the public sidewalk. Kruzel did not employ the clown or invite or request his presence. The occurrence did not occur on appellant’s property, but on the public sidewalk, nor was the occurrence caused by a condition existing on Kruzel’s premises or by an activity being carried thereon. There is no allegation that the appellant is subject to liability under a statute or ordinance. Nor is any nondelegable duty imposed on appellant by statute. Kruzel has not been exposed to liability because of a defective product supplied by appellee.

The cases cited by Kruzel are not in point, as they stand for the proposition that the indemnitee was under a nondelegable duty to the injured person and was exposed to liability by the act or omission of the indemnitor. In both D’Amico v. Moriarty Meat Co., supra, and Blaszak v. Union Tank Car Co., supra, the occurrence involved the property of the indemnitee, and the indemnitee was exposed to liability by an act or omission of the indemnitor who was on or was using the property. In Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346; Boston v. Old Orchard Business Dist., Inc., 26 Ill App2d 324, 168 NE2d 52; Rovekamp v. Central Const. Co., 45 Ill App2d 441, 195 NE2d 756, the indemnitees were all subject to a nondelegable duty under either the Structural Work Act or the Federal Employers’ Liability Act and were exposed to liability under these statutes by the acts or omissions of the indemnitors. And in Suvada v. White Motor Co., supra, the indemnitee was the supplier of a product and had a nondelegable duty to persons injured because of defective products which it supplied.

We reiterate that the amended third-party complaint contains no facts from which it can be concluded that the appellant had a nondelegable duty which exposed him to liability for acts or omissions of appellee, Wilson. For that reason the order of the trial court dismissing the amended third-party complaint is affirmed.

Order affirmed.

LYONS and BURKE, JJ., concur.


author: JUSTICE BUEKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack Kamsler, Defendant-Appellant.
    Gen. No. 51,057.
    First District, Second Division.
    December 20, 1966.
    Rehearing denied January 10, 1967.

      Jack Kamsler, pro se, of Chicago, appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Fiaran and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BUEKE.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Appellee, v. Wayne Wesley, Appellant.
    Gen. No. 50,767.
    First District, Third Division.
    December 22, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from judgments resentencing the defendant to the penitentiary pursuant to an order of the Supreme Court in a prior appeal. People v. Wesley, 30 Ill2d 131, 195 NE2d 708 (1964). In 1961 the defendant, who was 16 years old at the time of the trial, was found guilty on five separate indictments and sentenced as follows:

Indictment No. 61-353 — Rape.....Life Imprisonment.
“ “ 61-354 — Armed Robbery.....10 Years to Life.
“ “ 61-355 — Assault with Intent to Murder....................5 to 10 years.
“ “ 61 — 356—Rape...............35 years.
“ “ 61-357 — Armed Robbery......5 to 20 years, (to run consecutively to the first four sentences).

The statute in effect at that time required that defendants under the age of 17 be committed to the Illinois Youth Commission for the offenses of armed robbery and assault, but it permitted sentencing to the penitentiary for the crime of rape. The sentences imposed by the trial court in Indictments No. 61-354, 61-355 and 61-357 were therefore erroneous. On appeal to the Supreme Court the State confessed error and the court reversed all five judgments and remanded the cause to the trial court for “proper sentencing.” People v. Wesley, supra. In 1964, when the defendant was 19 years old, the trial court resentenced him to the penitentiary on the charges of rape, as in 1961, and committed him to the Youth Commission on the other charges. In 1963,. however, the law had been amended to provide that offenders under the age of 17 for boys and 18 for girls should be committed to the Youth Commission regardless of the nature of the crime. Defendant now contends that the trial court should have resentenced him to the Youth Commission on all five charges. He further contends that as the limit of age for sentencing to the Youth Commission is now 21 (Ill Rev Stat, ch 23, Sec 2523 (1965)) and as the defendant is now over 21, the court has no power to do anything but discharge him.

The first question is whether the court acted properly in applying the law as it existed at the time of the original trial or whether it was bound by the statute as amended. In People v. Hansen, 28 Ill2d 322, 192 NE2d 359, the court dealt with this problem, but the facts differed in that the judgment had been entered before the new law took effect. The court stated, at 341:

“Judgment and sentence here were pronounced prior to the effective date of the new Code, which incorporates by reference section 4 of the Statutory Construction Act, (Ill Rev Stat, 1961, chap 38, 34-3,) which provides that a punishment mitigated by a new law is applicable only to judgments after the new law takes effect. Ill Rev Stats, 1961, chap 131, par 4.”

The judgments in the instant case having been rendered after the amended statute had become effective, the trial court should have applied the new law and sentenced the defendant to the Youth Commission for all of his offenses.

The State points out that defendant was 19 years old at the time of resentencing and therefore was too old to be sent to the Youth Commission. In People v. Carr, 23 Ill2d 103, 177 NE2d 361, the trial court sentenced to the penitentiary an offender who was 17 years old at the time of the trial, but only 16 years old when the crime was committed. The Illinois Supreme Court reversed the sentence and remanded the case with directions to commit the defendant to the Youth Commission, despite the fact that at the date of filing of the opinion the defendant was almost 19 years old. The court said, at 105:

“The purpose of the Youth Commission is to reform the young offender, and that may still be accomplished although the defendant is a year older on the date that he comes under its care.”

It would therefore have been proper for the trial court in the case before us to resentence the defendant to the Youth Commission, although had he been 19 at the time of the trial, he would have been too old to receive such sentence.

We are faced with the argument, however, that defendant is now over 21 years of age, too old to be sent to the Youth Commission even on remand. Defendant’s position, to summarize it here, is that he should have been sent to the Youth Commission at the time of re-sentencing, but that the time is now past when he may be so committed and therefore this court has no alternative but to release him outright. In People v. Carr, supra, the court said, at 105:

“We think that it is manifest that the legislature did not intend ‘that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.’ (Bozza v. United States, 330 US 160, 166, 91 L Ed 818.) The question is whether the objectives of the Sentence and Parole Act require that this type of error should be held to free the defendant entirely from the corrective processes of the State. In different circumstances we have held that an error in sentencing can be corrected by imposing the sentence that should have been imposed, . . . and we think that should be done here.”

The proper solution in the case before us is to commit the defendant to the Illinois Youth Commission. The statute with respect to such matters provides that upon termination of control by the Commission, the defendant will immediately become subject to the Department of Public Safety, which will review his status and that the Commission shall “hold such person subject to the order of such department. . . .” (Ill Rev Stats, c 23, § 2523 (1965).)

The judgments in Indictments Nos. 61-353 — Rape, and 61-356 — Rape, are reversed and the cause is remanded with directions to commit the defendant to the Illinois Youth Commission.

Judgments in Indictments Nos. 61-353 and 61-356 reversed and causes remanded with directions.

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

       Ill Rev Stats, ch 38, § 801 (1959).
      “801. Sentence for Misprision of Treason, Murder, Voluntary Manslaughter, Rape or Kidnapping, — Parole.)
      “§1. In all cases where any person, male or female, over ten years of age, shall be charged with . . . rape . . . and . . . the case is tried by the court, without a jury . . . and the court shall impose imprisonment as a punishment, the court shall fix a definite term of imprisonment, and the court in each case, shall fix the place of confinement. ... In every such ease of imprisonment, the court shall sentence the defendant to the penitentiary, unless the defendant is a female. . . .
      “803. Commitment — Penitentiary—Illinois State Reformatory or State Training School for Boys — Transfer—Youth Commission —State Reformatory for Women.)
      “§ 3. Except for the crimes enumerated in Section 1 of this Act [Section 801 of this chapter], every person, male or female, over ten years of age, who shall be adjudged guilty of felony, or other crime punishable by imprisonment in the penitentiary, . . . shall in all cases, except as herein otherwise provided in clauses one and two, be sentenced to the penitentiary, and the court imposing sentence shall fix the minimum and maximum limits of duration of imprisonment. . . . Provided,
      “Clause 1 . . . Every male person under the age of 17 years adjudged guilty after December 31, 1953, of any offense enumerated in this Section shall be committed to the Youth Commission instead of the penitentiary.”

       Code of Criminal Procedure, 1963, effective January 1, 1964. Ill Rev Stats, ch 38, § 119-2
      “(c) All male persons under 17 and females under 18 years of age sentenced to imprisonment shall be committed to the Illinois Youth Commission.”


author: JUSTICE ATTEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Eugene Merrill, Defendant-Appellant.
    Gen. No. 66-91.
    Second District.
    December 27, 1966.

      William N. Stone, of Sterling, for appellant; Henry S. Dixon, State’s Attorney, of Dixon, for appellee.
   Opinion by

JUSTICE ATTEN.

Not to be published in full.


author:
MR. JUSTICE DAVIS
      MORAN, P. J.,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Paluch, Defendant-Appellant.
    Gen. No. 66-60M.
    Second District.
    December 27, 1966.

      Anna R. Lavin and John J. Cogan, both of Chicago, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, and Kevin P. Connelly, Assistant State’s Attorney, both of Wheaton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Michael Paluch, was charged, in the Circuit Court of the 18th Judicial Circuit, DuPage County, with attempting to practice barbering without a certificate of registration as a barber in violation of Ill Rev Stats 1965, ch 16%, par 14.92 (b) (1). The case was tried before the court without a jury and the defendant was found guilty as charged and a fine in the sum of $25 was imposed. The defendant contends that the evidence was not sufficient to sustain the judgment.

On November 5, 1965, Ernie Pinkston, an agent of the barber’s union, went to a barber shop located in Glen Ellyn. It was 9:00 a. m. and the shop was not yet open. He then saw the defendant unlock the rear door and enter the shop. Shortly thereafter, he went to the front door and asked the defendant if the shop was open. The defendant unlocked the door, admitted Pinkston, walked over to the barber chair, put on his smock and offered the chair to Pinkston. The defendant had his own barber tools — clipping shears, razors and combs.

Pinkston then showed the defendant his business card and asked to see his license. The defendant twice motioned to a particular license which, in fact, was not his. No one else was in the shop at the time. When later asked if he worked at the shop, the defendant answered “yes” and admitted that he had no license.

Both the defendant and the State refer to the Criminal Code of 1961, Ill Rev Stats 1965, ch 38, par 8-4 (a) with reference to the elements necessary to establish the offense of an “attempt,” which provides:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”

Two elements must be present to constitute an attempt: (1) an intent to commit a specific offense, and (2) an act which is a substantial step towards its commission. The defendant contends that all that can be shown by the record in this case is a mere preparation to do something, but that no act constituting a substantial step toward barbering was committed. See: The People v. Woods, 24 Ill2d 154, 158, 180 NE2d 475 (1962).

As pointed out in the Committee. Comments to par 8-4 of the Criminal Code of 1961 (Smith-Hurd Ann St ch 38 sec 8-4, p 357), the determination of when the preparation to commit an offense ceases and the perpetration of the offense begins, is a troublesome problem. The distinction between the preparation and the attempt is largely a matter of degree, and whether certain given conduct constitutes an actual attempt is a question unique to each particular case.

In order to constitute an attempt, it is not requisite that the act of the defendant is necessarily the last deed immediately preceding that which would render the substantive crime complete. People v. Sullivan, 173 NY 122, 65 NE 989, 992 (1903). In Commonwealth v. Peaslee, 177 Mass 267, 59 NE 55 (1901), Mr. Justice Holmes, as Chief Justice of the Supreme Judicial Court of Massachusetts, discussed the considerations necessary in determining whether there were sufficient acts to constitute an attempt to commit an offense under circumstances where further acts were required to perpetrate the offense. He there noted that the acts may then be nothing more than preparation to commit an offense which is not punishable, but also stated that given preparations may constitute an attempt, the determining factor being a matter of degree. As illustrative of this comment, his opinion at page 56 states:

“If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including, among other things, the apprehension which the particular crime is calculated to excite.”

The crux of the determination of whether the acts are sufficient to constitute an attempt really is whether, when given the specific intent to commit an offense, the acts taken in furtherance thereof are such that there is a dangerous proximity to success in carrying out the intent. In Hyde v. United States, 225 US 347 (1911), Mr. Justice Holmes, in his dissenting opinion, at pages 387 and 388, adequately delineates the distinction between the mere preparation to commit an offense and an attempt to perpetrate the offense, in these words:

“But combination, intention and overt act may all be present without amounting to a criminal attempt— as if all that were' done should be an agreement to murder a man fifty miles away and the purchase of a pistol for the purpose. There must be dangerous proximity to success. But when that exists the overt act is the essence of the offence.”

The language of par 8-4 of the Criminal Code, stating that there must be a substantial step toward the commission of the offense indicates that it is not necessary for an “attempt” that the last proximate act to the completion of the offense be done. In addition, the Illinois Supreme Court, has likewise considered this problem. In The People v. Woods, supra, at page 158, it stated:

“Mere preparation to commit a crime, of course, does not constitute an attempt to commit it. We feel however that an attempt does exist where a person, with intent to commit a specific offense, performs acts which constitute substantial steps toward the commission of that offense.”

The defendant, who conceded that he worked at the barbershop, was the only person there. He had a key and unlocked the shop. He had barber tools. He had a fraudulent license which was posted near the barber chair. He admitted Pinkston to the shop, put on his smock — as it was referred to by the witness — and motioned him to the chair. At this point the defendant was precluded from barbering without a certificate of registration, only by the fact that the witness showed the defendant his business card and did not get into the chair. These facts are sufficient to establish the defendant’s attempt to violate the statute, as charged.

The defendant argues that barber tools need not be used exclusively for barbering, and that there is nothing to establish that he had a specific intent to practice barbering. In view of the foregoing facts, we find it unbelievable that the defendant had any intent other than to barber and to use the barbering tools, chair and shop for that purpose.

The acts of the defendant were not of such serious character and consequence that he could be expected to feel genuinely apprehensive about what he was doing. The degree of proximity to the actual commission of a crime necessary for there to be an attempt is, in part, determined by the apprehension which the particular crime is calculated to excite. The greater the apprehension, the greater the likelihood that a would be offender will not follow through with his intended plans. Inasmuch as the offense involved was only a misdemeanor and the penalty inconsequential, there was no cause for serious apprehension on the part of the defendant in connection with the commission of this particular offense, and it was inconceivable that at this late moment he would repent and alter his course of conduct out of fear or concern. He had then taken substantial steps toward the commission of the act of barbering without a certificate of registration. His intention and overt acts resulted in conduct in the very close proximity to the commission of the offense and constituted an attempt.

We believe that the trial court was warranted in finding, on the facts here recited, that the defendant had taken substantial steps to commit the act of barbering. Its findings and conclusions are not against the manifest weight of the evidence, — an opposite conclusion is not clearly evident. Isham v. Cudlip, 33 Ill App2d 254, 272, 179 NE2d 25 (1962); and Rude v. Seibert, 22 Ill App2d 477, 483, 161 NE2d 39 (1959). Under such circumstances, a reviewing court will not disturb a finding of fact made by the trial court. Consequently, the judgment of the lower court is affirmed.

Judgment affirmed.

SEIDENFELD, J., concurs.

MORAN, P. J.,

dissenting:

I agree with the majority opinion up to the point where it holds that the defendant was guilty of certain acts which constituted a substantial step toward the commission of the offense charged. It is this facet of the case alone with which I disagree.

While it is true that the distinction between the preparation and the substantial step toward the commission of an act, is one of degree, and must be determined by the circumstances of each case, nevertheless, I believe the facts in the case at bar are insufficient to establish the act which constitutes a substantial step toward the commission of the offense.

The majority opinion relies upon, among others, The People v. Woods, 24 Ill2d 154, 158, 180 NE2d 475 (1962); however, in that case the defendant commenced toward performance of the act by giving the complaining witness a sedative, although not taken by her, nevertheless it was directed toward her. There was, in addition, the fact that the defendant had received a fee for services to be rendered; the fact that instruments needed to perform the operation were in a pan on the stove; and the fact that the complaining witness stated she was ready and began to remove her clothing.

In the case at bar, while there is no doubt that the necessary intent was present, still there is no evidence that the defendant took a “first step” toward commission of the intended crime against Pinkston, the complaining witness. Pinkston, the only one present other than the defendant at the time of the alleged “act,” testified that the defendant unlocked the barbershop door, walked back to the barber chair and put on his smock. He further testified that he, Pinkston, walked over and set his briefcase down and the defendant “offered me to get into the chair; at that, I handed him my business card.” Thereafter, Pinkston looked around to see where his license was but did not see it. In addition, the defendant had his own barber tools present.

This is the only evidence offered to establish the act which together with the intent is a necessary element to constitute the offense of an “attempt.” I would concede that if Pinkston had sat in the barber chair, as offered, and an overgarment placed upon him, then it could be said that a substantial step toward the commission of the offense charged had taken place — even though not one hair was clipped from his head. However, this is not the evidence. The best that can be said of the evidence adduced in this case toward the charge of attempting to practice barbering without a certificate of registration as a barber, is that the defendant started preparing himself but never got to the point of preparing the person against whom the attempt was to have been made. Therefore, I must, and do, dissent from my learned colleagues.


author: MR. JUSTICE ENGLISH

text:
    La Salle National Bank, Administrator of the Estate of Johnetta Spearman, Deceased, Plaintiff-Appellee, v. Jacob Feldman, et al., Defendants-Appellants.
    Gen. No. 49,935.
    First District, Fourth Division.
    December 28, 1966.

      Meyer, Gorov, Feder & D’Amico and Orner & Wasserman, of Chicago (Norton Wasserman, of counsel), for appellants.
    Overton, Marks & Schwartz, of Chicago (George W. Overton and Harry Goiter, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal by defendants from a judgment for $15,000 in favor of plaintiff as Administrator of the Estate of Johnetta Spearman, Deceased, a child of less than two years of age, who was fatally injured in a fire which occurred in an apartment rented by defendants to Johnetta’s parents. Plaintiff’s theory of the case is that defendants were negligent in failing to provide and maintain an adequate electrical system in the building, thereby allowing the condition which caused the fire and resulting death. Defendants contend that plaintiff’s evidence failed to prove any negligence on their part and that, consequently, the trial court’s refusal to direct a verdict for defendants constituted reversible error.

We shall first consider the testimony of deceased’s mother. In August, 1959, she rented a three-room first floor rear apartment in a building jointly owned by defendants. The building was three stories high and was divided into twelve apartments. On November 13, 1959, at about 9:00 p. m., Mrs. Spearman put her three children to bed, but they did not go to sleep right away. She then turned out all the lights in the apartment because she was going to visit with Mildred, a neighbor, and she told this to Lorenzo, her three-year-old son. Mildred lived in a building located a short distance from the defendants’ building, only a backyard separating the two buildings. A few minutes after Mrs. Spearman arrived at Mildred’s apartment, she heard Lorenzo come up the stairs crying. As Mrs. Spearman stepped out of Mildred’s apartment to take Lorenzo home, she smelled smoke and could see flames through her bedroom window across the yard. She immediately ran downstairs and across the yard to her own apartment. She found the deceased in the kitchen in a badly burned condition. She was able to assist her other child to safety. Deceased was taken to the County Hospital and died shortly thereafter.

There were no eyewitnesses to testify as to the origin of the fire. Plaintiff therefore called an expert witness to give his opinion as to the cause of the fire, and it is on his testimony that plaintiff’s case must stand or fall. Florian Kaitis testified that he was a duly licensed architect; that his training and experience included a period of employment by the Department of Buildings in the City of Chicago; that his duties during such employment included making inspections of fires and hazardous buildings.

Kaitis then testified concerning the instant case. Three days after the occurrence, at the request of plaintiff, he visited the premises. His examination of the interior of Mrs. Spearman’s apartment revealed that the fire had started somewhere in the bedroom. He observed that at about the center of the north wall of the bedroom a piece of armored cable was hanging down and apparently had been cut off recently, since it had not been subjected to the fire. In the basement of the building he observed that the fuse box was located in a space almost directly below the Spearman bedroom. The fuse box contained holders for twenty-eight separate fuses, and there was a legend on the door of the fuse box indicating which fuses served which apartments. Of the twenty-eight fuse holders, or sockets, twenty-seven had fuses in them, while one was empty. He next located the fuse switch which the legend indicated served the Spearman apartment. The first fuse socket was empty, and the other held a fifteen-ampere fuse which he removed. Behind this fuse he found a penny with three burn marks on its back and a burn mark on its rim. Such burn marks are typically caused by the short-circuiting of a fuse holder at a time when there is severe overcurrent. At least fifty amperes of current would be necessary to cause such markings.

Continuing with Kaitis’ testimony, he returned to the bedroom to look for any electrical wires that might be there. He found two such wires, one a telephone wire and the other a flexible lamp cord. The latter was composed of pieces of wire spliced together. It had been subjected to much heat and at one point of the cord some strands of wire were fused together. The general cause of such fusing is a short, which did, in fact, exist at the place of fusing of the subject wire. Kaitis then testified that the purpose of a fuse is to prevent the circuit or wire from overheating; that if something happens to cause overheating of the wire, the fuse is supposed to burn out and thus stop the current from flowing; that if a penny is placed behind a fuse, the fuse becomes useless, the current flows directly through the penny instead of the fuse, and the burning out of the fuse does not cut off the accelerated flow of current.

Kaitis was next asked whether a safer fuse box arrangement could have been used by defendants. He answered that a Type-S fuse is a safer fuse than the E-base fuse used by defendants, since it consists of an adapter which fits into the fuse holder, and once the adapter is installed it cannot be removed without damaging the fuse. Kaitis testified further that a penny could not have been inserted in an S-type fuse because it would accommodate only an object which could be manipulated over the sides to make contact with the side clips to produce a short circuit. He said that S-type fuses were in general use in the City of Chicago on the date of the occurrence.

■ On cross-examination, Kaitis admitted that the penny could have been placed in the fuse box during the three days after the fire and before his examination; that as to the lamp cord, the only way he could tell the wire had been shorted was from the fusing of some of the wires, and that there would be nothing ordinarily present in the apartment that would cause sufficient heat for such fusing. Kaitis would not say that the short circuit in the cord definitely caused the fire, but, instead, conceded that the fire could have been caused by a child playing with matches. Indeed, he said, “I do not know what caused the fire.” In addition, Kaitis admitted that he relied on the fuse-box legend and never actually checked to make sure that the fuse and the penny he examined were in the box that serviced the Spearman apartment.

The remainder of the material testimony was supplied by defendants’ witnesses. Edward M. Crowe testified that he is a Captain in the Chicago Fire Department and Acting Battalion Chief; that he has been with the Fire Department for twenty-one years and was present at the fire in question, which was a fast-spreading fire with intense heat — definitely hot enough to burn the insulation off wire and melt the copper wire; that when he arrived, he found the bedroom to be the hot spot where the fire had started; that he thoroughly checked the electrical installations, the wiring of the building, lamps, lamp cords and plugs in the wall, and was unable to determine the cause of the fire. He was at the scene one hour and thirty-five minutes. On further examination, Crowe testified that the first thing he checks at a fire such as this is the fuse box; that the placing of a penny behind a fuse is a common cause of fires; that he immediately checked the fuse box in the basement of defendants’ building, and if he had found a defect of any kind, he would have put it down in his report; that he made no mention of a defect in the fuse box in his report which stated “undetermined cause.” His conclusion was made in consultation with Chief Murphy who was also at the scene and had 40 years’ experience in the Fire Department.

John W. DiTambell, an electrical contractor and licensed electrician, testified that in November of 1958 Mr. Feldman hired him to do some electrical work on the premises in question and, specifically, to remedy certain defects listed in a letter from the City Electrical Department. DiTambell stated that he did everything that was required by the letter; that he put fuses in the fuse box which was a kind in use in many buildings of that type in 1959.

Donald Coutts, an electrical inspector for the City of Chicago, testified that he inspected the premises in March of 1959 pursuant to a reinspection concerning the letter of violations which had been sent to the premises in October, 1958. He found that all the violations listed in the letter had been corrected. Coutta testified that he again inspected the premises within a week or two after the fire and found no violations with regard to the fuse box.

The errors assigned by defendants are as follows: (1) Defendants’ motion for directed verdict should have been allowed; (2) the testimony of Florian Kaitis should not have been admitted since it was based solely on knowledge obtained through post-occurrence observation; and (3) portions of the closing argument by plaintiff’s counsel were inflammatory and so prejudicial as to require a reversal.

The primary question raised on this appeal is whether there is any competent evidence to support the allegation that defendants were negligent. If not, the trial court erred in overruling defendants-’ motion for directed verdict. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275. Such a motion presents the fundamental question of whether the record contains any evidence which, in itself, and, taken with all its intendments most favorable to the opposing party, tends to prove the essential elements of that party’s case. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847; Gorczynski v. Nugent, 402 Ill 147, 83 NE2d 495. We turn, then, to a comparison of plaintiff’s allegations, with the evidence introduced.

The major part of plaintiff’s case is predicated upon five separate conclusions expressed in the testimony of its expert witness, Florian Kaitis, who examined the premises three days after the fire. The first conclusion testified to by Kaitis is that of the existence of a short circuit in the lamp cord in the Spearman bedroom. It is obvious that the existence of a short circuit in the lamp cord, in and of itself, does not establish negligence on the part of defendants. The short circuit may have occurred before or after the fire. Moreover, there is no evidence in the record to explain how the lamp cord became a part of the electrical system of the Spearman apartment. For all that appears in the record, it is possible, if not probable, that Mrs. Spearman herself, rather than defendants, purchased or installed the lamp cord. Further, Kaitis would not say directly that a short circuit in the lamp cord had caused the fire in the Spearman apartment.

The second and third conclusions of plaintiff’s expert were that such a short circuit as was evident in the bedroom lamp cord would have caused sufficient heat to produce the fusing of the wires; and that the heat from the fire which raged through the bedroom of the apartment would have been inadequate to cause the fusing of the wires. (This latter point was controverted by the testimony of Captain Crowe, as recited above.) Again, however, it is clear that whether or not a short circuit in the lamp cord did, in fact, cause the fire is not, in itself, any evidence of defendants’ negligence.

A fourth conclusion of Kaitis was that the burn marks which he found on the penny three days after the fire must have been caused while the penny was in back of a fuse at a time when there was a severe overcurrent. In an attempt to make this meaningful as evidence of negligence, he coupled it with a fifth conclusion that at the time of the fire there existed an inexpensive S-type fuse system which would be difficult or impossible to short-circuit. From this testimony, plaintiff contends that defendants are guilty of negligence in inadequately protecting the electrical system by virtue of their failure to install the allegedly safer S-type fuse to replace the E-base fuse. Neither the record nor common experience sustains plaintiff’s contention that defendants’ retention of the E-base fuse system at a time when the allegedly safer S-type fuse system was on the market is evidence of defendants’ negligence. DiTambell testified that on the date of the fire it was common to use E-base fuses in buildings similar to defendants’ and that E-base fuses were in common use in Chicago. Kaitis, himself, testified as follows: “I would say that in November of 1959 there were probably hundreds of thousands of those E-base fuses in the City of Chicago and that there are still being used hundreds of thousands of E-base fuses.” He also conceded that in his opinion the S-type was only somewhat safer, since it also could be shorted out almost as easily as the E-type by use of a piece of ordinary aluminum foil, copper wire, a thin hairpin, etc.

It would be contrary to the definition of negligence for us to hold that failure to abandon an electrical fuse system which is in extensive use throughout the City of Chicago constitutes a negligent omission. The fact that a relatively short time before the fire the Electrical Inspection Division of the City of Chicago issued to defendants a letter of electrical violations without mention of the E-base fuse system further exposes the weakness of this proposition. And it will be recalled that the testimony of Coutts, the City electrical inspector, indicated that an inspection letter issued on November 20, 1959, a week after the fire, revealed no violations with regard to the fuse box on the premises. We simply cannot agree that retention of the E-base fuse system constitutes evidence of negligence. Nor do we find any evidence of negligence in Kaitis’ testimony taken as a whole. Cases of interest in support of this finding are McCarty v. Metropolitan Life Ins. Co., 28 NYS2d 142, 143, and Tedrow v. Des Moines Housing Corp., 249 Iowa 766, 87 NW2d 463, 466-467 (1958).

Because this case involves the unfortunate death of a very young child, we have considered the sufficiency of plaintiff’s evidence and found it wanting, even when assessed in the light of the rule applicable to directed verdicts. We did so despite the fact that we also find that Kaitis’ testimony (on which plaintiff’s case necessarily rests) was inadmissible anyway. Testimony based on an inspection after the event in question is not competent unless evidence is also introduced to show that the conditions inspected had remained unchanged in the interim. Rotche v. Buick Motor Co., 358 Ill 507, 103 NE 529; Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 37, 139 NE2d 275. In the instant case there was not only no evidence to show that the premises, and especially the fuse box, had remained unchanged for the three days after the fire until inspection by Kaitis, but there was testimony from which a contrary conclusion is the only reasonable inference. Kaitis himself testified that an armored electrical cable in the apartment had obviously been severed sometime after the fire. He also said that one of the two fuses (in what he took for granted was the Spearman fuse box) was missing. Yet Mrs. Spearman testified that all the lights were turned on in the apartment and the refrigerator was operating when she had turned off all the lights upon leaving to visit her neighbor. This, of course, could not have been fact, if one of the two fuses had then been absent. And, conversely, since her uncontradicted testimony established the fact that all lights and appliances were operating just before the fire, then the fuse box must have been tampered with after the fire and before Kaitis examined it three days later. There was also the Fire Captain’s testimony that he had personally examined the fuse box at the time of the fire and reported no irregularity. The cases cited by plaintiff are distinguishable. Hutchinson v. Des Moines Housing Corp., 250 Iowa 1306, 99 NW2d 81, 89 (1959); McManus v. Pennsylvania Elec. Co., 389 Pa 168, 132 A2d (1957); and Fitzpatrick v. Public Service Co., 101 NH 35, 131 A2d 634 (1957).

Even if Mrs. Spearman’s positive and undisputed testimony were to be ignored (which cannot properly be done), and we were to consider only Kaitis’ testimony as to the condition of the fuse box, plaintiff’s position would not be improved, because the presumption of continuance of a condition runs forward but ordinarily does not reach backward in time. The nature of the claimed defect and the surrounding circumstances in the instant case are consistent with the reason for this general rule rather than its exception. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 32-33, 181 NE2d 826; Shipley v. Southern Pacific Co., 44 Ill App2d 1, 7-9, 193 NE2d 862; Redmond v. Huppertz, 71 Ill App2d 254, 257-258; Jines v. Greyhound Corp., 33 Ill2d 83, 87-88, 210 NE2d 562. See, also, the concurring opinion in Stankowitz v. Goldblatt Bros., Inc., 43 Ill App2d 173, 182, 193 NE2d 97, and cases there cited. Again, the cases cited by plaintiff are distinguishable on the facts. Grand Trunk Western R. Co. v. M. S. Kaplan Co., 43 Ill App2d 230, 238-239, 193 NE2d 456; Gass v. Carducci, 37 Ill App2d 181, 189-190, 185 NE2d 285.

We conclude, therefore, that defendants’ objection to the competency of Kaitis’ testimony under the circumstances should have been sustained.

Finally, we shall consider briefly plaintiff’s last contention of defendants’ negligence, raised for the first time on appeal, that the Chicago Building Code has been violated by defendants’ arrangement of their electrical fuse system. The ordinance provides:

Overcurrent devices shall be enclosed in cutout boxes or cabinets, unless a part of a specially approved assembly (as in fluorescent fixtures, Section 87-410.27) which affords equivalent protection, or unless mounted on switchboards, panelboards or controllers located in rooms free from easily ignitible material and dampness. Such locations to be accessible only to qualified persons. The operating handle of a circuit-breaker may be accessible without opening a door or cover. Municipal Code of Chicago, Sec 87-240.36.

It is not argued that defendants did not provide a suitable fuse box or cabinet, but only that they did not, somehow or other, limit its access to “qualified persons.” The ordinance does not designate who are to be considered as qualified persons, but common experience tells us that this category must include an apartment building’s tenants. For a landlord to lock out his tenants from access to the fuse box (except where there is a janitor in constant attendance) would be contrary to good sense and contrary to the custom of locating the fuse box in a place readily accessible to tenants in case of a blown fuse. We cannot believe that the ordinance quoted above has rendered unlawful such a well-established practice. In the instant case there is no evidence that would tend to prove that the fuse box location was negligently made accessible to strangers or to anyone other than tenants, of which there were at least twelve. We are unable to say that the ordinance in question affords any support for plaintiff’s judgment.

Since it is our decision that the judgment must be reversed for failure of the trial judge to direct a verdict for defendants, we will not discuss defendants’ third assignment of error alleging inflammatory and prejudicial argument by plaintiff’s counsel. The judgment of the Circuit Court is reversed with judgment here in favor of defendants.

Reversed with judgment here.

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


author: MR. JUSTICE ENGLISH McCORMICK, J.,

text:
    William C. Miller, Plaintiff-Appellant, v. Chicago Transit Authority, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 49,962.
    December 28, 1966.

      Robert L. Brody and George J. Gore, of Chicago (George J. Gore and Perry L. Weed, of counsel), for appellant.
    William J. Lynch, William S. Allen, Jerome F. Dixon, and Charles F. White, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

The complaint alleges that plaintiff sustained injury on November 25, 1956, when he was assaulted by two men and pushed onto the tracks from defendant’s subway platform at State and Monroe Streets, Chicago. It was also alleged, pursuant to plaintiff’s theory of liability, that defendant knew or should have known that the platform was a dangerous place, because it had been the scene of previous assaults by vicious persons, thus imposing on defendant a duty to police its platform for the protection of persons such as plaintiff who were awaiting the arrival of defendant’s trains. The alleged failure of defendant to exercise ordinary care in fulfilling this duty is the basis of plaintiff’s claim.

After selection of a jury, opening statements were made. The court then refused to hear evidence offered by plaintiff relating to previous assaults. It should be noted here that the whole question of an offer of proof is always dependent upon a preliminary ruling by the trial judge that he will not admit evidence which one of the parties is seeking to introduce. Without such a ruling, as in the instant case, neither the necessity nor opportunity for presentation of an offer of proof ever comes into existence. Then, when an offer of proof is made, the generalities become merged into the particulars of the specific evidence offered, and the judge is then in a position to determine the materiality and relevancy of whatever actual evidence may be available to the party to prove the point he seeks to establish.

In this case plaintiff had subpoenaed three police officers who were present and prepared to testify to previous occurrences. Plaintiff’s attorney was thereupon required or given an opportunity to make an offer of proof in the form of a statement describing the testimony he proposed to elicit, a formal offer of proof having been waived by defendant. He stated for the record:

The following offer of proof is being made with a waiver of formal proof by way of a witness taking the stand; that if permitted to proceed . . . the plaintiff would produce (three police officers who were attached to the district wherein the occurrence complained of took place, at that time and prior thereto).
These officers would testify of their own knowledge that there were several complaints received over a period of time prior to 11/25/56 as to assaults, robberies and various crimes in and about the platforms in the area of the subway near Monroe and State Street.
Further, Captain E. J. Barry will testify that at that particular time he was the desk sergeant in the First District, and that prior thereto, on at least one occasion, it was necessary to detail a special task force of police to the downtown subway platforms, said special detail being drawn from the outlying area because of particular complaints in the nature previously described and one complaint in particular, by the secretary to the then Governor of the State of Illinois, Adlai Stevenson, who was assaulted in and about one of the platforms in the area.

Defendant objected to the offer of proof, the objection was sustained, and the offered proof was rejected. Rather than attempt to proceed further in this regard, plaintiff elected to stand on his offer of proof, and it was expressly so stated in the judgment order. Therefore, while plaintiff raises technical points concerning the way in which the case was handled by the trial judge, the essential issue before us is the correctness of the court’s ruling on the particular offer of proof on which plaintiff rested his case.

It cannot be disputed that in this type of action it was open to the plaintiff — in fact, it was necessary for the plaintiff as part of his burden of proof — to show actual or constructive notice to defendant of the existence of a dangerous condition at its State-Monroe station platform at the time of plaintiff’s injury. Absent such knowledge, the alleged duty to police the platform at that location would not have been breached because it would not have arisen.

As relating to the question of defendant’s knowledge of prior disturbances which would raise a duty to police this particular station platform, the trial court was clearly in error in its broad preliminary ruling that no evidence of any prior occurrences would be admissible. If the matter had rested there, it might reasonably be argued that it would have been a useless or futile gesture for plaintiff to pursue the proposition further by urging upon the court an offer of proof through which he would make specific the point which up to that time had been stated only in generalities. For authority bearing on this exception to the general rule see, for example, Giddings v. Williams, 336 Ill 482, 168 NE 514, where the Supreme Court found that the attitude of the trial court had been so extremely hostile as to prevent plaintiffs in error from making an offer of proof and that they were therefore excused from doing so. See also Cleary, Handbook of Illinois Evidence, § 7.7, and ILP, Trial, § 44, and cases there cited to the same effect. The result in such a situation is that the ruling of the court, which would ordinarily not be reviewable without an offer of proof, does become so reviewable, and the absence of an offer of proof in such a circumstance is not permitted to work to the injury of the party who was prevented from following the customarily required procedure.

In the instant case, however, the matter did not rest there, and the attitude of the court obviously did not prevent plaintiff from making the offer of proof which he then proceeded to lay before the court. At the conclusion of the offer of proof, the court (as shown by the judgment order) took “the matter under advisement on offer of proof submitted by the plaintiff.” After the court had sustained defendant’s objection to the offer of proof, “the Plaintiff standing on said offer,” the court proceeded to enter judgment. On this record it appears to us clear that the judge’s preliminary erroneous ruling became academic and of no importance whatsoever when the offer of proof was actually made by plaintiff and considered by the court. The issue which then arose, and is now presented for our decision, is whether or not the court was correct in sustaining defendant’s objection to the offer of proof as made. And if the trial judge’s ruling was correct, it is of no consequence that he may have stated a wrong reason therefor, which we think he did. Platz v. Walk, 3 Ill2d 313, 318, 121 NE2d 483; Murphy v. Lindahl, 24 Ill App2d 461, 468, 165 NE2d 340. Unlike an appellant, an appellee’s argument in this court need not be confined to specific objections or points properly raised by him in the trial court. A judgment may be sustained by any argument and on any basis appearing in the record which demonstrates that the judgment was correct, even though such objection or argument had not been advanced at all in the trial court. Merriam v. McConnell, 31 Ill App2d 241, 244, 175 NE2d 293, citing, among other authorities, the leading case of Becker v. Billings, 304 Ill 190, 205, 136 NE 581.

We are therefore required to consider the sufficiency of the offer of proof (as set forth above) for the purpose of meeting plaintiff’s burden to establish defendant’s actual or constructive knowledge of a dangerous situation at the Monroe-State platform on November 25, 1956. In this consideration, however, it must be borne in mind that proof of just any prior acts of subway platform violence would not meet this burden. There must be proof of such acts which were proximately related to the attack on plaintiff as to both time and place. See, e. g., In re Estate of Kroening, 329 Ill App 178, 67 NE2d 293, and Romine v. City of Watseka, 341 Ill App 370, 375-376, 91 NE2d 76.

Plaintiff contends that his offered proof was sufficient, based upon the principles laid down in Neering v. Illinois Cent. R. Co., 383 Ill 366, 50 NE2d 497. There a suit was brought by a young woman to recover damages for injuries sustained as a result of being assaulted while she was waiting for a train at defendant’s railroad station. Both plaintiff and her sister testified that for two years immediately prior to the assault, they had seen tramps and hoboes on, and in the immediate vicinity of, the station platform at least once a week, and that they had repeatedly complained to the ticket agent about this situation. Further, there was testimony by police officers that at times proximate to the assault, they had removed hoboes from the station in question. Plaintiff is correct when he contends that the Neering case stands for the proposition that liability will be imposed on a carrier which knowingly allows lawbreakers to have access to its premises. But the opinion in Neering demonstrates the fatal defect of plaintiff’s case. The evidence submitted to prove knowledge in the Neering case was specific and proximate as to both the time and the area involved. No question of materiality or relevancy of such evidence was left for the speculation of the trial judge or of a reviewing court. The holding in that case is consequently confined to a dangerous condition shown to have been proximate to the assault in question as to both time and place. Instead of furnishing authority for reversal, therefore, we consider that the Neering case constitutes a sound basis for affirmance. The offer of proof in the case before us is far too general to justify our sending the case back for trial. We can have no assurance that the specific occurrences about which the police officers might testify would be at all relevant to meet plaintiff’s burden.

We take notice of the fact that there is more than a mile of “downtown subway platforms” in Chicago, all of which might be said to be “in the area near” Monroe and State Streets, but most of which would not be near enough to establish the proof required of plaintiff in this case. The only instance specifically referred to in the offer of proof is that of the assault upon the secretary to the then Governor, Adlai Stevenson. From this part of the offer it appears only that there had been an assault sometime during the period of years 1949 through 1952 (i. e., during the Governor’s term of office) at a subway platform which might have been anywhere in the downtown area — at Harrison and State Streets, for example. Thus, the only specific occurrence covered by the offer of proof could have taken place a half mile from the Monroe Street platform where the surroundings are very different, and was certain to have occurred 4 to 8 years prior to the instant assault. In regard to this specific offer, we consider it too remote in both time and place, and we consider the balance of the offer to be inadequate because too general and vague. Taken as a whole, the offer of proof is insufficient to establish the constructive notice necessary for plaintiff’s prima facie case. An offer of proof serves no useful purpose at all if it does not demonstrate (to both trial and appellate courts) the admissibility of the testimony which was foreclosed by the ruling complained of. As stated by Professor Cleary in his Handbook of Illinois Evidence, § 7.7, “Just as the objection is the key to saving for review any error in admitting evidence, the offer of proof is the key to saving error in excluding evidence.” And admissibility cannot be determined from descriptive generalities. The “offer must state specifically what it is proposed to show in order that the court may rule on its materiality and relevancy.” ILP, Trial, § 44 and cases there cited. While defendant made only a general objection to the offer of proof, such an objection effectively raises the questions of materiality and relevancy. Johnson v. Bennett, 395 Ill 389, 398, 69 NE2d 899. Evidence of an assault removed in time or place from the instant occurrence would not be relevant to the critical issue of constructive notice.

After the trial court’s decision on plaintiff’s offer of proof, the attorneys entered into a stipulation and the judge then took the case from the jury and entered judgment for defendant. Plaintiff’s final argument here is that this stipulation of counsel relieved him of making any more specific offer of proof than he did. Part of the stipulation, as stated orally to the court by plaintiff’s attorney, was:

It is agreed by and between the parties hereto that for the purpose of this proceeding only, the defendant waives formal proof of the other necessary allegations of the complaint, being, to wit: The occurrence as alleged on 11/24/56, due care and caution upon the part of the plaintiff, injuries as to proximate result of negligence, if any, on the part of the Chicago Transit Authority.
May the record further show that this procedure is being made and taken in order to save three days of vital court time at the present time, inasmuch as the Court indicated to all concerned that it would not allow the proof from witnesses who are necessary in the proceedings.

The balance of the stipulation was set forth in a finding by the court in its judgment order as follows:

. . . and the Court taking the matter under advisement on offer of proof, submitted by the plaintiff, formal proof being waived by stipulation and agreement, said offer of proof corresponding to and supporting the allegations of the Amended Complaint with reference to previous incidents of assaults, the veracity, credibility and sufficiency of the proof not being admitted by the defendant. . . . (Emphasis supplied.)

The question of the sufficiency of the proof offered was thus clearly in the minds of both court and counsel when the judgment order was entered. We therefore cannot reach the conclusion which plaintiff urges upon us in this regard. In our opinion, defendant did not stipulate away the controlling issue of the sufficiency of plaintiff's offer of proof, which issue we resolve adversely to the contentions of plaintiff.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J., concurs.

McCORMICK, J.,

dissents.

I must respectfully dissent to the conclusion reached in the majority opinion.

The writer of this dissent agrees with the statement of facts set out in the opinion; however, in order to indicate the attitude of the trial judge from the very inception of the trial — even though no point is made on this question in the briefs filed in this court — it is proper for the court to consider the fact that the trial judge quashed a subpoena which had been served upon the defendant, requiring it to bring to court all the records and reports pertaining to assaults, strong-arm robberies, crimes of violence and complaints relative to the same, on the subway platform at or near State. and Monroe Streets on or before November 25, 1956, and all records pertaining to assignment of security police to the same area during the same period.

After the opening statement had been made the trial court stated that it would not allow any evidence to be introduced at the trial concerning incidents or occurrences in the nature of assault, etc., occurring on or prior to November 25, 1956, on the subway platform at or near State and Monroe Streets. As pointed out in the majority opinion, “plaintiff had subpoenaed three police officers who were present and prepared to testify to such occurrences.” There was some discussion between counsel, and the plaintiff — through his counsel — stated that he would make an offer of proof; it was agreed between the parties that the plaintiff would produce certain testimony, although the defendant did not admit or stipulate to its truth. Among other things contained in the stipulation as stated in the majority opinion was the following statement with reference to the three police officers who were present in court:

“These officers would testify of their own knowledge that there were several complaints received over a period of time prior to 11/25/56 as to assaults, robberies and various crimes in and about the platforms in the area of the subway near Monroe and State Street.”

There was an additional stipulation concerning the testimony of Captain Barry, as set out in the opinion. The defendant objected to the offer of proof; the objection was sustained, and the offered proof was rejected. In the opinion it is considered that the essential issue before this court is the correctness of the court’s ruling on the offer of proof, and it is admitted that the trial court was in error in stating that it would not allow any testimony whatsoever on this subject.

The majority opinion takes the view that the offer of proof submitted by the plaintiff should have specifically indicated the times when the alleged assaults occurred on this platform, inasmuch as there must be some connection in time between them and the instant assault. The plaintiff argues that where the court has entered an order of this character he should not have been required to make any offer of specific proof. In that he is supported by the texts and the cases.

In 88 CJS, Trial, § 74, on page 180, it is stated:

“An offer of proof is unnecessary where the offer would be a useless ceremony, or the evidence is rejected as a class, or where the court indicates such offer would be unavailing. . . .”

In 5 Am Jur2d, Appeal and Error, § 604, it is said:

“The general rule that the trial court cannot be put in error in excluding evidence unless an offer of proof is made showing what the evidence or testimony would have been if received, has been applied to preclude review of alleged error in excluding evidence. However, the making of an offer of proof is not a condition of the right to a review of a ruling excluding evidence unless the nature of the evidence intended to be elicited by the challenged question is not apparent. And the actual offer of evidence upon an issue is not necessary to preserve the question for the appellate court if the trial court rules that no proof upon that issue will be received.”

In 34 ILP, Trial, § 44, it is stated:

“. . . Furthermore, an offer of proof is unnecessary where it is apparent that it would be a useless gesture by virtue of the attitude of the court.”

Cleary, Handbook of Illinois Evidence, § 7.7, page 107, states:

“. . . An extremely hostile attitude on the part of the trial judge excuses the making of an offer. Giddings v. Williams, 336 Ill 482, 168 NE 514 (1929).”

See Edmanson v. A. H. Andrews & Co., 35 Ill App 223. In Giddings v. Williams, 336 Ill 482, 168 NE 514, an objection was made to the conduct of the trial court, and the Supreme Court said it would not consider the contentions in detail, and added:

“It is sufficient to say that it is apparent from statements made by the court that the case was tried upon the theory that any grounds for constructive eviction which might have existed were waived by plaintiffs in error, that they were not justified in vacating the premises, and the rulings on the admission of evidence were upon this theory. As a result, considerable competent evidence was excluded and plaintiffs in error did not have a fair and impartial trial. The Appellate Court held that these rulings did not constitute reversible error for the reason that plaintiffs in error did not make an offer as to what they expected to prove. From the whole record we are of the opinion that the attitude of the court was such as to prevent plaintiffs in error from making an offer when the various items of evidence were ruled upon. . . .”

In Bartholow v. Davies, 276 Ill 505, 114 NE 1017, in which case the court refused to permit a witness to answer as to whether or not in his opinion one Borden was sane or insane from 1900 until his death, the question was objected to as incompetent, irrelevant and immaterial,

“ and thereupon the counsel for the appellants stated that he offered to prove that beginning with the year 1900, and until his death, Borden was insane, unable to understand the ordinary business transactions of life and was subject entirely to the will and domination of Mrs. Davies. The court sustained the objection, stating that he declined to receive this evidence, or any evidence of like character, on the ground that the decree of adoption of the county court could not be attacked in this collateral manner. This was a sufficient offer of proof. The question asked was not objected to on account of its form but for immateriality. It was not immaterial, for the insanity of the grantor in the deeds was an essential element of the appellant’s case. The appellants could not prove their whole case by the testimony of one witness or the answer to one question, and when the court sustained an objection to a material question and announced that no evidence of that character would be received, it was not necessary for the appellants, in order to preserve their rights, to call all their witnesses and interrogate each one of them.”

The court reversed and remanded the case.

In Carroll v. Beavers, 126 Cal App2d 828, 273 P2d 56, the trial court held that it was material and relevant to prove whether or not the respondent had failed to stop at a stop sign. In the opinion the court said:

“. . . The trial court not only sustained an objection to the specific question on this point but had indicated that it would not admit any evidence as to any statements made by the respondent which were incorporated in or made the basis for the facts set forth in the report. It is well settled ‘that no offer of proof is required when an entire class of evidence is excluded where the relevancy of such class of evidence is apparent.’ [Citing cases.] ”

In Hartnett v. Boston Store of Chicago, 265 Ill 331, 106 NE 837, a suit was brought against the defendant to recover damages alleged to have resulted from the violation of an ordinance of the City of Chicago forbidding the sale of firearms to minors, and alleged that the defendant sold a gun and cartridges to one Soderquist, a minor; that Soderquist fired the gun and the plaintiff was struck by the bullet. On the trial Soderquist was a witness for the plaintiff and was asked a number of questions evidently designed to show that he had never owned a gun and was not accustomed to the use of firearms or experienced in that respect. Objections to the questions were sustained by the trial court. The Supreme Court in its opinion said:

“Error is assigned on the ruling, and one reply is that the plaintiff made no offer of proof as to what the witness would answer. That does not justify the ruling, because where a question shows the purpose and materiality of evidence it is not necessary to state what the answer would be. If a question is in proper form and clearly admits of an answer relative to the issue and favorable to the party on whose side the witness is called, the party is not bound to state the facts proposed to be proved by the answer unless the court requires him to do so. (38 Cyc 1330; Buckstaff v. Russell, 151 US 626.)”

In Meaney v. United States, 112 F2d 538, a case brought to recover upon a policy of war risk insurance, the policy had lapsed and the question was whether or not the deceased had been permanently and totally disabled at that time. The policy lapsed on January 30, 1919; the insured died on July 6, 1922. The court said:

“The only error we need consider was a ruling, made during the examination of the physician who had first examined him in December, 1920. This witness said that he had taken care of the insured both at that time and after he came back from the sanatorium; and he was allowed to testify as to what he found on his several examinations, but the judge refused to let him say what the insured had told him of the ‘history of the case.’ It is true that the plaintiff did not make any formal offer of proof such as Rule 43(c). Rules of Civil Procedure, provides for, but, while that would have been useful, it was not an absolute condition upon availing himself of the error. Moreover, he did almost the equivalent when he said that the ‘history’ excluded was the ‘crux of the whole case’ and that if it could not be obtained from the physician, it could not be obtained at all. The first physician who had examined him was dead, and the insured’s declarations as to the time of the onset of his disease and its immediate severity were quite likely to be determinative. If the testimony was competent, its exclusion probably affected ‘the substantial rights of the parties.’ ”

The court held that the decisions as to whether such statements were or were not admissible were not entirely in accord, and after discussing the decisions the court stated that there is authority that where declarations were made by a veteran to physicians of the Veterans’ Adminstration it is obviously different from declarations of fact irrelevant to the declarant’s treatment, such as what was the cause of his injury. The court added:

“It is true that this body of authority is not impressive as such, but it appears to us that if there is to be any consistency in doctrine, either declarations of all symptoms, present or past, should be competent, or only those which fall within the exception for spontaneous utterances. Nobody would choose the second, particularly as the substance of the declarations can usually be got before the jury as parts of the basis on which the physician’s opinion was formed. It is indeed always possible that a patient may not really consult his physician for treatment; the consultation may be colorable. The judge has power to prevent an abuse in such cases, and here as elsewhere, when the competency of evidence depends upon a question of fact, his conclusion is final. He must decide before admitting the declarations whether the patient was consulting the physician for treatment and for that alone. Unless he is so satisfied, he must exclude them, though it is true that if he admits them, the defendant may still argue that they are untrustworthy. They will be evidence, but in estimating their truth the jury may have to decide for themselves the very issue on which the judge himself passed before he admitted them; the competency of evidence is always independent of its weight.”

The court reversed the judgment. See Ross v. Industrial Commission of Arizona, 82 Ariz 9, 307 P2d 612.

Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249, was an appeal from a decree of the Circuit Court declaring that a certain instrument was not the last will and testament of the deceased. The instrument was set aside and the probate declared to be null and void. In that case the attorney who drafted the will instructed one Sara Crate to take a wire recorder to the hospital and make a recording of the conversations with the testator prior to the execution of the will. She followed these directions and made a recording which consisted of her reading of the will to the testator, his statements, if any, after each paragraph, together with his responses to specific questions, among others as to whether or not he wanted to sign the will. In the opinion it was stated:

“At the trial the entire spool containing the recording was tendered in evidence after an offer of proof outside the presence of the jury. No objection was made by plaintiffs’ counsel as to the form of the offer of proof. The court rejected the wire recording, saying: ‘My notions are that Sara Grate is not a competent witness and that the reading of the will and his responses are not competent evidence. I can’t see how that can be admitted in evidence, and I will so rule on that.’ Apparently the court reasoned that since Sara Grate was not a competent witness in her own behalf under section 2 of the Evidence Act, her reading of the will, and the questions and answers as recorded were therefore incompetent. We cannot agree that the recording was incompetent for that reason.”

The court further said:

“Counsel for defendants outlined an offer of proof to the court out of the presence of the jury, designed to lay a proper foundation for the admission of the recording. This offer included the proposed testimony of Walls Schreffler, an expert on such devices; that of Mrs. DiDomenic, one of the nurses who witnessed the will, and Samuel Saxon, the attorney who drafted the will and whose wire recorder was used. Counsel for defendants then said they would offer the entire spool in evidence. The court then ruled the wire recording inadmissible on the basis of section 2 of the Evidence Act. In view of the court’s ruling, the act of calling these witnesses before the jury, the formal marking and tendering of the spool, and its identification was not required. Had the objection made for the first time in this court been interposed at the trial, counsel for the defense would have had an opportunity to secure the trial court’s ruling thereon, and to call additional witnesses, if they were needed, to lay a proper foundation for this evidence. It is our conclusion that the wire recording was not inadmissible for the reason given by the trial court and that the question was properly preserved for review.”

In the instant case the discussion between counsel in the presence of the court had something of the elements of a conversation over a tea table. It is worthy of note that the offer of proof stated that the officers would testify as to certain complaints made prior to November 25, 1956. In the majority opinion the court takes the view that in order to meet the requirement of a proper offer of proof the dates of the complaints should have been included, and that the offer was too broad and too general. However, the objection made by the counsel for defendant was merely a general one; had he indicated that the objection was made because the offer was not specific, it would have afforded an opportunity to counsel for plaintiff to amplify his offer if he could, and if he could not, there would be no question before this court. See Vol 6, Callaghan’s Illinois Evidence, §§ 16.05, 16.06, 16.07, and cases therein cited.

In Chicago & E. I. R. Co. v. Wallace, 202 Ill 129, 66 NE 1096, the court stated:

“It is a well settled rule in this State, that a general objection to a question asked of a witness is not sufficient, where the defect is one that could be obviated in case a specific objection were made. In Stone v. Great Western Oil Co. 41 Ill 85, we said (p 94): ‘It has been so often held by this court, that objection to evidence must be specific, that it has become the doctrine of this court. The rule is, that the party, making the objections, must point out specifically those insisted on, and thereby put the adverse party on his guard and afford him an opportunity to obviate them.’ ”

In DeMarco v. McGill, 402 Ill 46, 83 NE2d 313, the court said:

“The trial court is entitled to know what specific insufficiencies exist in the introduction of evidence, and it is unfair to make objections on appeal after concealing the real objections from the lower court. (People v. McCurrie, 337 Ill 290.) The rule is that a party objecting to evidence must point out the objections specifically so as to afford the adverse party an opportunity to correct it. (Illinois Iowa Power Co. v. Rhein, 369 Ill 584.) A party who seeks to exclude a piece of evidence should be explicit and disclose to the trial court all defects in the proposed proof which he expects to urge upon this court in the event of an appeal. Forest Preserve Dist. v. Lehmann Estate, Inc. 388 Ill 416.”

In Logan v. Mutual Life Ins. Co., 293 Ill 510, 127 NE 688, the court held that even in a case where an objection is made on the theory that the evidence was incompetent because no verified plea was on file setting up the defense, they should have made that specific objection when the proof was offered. The court said:

“The general rule is, that objections which are of a character to be cured or obviated by amendment must be specifically made at the trial and if not so made are waived. [Citing cases.] . . . The specific objection should have been made at the trial, and it came too late in the Appellate Court to be availed of.”

It is apparent that the rule with reference to the necessity for making specific objections is a rule which has been long established and recognized in the Illinois courts. Such a rule should not be lightly disposed of.

According to the rule of law heretofore laid down, under the circumstances of this case it was not necessary for the plaintiff to make any offer of proof whatsoever; hence, we cannot say that an incomplete offer would prevent him from having a review in this court of the ruling denying his right to introduce any evidence whatsoever with reference to complaints received by the officers concerning assaults, robberies, etc., on the State-Monroe subway platform, if any there were.

In this case, as in the Belfield case, the question before the trial court was not whether the offer of proof was sufficient, but whether or not the plaintiff could introduce any evidence whatsoever. The court raised no objection to the sufficiency of the offer of proof, and in fact, it would appear that as far as both counsel were concerned, that thought was furthest from their minds. The purpose of a lawsuit, in its broadest sense, is to attempt to do substantial justice. When the interposition of technicalities on the part of reviewing courts hinders that aim, then it is a blow to our entire system of law.

In the opinion of the writer of this dissent, the judgment of the Circuit Court of Cook County should be reversed and the case remanded for a new trial.

       In our opinion, it may happen more often than not that an informal offer of proof, as distinguished from a formal offer, through interrogation of witnesses, will cause more trouble than it will save. Too frequently a lawyer may, though in good faith, misstate or overstate what the testimony of his witnesses would be when actually sworn and submitted to specific questioning and cross-examination. From the point of view of a reviewing court, it would seem that the true purpose of an offer of proof is accomplished far better when the offer is presented formally.

       And therefore probably the best one available to plaintiff, since his highly competent counsel would presumably be putting his best foot forward to convince the judge to change his preliminary ruling. A secondary feature of an offer of proof is the salutary one (similar in this regard to the function of a post-trial motion) of affording an opportunity to the trial court to correct its own errors.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Tucker, Defendant-Appellant.
    Gen. No. 49,907.
    First District, Second Division.
    December 28, 1966.
    Steven P. Davis, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William R. Chandler, Defendant-Appellant.
    Gen. No. 50,645.
    First District, Second Division.
    December 28, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.