author: MORAN, J.

text:
    Randy Lance, by His Father and Next Friend, Wayne Lance, Plaintiff-Appellant, v. Barbara Senior and Robert Senior, Defendants-Appellees.
    Gen. No. 65-45.
    Fifth District.
    January 6, 1966.

      Elmer Jenkins, of Benton, for appellant.
    Jack E. Horsley and Whitney D. Hardy, of Craig & Craig, of Mattoon (Fred H. Kelly, of counsel), for appellees.
   MORAN, J.

This case is presented solely on the pleadings. The complaint recited that on August 14, 1964, the plaintiff, a nine-year-old hemophiliac, remained in the defendants’ home overnight as a guest and was in the exercise of the proper degree of care for his own safety. It alleged defendants knew of his blood condition but they negligently allowed him to play with a needle which was sucked into his lungs and caused him injuries. The complaint alleged only negligence. Defendants moved to dismiss the complaint on the ground that plaintiff, according to the allegations of the complaint, was a licensee or social guest and the defendants’ only duty was not to wilfully and wantonly injure him.

The trial court granted defendants’ motion and dismissed the complaint in bar of the action and entered judgment for the defendants. Plaintiff appeals from that judgment.

The defendants contend that since the complaint discloses that the plaintiff was a social guest on their premises at the time of the injury, defendants owed plaintiff no duty other than not to injure him by their wilful and wanton misconduct, and since the complaint was based solely on negligence it did not state a cause of action and therefore was properly dismissed by the trial court. Martin v. Cline, 15 Ill App2d 269, 145 NE2d 505; Krantz v. Nichols, 11 Ill App2d 37, 135 NE2d 816; Jones v. Schmidt, 349 Ill App 336, 110 NE2d 688.

Plaintiff concedes that defendants’ cited cases sustain defendants’ contentions but contends that they are contrary to the holding of our Supreme Court in the case of Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836; that since plaintiff was only nine years of age at the time of the injury complained of, the theory of “foreseeability of harm to the child” set forth in Kahn is the proper standard of liability in his case and that therefore his complaint states a cause of action although grounded upon ordinary negligence.

Counsel has not cited, nor have we been able to find, any cases where our Supreme Court has dealt with the general duty owed by a host to a social guest. In Illinois three statuses have been used by our Appellate Courts to determine liability of an owner of property: (1) he owes the trespasser only the duty to refrain from wilful and wanton misconduct; (2) he owes the licensee the same duty, and (3) he owes the invitee the duty of reasonable care. In the first two situations the injured person must prove wilful and wanton misconduct to recover, while in the third he must prove only ordinary negligence. Strangely enough, the social invitee or guest has not been considered an invitee, but rather a licensee so he has had to prove wilful and wanton misconduct to recover. Our Appellate Courts have also held that a child social guest is a licensee and must plead and prove wilful and wanton misconduct on the part of a host to establish liability.

The Kahn case involved a situation where an uninvited minor was injured while playing on a pile of lumber at a construction site. The plaintiff proceeded on the attractive nuisance theory, but the court refused to categorize the case in this manner, saying at page 624:

. . . The naming or labeling of a certain set of facts as being an “attractive nuisance” case or a “turntable” case has often led to undesirable conclusions. The inclination is then to find a stare decisis pigeonhole or category. The difficulty in such procedure is that too often the result of such a search is the reaching of irreconcilable conclusions.
... In view of the foregoing conflict and the fact that, as many courts have declared, a child in his youthful fancy, imagination and ingenuity can make a plaything of almost anything and is attracted by almost everything, the only proper basis for decision in such cases dealing with personal injuries to children are the customary rules of ordinary negligence cases.

Under Kahn, the landowner who knows that uninvited infants are likely to play on his premises, has a duty to exercise reasonable care for their safety when it is reasonably foreseeable that they might be injured by some dangerous condition there. The rationale of Kahn requires the landowner to exercise reasonable care in such cases because he is presumed to know that children are on or are likely to be on his premises. We believe that in such cases the Kahn case gives the courts of review of this state a clear mandate to discontinue the practice of labeling or classifying infants who are injured on the premises of another as trespassers, licensees or invitees for the purpose of establishing rules for liability when they are injured. The “only proper basis for decision now in such cases dealing with personal injuries to children are the customary rules of ordinary negligence.” The true basis of liability is the foreseeability of injury to the child.

Although our Supreme Court has ceased labeling uninvited infants injured on another’s premises as either licensees or invitees for the purpose of defining an owner’s legal duty toward them, we are now asked to continue the practice of labeling them as licensees in cases where they are actually invited and are injured in their host’s house, rather than use the foreseeability test laid down in Kahn. Although they are invited, we are asked to indulge in the fiction that they are licensees so as to prevent them from recovering unless their host wilfully and wantonly injures them. Under this reasoning, the owner of property would have a greater duty toward uninvited than invited children on his premises. Such a holding would violate all rules of logic, for when a host invites a child onto his premises he has actual knowledge of the child’s presence and should therefore be held to as high a standard of conduct as is the owner of premises who is presumed to know of the child’s presence under the doctrine of Kahn v. Burton, supra.

We therefore hold that when an infant social guest is injured on his host’s property, the customary rules of ordinary negligence apply, with the true test of liability to be the foreseeability of injury to the child. Whether or not it was foreseeable that a particular thing or condition might or could cause injury to the invited child would ordinarily be a question of fact for the jury who would be properly instructed under the rules of ordinary negligence.

We therefore hold that the complaint stated a cause of action although grounded on ordinary negligence. For the foregoing reasons the judgment of the trial court in favor of the defendants is reversed. We remand the case for further proceedings not inconsistent with this opinion.

Judgment reversed and case remanded for further proceedings.

EBERSPACHER, P. J. and GOLDENHERSH, J., concur.

       In an excellent article commencing on page 258 of the November, 1965, issue of the Illinois Bar Journal, the authors have cited and discussed a number of cases involving the liability of a landlord to nontenants entering upon his premises. These cases demonstrate the confusion which results from efforts to determine liability on the basis of the plaintiff’s legal status, i. e. invitee, licensee, trespasser, without regard to other distinguishing factors in the fact situations presented.


source: Caselaw Access Project

author: GOLDENHERSH, P. J.

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. James C. Harris, Appellant.
    Gen. No. 65-40.
    Fifth District.
    January 10, 1966.

      Kassly, Weihl, Carr & Bone, of East St. Louis (Donald E. Weihl, of counsel), for appellant.
    John M. Karns, Jr., State’s Attorney of St. Clair County, of Belleville (James H. Bandy and John F. O’Connell, Assistant State’s Attorneys, of counsel), for appellee.
   GOLDENHERSH, P. J.

Defendant, James C. Harris, was tried by jury in the Circuit Court of St. Clair County, and convicted of the crime of bribery (Ill Rev Stats c 38, § 33-1, 1963). The court entered judgment on the verdict, denied defendant’s application for probation, and sentenced defendant to the penitentiary for not less than 3 nor more than 5 years.

Defendant contends that the indictment does not meet the requirements set forth in Section 111-3 of the Crimimal Code of 1961. (Ill Rev Stats c 38, § 111-3, 1963.) In view of the opinion of the Supreme Court in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, the indictment sufficiently charges the offense of which defendant was convicted.

Defendant further contends that the evidence fails to prove him guilty of the crime of bribery beyond a reasonable doubt. The consideration of this contention requires a brief review of the indictment, and the evidence.

The indictment charges that while duly selected and serving as a juror, defendant solicited money which he was not authorized to accept, for his personal advantage, pursuant to an understanding that he would influence the performance of the jury of which he was a member, to the advantage of one Magdalene Hilderbrand, from whom he allegedly solicited a payment of money.

The testimony shows that Mrs. Hilderbrand was the plaintiff in a suit for damages. Her case came on for trial, a jury, of which defendant was a member, was selected and sworn, opening statements were made, and one witness testified. Court recessed for the day at 5:00 p. m. and Mrs. Hilderbrand drove from the court house in Belleville to the tavern which she operated. Because she was in court, the tavern had been closed during the day, and she opened it for business at 6:00 p. m. Shortly after she opened the tavern, defendant came in, seated himself at the bar, and ordered a bottle of beer. Mrs. Hilderbrand testified that defendant asked her how she liked court, told her he had served on a jury during the preceding week in a case in which the International Shoe Company was the defendant, that a supervisor for International had contacted him at home one night and asked him “how $300 would look, that the company was sued for $40,000, and $300 was a drop in the bucket.” She testified that defendant told her her lawyer was not asking for enough money, that her first witness (a physician) had “messed up her case.” She stated the defendant told her to tell her lawyer that if he was interested in $15,000 to wipe his brow with a handkerchief at 10:00 a. m. the next morning, “then I will talk to my buddy about it.” She testified the defendant was in her tavern for about 3 hours, drank several beers, talked to her several times during the time he was there, and while he was in the tavern he talked with no one but her. On cross examination, Mrs. Hilderbrand stated that at no time did defendant say he wanted money from her or her lawyer, he did not ask her for any money, and did not say he accepted money from International. She also stated that defendant did not say he would bring in a verdict in her favor, but said “he would talk to his buddy.” Who the “buddy” was, or whether the reference is to a fellow juror, is not apparent from the record.

Euel Bushart testified that he lived near Mrs. Hilderbrand’s tavern, that he was employed as a punch press operator, and worked part time for Mrs. Hilderbrand, helping her clean up her tavern. He stated that on the evening in question, he arrived at the tavern before Mrs. Hilderbrand, that there was a man in a car on the tavern parking lot, that it was the only car there at that time, and the man in the car was the defendant. He testified that as he worked around the bar he heard snatches of the conversation between defendant and Mrs. Hilderbrand, and heard the defendant mention International Shoe Company and $300.

Mrs. Hilderbrand was recalled as a witness for the People and testified that during the voir dire examination of the jurors in her personal injury suit, the jury was told that she operated a tavern, that it was called “Sybil’s,” and its location.

Defendant testified that he had served as a juror in the International Shoe case, he was selected as a juror in Mrs. Hilderbrand’s case, after leaving the court house he drove to his wife’s place of employment in St. Louis, drove his wife home, about 7:00 p. m. he went to Sybil’s Tavern, while there, he drank one bottle of beer and part of another, a friend of his came in, his friend told him he was going to the race track, that he, the defendant, told his friend he wished he had $200 or $300 to bet on a horse “that was supposed to win,” that he did not at any time talk to Mrs. Hilderbrand. He stated that Mrs. Hilderbrand was wearing a uniform and he did not recognize her until he had drunk part of his second beer, that as soon as he recognized her, he said “I have no business in here, I got to get out of here,” and immediately left the tavern. On cross-examination he stated he did not know Mrs. Hilderbrand operated “Sybil’s” and his stopping there for a drink and encountering his friend there were pure coincidences.

Joshua Goforth testified he knew the defendant, that he was on his way to the races, saw defendant’s car parked near the tavern and went in. He testified to substantially the same conversation about the $200 or $300 as did defendant. On rebuttal, Mrs. Hilderbrand testified Goforth had never been in her tavern, and was not there on the night in question.

Defendant argues that Mrs. Hilderbrand’s testimony shows there was no solicitation of money by defendant, and her statements on cross-examination demonstrate clearly that defendant, at no time, asked her for any money. He urges the record, at most, indicates an attitude of mind, that no act was committed, and before a crime is completed, it must advance beyond the stage of a mere idea or mental attitude.

Prior to the adoption of section 33-1 (e) of the Criminal Code of 1961, although solicitation of a bribe was an offense at common law, it had not been the subject of any legislative enactment. In Walsh v. People, 65 Ill 58, at page 61, the Supreme Court said: “As we have seen, the mere offer to bribe, though it may be rejected, is an offense; and the party who makes the offer is amenable to indictment and punishment. The offer amounts to no more than a proposal to give a bribe; it is but a solicitation to a person to take one. The distinction between an offer to bribe and a proposal to receive one, is exceedingly nice. The difference is wholly ideal. If one man attempt to bribe an officer, and influence him, to his own degradation and to the detriment of the public, and fail in his purpose, is he more guilty than the officer, who is willing to make sale of his integrity, debase himself, and who solicits to be purchased, to induce a discharge of his duties? The prejudicial effects upon society are, at least, as great in the one case as in the other; the tendency to corruption is as potent; and when the officer makes the proposal, he is not only degraded, but the public service suffers thereby.

“According to the well established principles of the common law, the proposal to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment.

“It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal to take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct can not be checked, by appropriate punishment.”

It was not necessary that the defendant make a proposal specifying, in detail, the amount to be paid and how and when he was to receive it. When he made the proposal shown by the evidence, he had committed the offense contemplated by the statute.

Defendant contends that the evidence fails to prove him guilty beyond a reasonable doubt. The testimony was conflicting, and the credibility of the witnesses and the weight to be given their testimony were questions for the jury. We cannot say that the evidence is so improbable, unreasonable or unsatisfactory as to justify our holding that there is a reasonable doubt as to the guilt of the defendant. The People v. Lobb, 17 Ill2d 287, 161 NE2d 325.

Defendant complains of the giving of The People’s Instruction number 8, which is in the same language as that found in The People v. Guido, 321 Ill 397, page 415, 152 NE 149. Although approved in a number of earlier opinions, this instruction was criticized in The People v. Ciucci, 8 Ill2d 619, 137 NE2d 40, in which opinion, the Supreme Court suggested the use of the words “authorizes” or “warrants,” rather than “demands,” and further suggested a qualification of the definition of circumstantial evidence. If, in our opinion, the giving of this instruction affected the result in this case, we would not hesitate to hold it to be prejudicial, but in the state of the record before us, we do not think the verdict would have been different, had the instruction been given after modification in the manner suggested by the Supreme Court.

Subsequent to conviction, the defendant made application for probation. The record shows that the court received a report from the Probation Officer, but the report is not included in the record. There was no evidence offered in mitigation or aggravation, nor does the record show that defendant was advised of his right to offer such evidence, or that he waived the right so to do. In People v. Evrard, 55 Ill App2d 270, 204 NE2d 777, this court said that it was the legislative intent that the court hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the defendant in all cases wherein there is a conviction. In People v. Smith, 62 Ill App2d 73, 210 NE2d 574, the Appellate Court for the First District stated that the burden of requesting the hearing is on the defendant. We agree with the conclusion reached by our colleagues of the First District, subject to the limitation that a defendant should not be deemed to have waived a statutory right in the absence of evidence that he was aware of that which he is supposed to have waived. The decisions of our Supreme Court holding the right to have been waived involved proceedings prior to the effective date of The Criminal Code of 1961. The People v. Wakeland, 15 Ill2d 265, 154 NE2d 245 (1958), The People v. Muniz, 31 Ill2d 130, 198 NE2d 855. In the Muniz case, although the opinion was filed in 1964, the defendant had been sentenced in 1956. Also the language on page 138 of the opinion reveals circumstances peculiar to that case, and not present in the case at bar. In determining whether a defendant has waived a right, the test to be applied is aptly stated in Johnson v. Zerbst, 304 US 458, 58 S Ct 1020, wherein the Supreme Court, through Mr. Justice Black said, “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”

In Rule 27 (6) of its Rules, the Supreme Court has directed that in all cases in which the defendant is sentenced to the penitentiary, except where convicted upon a plea of guilty, the trial court shall advise him of his right to appeal, and, if indigent, of his right to a transcript and the services of appointed counsel. The right to present evidence in mitigation, which might tend to persuade the court to impose a less severe sentence than would be ordered in the absence of such evidence, is as valuable and important a right as the right of appeal. In the absence of a showing in the record that the defendant was advised of his right to offer evidence in mitigation, and upon being so advised, expressly waived that right, the defendant was entitled to offer such evidence and have it included in the record.

For the reasons herein set forth, the judgment of the Circuit Court of St. Clair County is affirmed, but the cause is remanded with directions that the sentence be vacated and the defendant given an opportunity to offer evidence in mitigation, prior to the imposition of sentence.

The court expresses its thanks to appointed counsel who skillfully and thoroughly briefed and argued this cause.

Judgment affirmed and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MOEAN, J.

text:
    Myrtle Mehochko, Plaintiff-Appellant, v. Gold Seal Company, a Corporation, Defendant-Appellee.
    Gen. No. 65-64.
    Fifth District.
    January 11, 1966.

      Meyer & Meyer, of Belleville, for appellant.
    Oehmke, Dunham, Boman &Leskera, of East St. Louis (John W. Leskera, of counsel), for appellee.
   MOEAN, J.

This is a products liability action in which the plaintiff charges that she was injured because the defendant, a distributor of a product known as Firewax, negligently and carelessly failed to warn that this product was dangerous to the human body when it came into contact with the skin. The jury found the issues in favor of the defendant and the court entered judgment in favor of the defendant on the jury’s verdict. Plaintiff appeals from the denial of her post-trial motion for a new trial.

On August 19, 1961, John M. Arnold purchased a can of Firewax at plaintiff’s request and took it to the home of the plaintiff in O’Fallen, Illinois. Arnold sprayed this on some charcoal in a portable grill, with the plaintiff standing just a few inches away. Arnold “miscued” and allowed some of the Firewax to fall over the grill. Plaintiff did not notice any on her shoe at that time. One-half an hour to forty-five minutes later, while she was barbecuing, plaintiff felt a burning sensation at her foot. She then noticed a substance on her shoe that looked like the remains of the substance sprayed on the charcoal. Plaintiff wiped off the substance, took off her shoe, then put the shoe on again and continued to barbecue. About forty-five minutes to one hour later, after she finished barbecuing, she went indoors, removed her shoe, washed her foot, and applied medication.

Plaintiff did not have the substance in the can which she purchased tested, and it was not tested to her knowledge. Her examining physician did not test the substance and did not know the ingredients of Firewax.

Firewax is manufactured by E. M. Hollingshead Corporation. The defendant is the distributor. Firewax is sent to the defendant in cases, ready for resale. The label is on the product when it leaves Hollingshead Corporation.

Plaintiff claims that the court committed reversible error in permitting Dr. Harold C. Lederer, a biochemist and toxicologist employed by the Hollingshead Corporation to testify concerning the results of certain tests performed on this product under his direction and supervision. We do not believe plaintiff’s objection to this testimony was specific enough to make this point available for review, so we will not consider it in this opinion.

Plaintiff also claims the trial court committed reversible error in admitting inadmissible hearsay evidence on behalf of the defendant over plaintiff’s specific objection. In addition to giving testimony of his own on behalf of defendant, Dr. Lederer also read the results of a test conducted on Firewax by an independent biological laboratory into evidence over the objection of the plaintiff.

McCormick, Evidence, p 460, defines hearsay as “. . . such offered to show the truth of matters asserted therein and thus resting for its value on the credibility of the out-of-court assenter.”

Appellants cite numerous cases to the effect that it is hearsay to read the reports of another into evidence. Appellees do not contest the point that this was hearsay, but urge that the report was admissible as an exception to the hearsay rule.

Appellees rely principally upon Smith v. Broscheid, 46 Ill App2d 117, 196 NE2d 380 (1964) and upon Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 201 NE2d 742 (1964). In Smith a doctor testified as to the facts shown in an X-ray after another doctor had pointed out the indications and interpreted the results for the testifying doctor. The first doctor testified concerning things visible to him and within his own knowledge and expertise, i. e., he pointed out facts and indications on an X-ray which the second doctor who testified then saw and recognized. The second doctor was allowed to testify based on matters within his own knowledge which were first shown him or interpreted to him by the first doctor. He was allowed to base his expert opinion of what the pictures showed upon his own knowledge plus another expert’s opinion.

In Hickey the court concluded at page 139 that “it is proper for an attending physician to testify with respect to the pathology revealed by a myelogram or X-ray, even though he did not perform the myelogram or take the X-ray, and had sought the advice of a specialist in its interpretation, but the myelogram or X-ray must be produced and put in evidence so as to furnish the basis for cross-examination.”

In tests, the essential elements are the results, methods and qualifications of the tester. The method and qualification of the tester (to conduct the test and correctly read its results) give the results their veracity. Dr. Lederer was not testifying from his own knowledge about an exhibit (like the X-ray or myelogram) before the court. He could not be cross-examined about an exhibit before the court. He was not testifying from his own knowledge about an exhibit before the court; he knew no more about the independent tests than he had read (been told). The tests were not before the court and he could not be cross-examined about the method (save what he read about it) nor about the tester’s qualifications to perform the experiments and correctly interpret the results. Dr. Lederer was a stranger to the evidence he introduced. He knew nothing about it save through hearsay; he could not be cross-examined about the essence of the independent tests.

The lower court erred in admitting this inadmissible hearsay evidence. Dr. Lederer’s testimony did not come within the hearsay exception in Smith v. Broscheid, supra, or Hickey v. Chicago Transit Authority, supra.

Is this error so prejudicial to plaintiff that she is entitled to a new trial? When an appellant alleges there is insufficient evidence to support a verdict, he indicates the other party failed to prove his case. When an appellant alleges prejudicial error in the admission of inadmissible hearsay, he alleges the admission probably or substantially controlled the result. 5 Callaghan’s Illinois Evidence, 214 (1964).

Reviewing the various testimony, a physician testified for plaintiff-appellant that the injury “might or could have been caused by the material spilled on her foot”; Dr. Lederer, a biochemist-toxicologist, testified that Firewax as usually produced will not burn the skin; and finally, Dr. Lederer read the results of an independent testing firm.

The inadmissible hearsay was approximately one-half of the defendant-appellee’s case. Whether a jury, faced with a physician’s contrary testimony would, have believed defendant’s witness cannot be known. The effect of an independent laboratory’s test on the jury, however, lent an air of impartial veracity to Dr. Lederer’s opinion and test results; it did not come to light through a representative of that laboratory called by the defendant. The independent test results appeared, through hearsay, as an impartial imprimatur to Dr. Lederer’s expert opinion.

The inadmissible hearsay verified his results and opinion. Prior to the admission of the hearsay results, both plaintiff and defendant had expert opinion to support their allegations. Following the erroneous admission, the defendant had the apparent blessing and confirmation of an independent laboratory. These independent results have a misleading air of impartiality about them because defendant did not have to call the tester as a witness.

The error in admitting inadmissible hearsay was prejudicial to the plaintiff-appellant. The judgment is therefore reversed and the cause is remanded with directions to grant the motion for a new trial, and for such other and further relief as is not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

EBERSPACHER, P. J. and GOLDENHERSH, J., concur.


author: ALLOY, P. J.

text:
    Northern Illinois Gas Company, a Corporation, Petitioner-Appellee, v. Johannah H. Wienrank, et al., Donald R. Wienrank as Executor of the Estate of Christ J. Wienrank, Deceased, Defendants-Appellants.
    Gen. No. 65-25.
    Third District.
    December 22, 1965.
    Rehearing denied February 3, 1966.

      John Alan Appleman, of Urbana, and Eobert D. Mc-Knelly, of Watseka, for appellants.
    Isham, Lincoln & Beale, of Chicago, and Gray, Mc-Intire & Petersen, of Kankakee (Justin A. Stanley, Dean A. Esling, Eobert A. Helman, David L. Lange and Donald Gray, of counsel), for appellee.
   ALLOY, P. J.

This cause, which involves the condemnation of underground strata for gas storage purposes, was originally appealed to the Supreme Court of the State of Illinois. The Supreme Court, on March 10,1965, caused this action to be transferred to this court and, in so doing, observed that it was argued that the ruling excluding evidence of special value of the land for gas storage purposes deprived the landowners of due process of law and also violated the constitutional provision that private property shall not be taken for public use without just compensation. The court stated that substantially the same issues were involved in Midwestern Gas Transmission Co. v. Mason, 31 Ill2d 340, 201 NE2d 379, and Peoples Gas Light & Coke Co. v. Buckles, 24 Ill2d 520, 182 NE2d 169. In view of the decisions in such cases, the Supreme Court concluded that the constitutional issues are no longer fairly debatable, and transferred the cause to this court for determination.

The cause originated in four cases brought by Petitioner Northern Illinois Gas Company which were consolidated for trial. Actions were instituted under the Illinois Eminent Domain Act (Ill Rev Stats 1968, c 47, § 1, et seq.). As a result of such proceeding, Defendants were awarded a total of $27,508.35 as just compensation for the taking by Petitioner Northern Illinois Gas Company of certain subsurface easements in 366.7 acres for underground gas storage at a site near Crescent City in Iroquois County, Illinois. A change of venue had been granted from Iroquois County Circuit Court to Kankakee County Circuit Court on ground of alleged prejudice of the Presiding Judge. The cause was tried before a jury and extended over a period of nearly two weeks in November of 1963. Judgment orders were based on the jury’s verdicts.

On appeal in this court, Defendants assert that since the petition condemned a “permanent, assignable easement” in all strata from 590 feet below the surface to the bottom of the St. Peter sandstone (an easement acquisition of approximately 800 feet in depth) that such easement is a freehold, i. e. an interest in land to which the test is the value of the freehold taken plus the amount of damage to the remaining property. It is contended that the Trial Court erred in using improper standards or tests for the measurement of such value. It is also contended that the Trial Court erred in receiving testimony of Petitioner’s experts and excluding testimony of defense experts based on the following considerations:

1. That the testimony was restricted to a “single use” test, rejecting the test of concurrent consistent uses as comprising value.
2. That such testimony was restricted to a “single bidder” rule, rejecting testimony as to the existence of a competitive market and known values in that market.
3. All testimony of owners, it is contended, was rejected where based upon (a) adaptability of the land to irrigation (b) value under conditions of irrigation (c) destruction of such potential as a result of gas storage (d) diminution of market value from reasonable fears of gas escaping with subsequent damage to wells and property, and (e) capacity of the land to be used separately or in combination for storage purposes under newly discovered procedures.

It is contended basically that the exclusion of all such testimony, and adherence to the procedures followed in the case constituted reversible error.

There is also a contention that the Trial Court impeded discovery procedures by denying access to pump test data although Petitioner’s witnesses testified to these at time of trial and defense witnesses were cross-examined as to their ignorance of such data. It is likewise contended that the court took part in the trial by interrogation of witnesses and making of audible comments before the jury to such an extent that motions for mistrial should have been granted.

Petitioner was originally authorized to institute the condemnation action by an order entered by the Illinois Commerce Commission on April 18, 1962, which approved the preliminary development by Petitioner of an underground gas storage project near Crescent City. Some of the Defendants had intervened and participated in the proceedings before the Illinois Commerce Commission in opposition to the proposal by Petitioner to develop the project. An appeal was taken from the order of the Commerce Commission but was affirmed by the Circuit Court of Kankakee County and by the Appellate Court in Canady v. Northern Illinois Gas Co., 43 Ill App2d 112, 193 NE2d 48. Petition for leave to appeal was denied in the Supreme Court (in 28 Ill2d 625).

The petitioning utility is engaged in the business of distributing and selling natural gas to more than 800,000 customers in the northern part of Illinois, and is a public utility regulated by the Illinois Commerce Commission under the Illinois Public Utilities Act. The development of the Crescent City Field which was approved by the Illinois Commerce Commission is designed to allow Petitioner to store large volumes of natural gas in a geological structure approximately 1,200 feet below the surface of the land, and will aid Petitioner in meeting the rapidly expanding needs of the public for natural gas in the service territory. The land involved in the Petitioner’s preliminary development of the project has a total area of about 5,800 acres. The parcels involved in the case before us total an area 366.7 acres. The largest of the parcels is 120 acres in area and the largest contiguous area of any combination of the parcels is 160 acres with the smallest consisting of an area of 2 acres.

Gas storage in the field will take place in what is known as the St. Peter sandstone formation which in its natural state is saturated with water but which in the operation of the storage facility will have gas injected from the surface into the sandstone under pressure which pushes out and takes the place of some of the water in the pores of the sandstone. This is known as the aquifer-type gas storage project. No wells or other surface facilities of Petitioner will be located on the parcels of land involved in the case but the gas will enter the St. Peter sandstone under these parcels of land laterally after being injected through wells located on other parcels. Immediately above the St. Peter sandstone in the field are about 400 feet of alternating layers of limestone and dolomite and above that is a formation known as the Maquoketa formation which begins about 800 feet below the land surface and extends upward for about 200 feet to within 590 feet of the land surface. This formation consists of a lower dense shale member, a middle limestone member, and an upper dense shale member. Above this formation is the Silurian formation which is about 400 feet thick and immediately above that is glacial drift which is about 200 feet thick. It is contemplated and found in the order entered by the Illinois Commerce Commission that the injected gas would not rise into or through the Maquoketa formation and that it would be confined to the geological strata lying more than 590 feet below the land surface at the Crescent City Field.

In the condemnation petitions Petitioner sought and obtained under certain judgment orders, underground gas storage easements in the parcels of land involved in the case covering a portion of the subsurface which starts at a depth of 590 feet or more below the land surface and goes down through the bottom of the St. Peter sandstone formation. In the petitions to condemn Petitioner undertook to conduct its operations in such manner as will permit the owner or owners of the land or other persons claiming an interest therein for minerals thereunder to explore for, drill, recover oil or gas under the land, or drill wells on the land for development of the production of water or disposition of salt water, fresh water or waste material from any of the formations other than those between the bottom of the St. Peter sandstone formation and the top of the Maquoketa formation in such manner as will not impair the efficiency or safety of Petitioner’s operations.

The source of water in the Crescent City Field is in the glacial drift and Silurian formations, so that the water sources are above and would be protected by the Maquoketa formation since the deepest well on parcels of the land in question is about 130 feet deep and no farm water wells in the area go below the Silurian formation. The water in the area is of good quality and sufficient for the needs of the area. The lands are used for grain farming with the addition of livestock raising. None of the parcels has ever been irrigated but the farms had good crop yields in 1962.

The Illinois Commerce Commission order found that the Maquoketa formation at Crescent City Field would form an impermeable caprock or barrier to prevent the vertical migration of any injected gas which might reach it. An independent consultant to Petitioner testified that in his opinion the Maquoketa formation would form an impermeable cap at the Crescent City Field and also that the project had been tested more extensively than any project he knows of in the United States or in Europe. This consultant is a professor at the University of California who is obviously well qualified in the field. Three valuation witnesses presented by Petitioner each testified that the impressment and use to fullest extent of underground gas storage easements sought by Petitioner would in no way impair the use of each of the parcels for farming and residential purposes. They also testified that the highest and best use of each of the parcels of land on the respective dates when the petitions to condemn were filed, was for farming and residential use. Each of Defendants’ three valuation witnesses also testified that the parcels of land were used for farming and residential purposes on such dates and that without considering Defendants’ offer of proof concerning possible use for underground gas storage, the highest and best use of the lands was for farming and residential purposes. Petitioner’s valuation witnesses testified that the fair cash market value of each of the parcels for such use after the underground gas storage easement is impressed to its fullest extent on the parcels would be diminished by $25 per acre as compared to the value of the parcel for such highest and best use as of the date of the petitions for condemnation. Each witness also testified that in his opinion there would be no damage to the remainder of the land not taken as a result of the impressment of the easement. One of Defendants’ witnesses testified that the diminution in value on the same basis would be $125 per acre; another witness, that the diminution in value would be $250 per acre; and the third, that the diminution in value would be $275 per acre.

The jury viewed the surface of the parcels of land involved in the case and found that the fair cash market value of each of the parcels of land for its highest and best use as defined, that is, for agricultural and residential purposes, on the date of the condemnation petition would be diminished at the rate of $75 per . acre by impressment on the parcel of the underground storage easement utilized to its fullest extent.

Defense objections, which were overruled, to the testimony of Petitioner’s valuation experts were on the grounds (1) that a perpetual easement constitutes a freehold and that as such it must be valued separately (2) that the witnesses limited their testimony to a single use instead of the concurrent consistent uses to which the property was readily adaptable (3) that the opinions did not take into consideration a market value for the aquifer based upon competition therefor (4) that the witnesses were not qualified to express such opinion and (5) that no consideration was given to whether the land could be irrigated or the potentiality of gas escape or effect on value.

The primary question for consideration in this cause is whether or not the refusal of the Trial Court to admit evidence proffered by Defendants of the value of the parcels of land for underground gas storage was a proper ruling and consistent with the precedents in this State. The Trial Court refused to admit the evidence on the ground that it involved matters too remote and speculative to be relevant in the case and, in the process, relied upon the decisions of the Illinois Supreme Court in Peoples Gas Light & Coke Co. v. Buckles, 24 Ill2d 520, 182 NE2d 169, and Midwestern Gas Transmission Co. v. Mason, 31 Ill2d 340, 201 NE2d 379. In both the Buckles and Mason cases, the utility company had received from the Illinois Commerce Commission under the Illinois Gas Storage Act authorization to bring the condemnation proceedings to obtain an easement for underground gas storage. In each of the cases, the landowner received as just compensation the fair cash market value of the parcel of land in question for its highest and best use on the date the petition for condemnation was filed, less the fair cash market value, on the same basis, after the parcel had been impressed to the fullest extent with the gas easement being taken. In each of these cases, the Supreme Court approved the rejection of evidence offered by the landowner of the value of the parcel for underground gas storage upon the ground that such proffered evidence was too remote and speculative.

An attempt is made to distinguish the present case on the facts from Buckles and Mason. For example, it is contended that the gas company in the Buckles case sought an underground gas storage easement in only a single geological formation, the St. Peter sandstone, while in the present case, the Petitioner seeks an underground gas storage easement in several geological formations ranging upward to the Maquoketa formation. We see no substance to this argument particularly in view of the fact that in the Mason case the utility company did, as here, seek underground gas storage easements in several subsurface formations.

It is also contended that the underground gas storage easements which Petitioner seeks herein are somehow different from underground gas storage easements which the gas company sought in the Buckles and Mason cases in that the Petitioners here are seeking a “permanent assignable easement” as opposed to what Defendants contend were limited easements taken in the Buckles and Mason cases. In the Buckles case, the gas company sought and obtained an “exclusive easement” for underground gas storage. In the Mason case, the gas company obtained a “permanent exclusive easement” for the same purpose. In the case before us, Petitioner sought and obtained an “exclusive easement” which easement is by its terms “perpetual and assignable by Petitioner to other authorized public utilities.” We see no basic or fundamental difference in the easements sought in each of the three cases. They were easements for public utility facilities and assignable to other public utility corporations. It is further contended that while the takings in the Buckles and Mason cases were of limited easements, that in the present the easement was of a higher quality, a freehold, and, therefore, that a different measure of compensation must be applied. The Supreme Court of this State has stated in Peoples Gas Light & Coke Co. v. Buckles, 24 Ill2d 520, at 532, 533, 182 NE2d 169, “No taking of the fee or damage to the surface of land is involved. Plaintiff’s taking amounts to no more than an easement, and the usual measure of damages payable to such cases is based upon diminution of the fair cash market value of the property burdened by the easement.” This recital specifically answers the contention made by Defendants herein referred to and the conclusion would be applicable in this case.

It is also reasoned that in the Buckles and Mason cases the Court found that there was no competent evidence that the geological formations in which the gas was to be stored had any value, while in the present case Defendants offered evidence as to the value for underground gas storage of such subsurface formations. This analysis is contrary to the conclusion in both the Buckles and Mason cases where the court concluded that evidence of the value of small parcels of land for underground gas storage was too remote and speculative to be admitted or considered. In the scholarly brief presented by Defendants it is suggested that this court overrule the Buckles and Mason decisions at least as applied to the state of facts before us in the instant case. An examination of such cases and the facts and circumstances in the present case furnishes, we believe, no reasonable basis for overruling or distinguishing the principles announced in both the Buckles and Mason cases and we, therefore, believe that the Triál Court properly determined that evidence of the value of the parcels for underground gas storage was too remote and speculative to be admissible, particularly in view of the fact that there was no basis in the evidence to show that there was a reasonable possibility that the small parcels could be used as individual underground gas storage projects.

We also feel that the refusal of the Trial Court to admit Defendants’ tendered evidence relating to the adverse effect of the possible gas leakage was proper under the record before us. The Commerce Commission proceeding in its order which authorized Petitioner to bring present condemnation proceedings culminated in a finding that the Maquoketa formation would provide an impermeable caprock for the project, and that order was affirmed specifically in Canady v. Northern Illinois Gas Co., 43 Ill App2d 112, 193 NE2d 48. In the Canady case, the Appellate Court was considering the propriety of the Illinois Commerce Commission order as reviewed under the Gas Storage Act (Ill Rev Stats 1961, c 104, §§ 104-112) and determined that the order of the Commerce Commission approving the project was not contrary to the manifest weight of the evidence in the finding that there would be no adverse effect on water resources. As we view the record in this case, there was no attempt to undertake a collateral attack on the Commerce Commission order, which would not have been sanctioned (Peoples Gas Light & Coke Co. v. Buckles, supra; Chicago North Shore & M. R. Co. v. Chicago, 331 Ill 360, 163 NE 141). The Trial Court in this cause actually heard evidence on the issue of whether or not there was a reasonable possibility that the injected gas would migrate above the Maquoketa and, on the basis of the record, concluded that the substantial weight of the evidence supported a conclusion that there was no reasonable possibility of such gas leakage above the Maquoketa. We believe the record sustains that conclusion. One of the Defendants’ two technical witnesses expressed no opinion on the likelihood of gas leakage above the Maquoketa. The other witness who did assert that it would not be an impermeable caprock stated that he had not examined the cores taken from the Maquoketa in the Crescent City Field and admitted that he had previously testified in the Commerce Commission proceeding to the effect that he would not expect the gas to get through that shale to the surface as he felt it was a good tight rock. Evidence concerning other unrelated gas storage projects, where no degree of similarity is shown, would not have been proper. It was indicated by the expert witnesses that each of the storage projects must be studied on its own merits and that caprock properties are not necessarily uniform from one aquifer project to another.

The attempt to offer evidence of other unrelated gas storage projects, namely Herscher and Mohamet, to show a reasonable possibility that there would be gas leakage above the Maquoketa failed, under the record, to show a reasonable similarity between the gas storage project under consideration and the other projects referred to. The Trial Court’s conclusion, on the record, that there is no reasonable possibility that gas injected into the Cresent City Field would migrate vertically above the Maquoketa formation, likewise justified the court’s refusal to allow testimony as to adverse effect or danger of fire and destruction of water resources in the glacial drift and Silurian formations of possible gas leakage above the Maquoketa formation. Before consideration of an element of danger and diminution in value there must be a substantial danger or reasonable possibility of a direct disturbance of a property right (Central Illinois Light Co. v. Nierstheimer, 26 Ill2d 136, 185 NE2d 841; Illinois Power & Light Corp. v. Talbott, 321 Ill 538, 152 NE 486). In both of the cases referred to, the Supreme Court held that fear of danger and fire may not be considered as elements of damage or in diminution of value in cases involving condemnations of easements for overhead power lines. Under the record in this case we believe the same principle would apply here.

It is apparent from the record that present water resources in the glacial drift and Silurian formations would not be affected by the underground gas storage and there was no showing of a reasonable possibility that the user would have cause to go below the glacial drift and Silurian for water supplies. To the extent that there might be any loss of water in the St. Peter formation and other strata covered by the gas storage easement, the jury heard the valuation witnesses testify with respect to the effect on water in such formations and apparently considered it in arriving at the award. Similarly, the contentions made with respect to possible irrigation of the farms does not make the awards inadequate on the record before us. The evidence indicated that present water resources, which would not be affected by the underground gas storage, would be sufficient to support irrigation of the farms if such irrigation were undertaken.

Action of the Trial Court in sustaining objections to an opinion from a witness tendered by Defendants was proper, since the Trial Court has a broad discretion in determining whether or not a witness has been qualified as an expert in a manner which would allow him to present opinion evidence (County of Cook v. Holland, 3 IU2d 36, 119 NE2d 760). The witness had testified that he was a vegetable and grain farmer and irrigates his farm and there was no evidence as to the similarity of the particular land to farms which the witness had seen which might have been irrigated or to his own farm nor was he an expert on irrigation in any respect. Similarly, another witness who was asked his opinion as to the adequacy of the glacial drift water supply to support irrigation, had indicated that he had made no specific studies of ground water reserves in the county. It is obvious that the court did not abuse its discretion in refusing such testimony. The fact that a witness actually testified as to some related matters on behalf of Petitioner (but who was qualified as a geologist and hydrologist and who was also familiar with the water resources in the area, having studied these matters) furnished no substantial basis to reverse the ruling of the

Trial Court as to witnesses referred to which it deemed nonqualified.

It is also contended by Defendants that the Trial Court in making rulings on the evidence, by implication criticized or rebuked counsel for Defendants in a manner which prejudiced Defendants in the eyes of the jury and also that Defendants were prejudiced when the Trial Court questioned certain witnesses and thereafter made rulings. While the record discloses that the Trial Court sustained Petitioner’s objections to Defendants’ evidence and offers of evidence, such rulings were consistent with the precedents referred to in the course of this opinion. As stated in Department Of Public Works & Buildings v. Diggins, 374 Ill 11, at page 16, 27 NE2d 826, while remarks of a court made to or in the presence of the jury and having the force of an instruction or opinion on the evidence may be ground for reversal, the Trial Court may properly give its reasons for ruling upon the evidence and it should be accorded reasonable latitude in so doing. As indicated in that case, not every unguarded expression of the Judge stating his reason for his ruling can or should be treated as a ground for granting a new trial unless prejudicial error is clearly shown. The court undertook to question certain witnesses. As the record shows, this was largely done prior to ruling on motions as to their testimony and obviously for the purpose of being clear as to the testimony before ruling on the motion. Such occasional questioning by a Trial Court in absence of a manifest abuse of such procedure would not constitute reversible error (People v. Filas, 369 Ill 51, at 55, 15 NE2d 496).

On a review of the record and considering the testimony of the valuation witnesses, the verdicts of the jury awarding Defendants $75 per acre was consistent with the range of the testimony as actually presented. Where the court sustained objections to Defendants’ interrogatories demanding information concerning certain “vertical water seal tests” undertaken on behalf of the Petitioner it was apparent that such test concerned only the feasibility of the gas storage project in the case and the disclosure could not have led to any relevant evidence on the basis of the record before us. The record indicates that Defendants’ technical witnesses had been supplied with virtually all of the pumping test results in connection with the Commission proceeding and it is difficult to see how Defendants were prejudiced in this respect. The court sustained objections to the offer of extracts from articles regarding “waterwall” experiments on the ground that they involved matters too remote and speculative and that the evidence was not properly presented, since nothing in the record justified the conclusion that such use could be made of the tracts in question. On the basis of the exhibits in the record it appears that the court was right in making such ruling.

Condemnation was undertaken and justified on the principle of nonleakage of gas above the Maquoketa formation and noninterference with water supplies in the glacial drift or Silurian formations but only in the St. Peter formation and other strata covered by the gas storage easement. It is axiomatic that if leakage does in fact occur in the future which causes damage outside the easement area, nothing in this proceeding would preclude recovery for such damage if the action for recovery is otherwise on a sound basis authorizing recovery.

Defendants also contend that they had the right to open and close in the case. At the same time they recognized that Petitioner has the burden of establishing the just compensation which Defendants are to receive. The ruling of the Trial Court in granting the right to Petitioner to open and close and in final arguments is consistent with previous rulings on the same issue in eminent domain cases (South Park Com’rs v. School Trustees, 107 Ill 489; McReynolds v. Burlington & O. B. Ry. Co., 106 Ill 152, 157).

We do not believe it would be helpful to extend by repetition the conclusions of this court as to contentions made by Defendants which relate to or are similar to other contentions specifically discussed. A detailed analysis and further discussions of the contentions made by Defendants would require a repetition of conclusions stated in the course of the opinion and of the specific language of both the Peoples Gas Light & Coke Co. v. Buckles, supra, and Midwestern Gas Co. v. Mason, supra. We believe that the conclusions of the Supreme Court in these cases are precedents which are directly applicable to the cause before us. On the basis of such cases and on a review of the record, it is apparent that the jury awards should be sustained. The proper standards for consideration of damages and the evidence relating thereto were applied consistently with the precedents of the Buckles and Mason cases. The case was tried fairly and the damages awarded were consistent with the evidence. The record discloses no errors in the proceeding which would require reversal. Accordingly the judgment of the Circuit Court of Kankakee County will be affirmed.

Affirmed.

STOUDER and CORYN, JJ., concur.