text:
    Lorraine Koehler, Plaintiff-Appellee, v. The Great Atlantic and Pacific Tea Company, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 67-82.
    Second District.
    December 28, 1967.

      McCIory, Bairstow, Lonchar and Nordigian, of Waukegan, for appellant.
    Morrison and Nemanich, of Waukegan, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Defendant appeals from a judgment rendered against it in the amount of $10,000 following a trial by jury. The plaintiff had sued, claiming injuries when she slipped and fell on the exterior entranceway of the defendant’s store while she was leaving after making purchases at the store. The issues presented by the appeal are whether there is any evidence to support a finding of negligence against the defendant, whether the verdict is against the manifest weight of the evidence, whether the trial court correctly permitted the introduction into evidence of a certain deposition and whether the verdict was excessive.

There was evidence offered from which the jury could reasonably find that on July 3, 1964, the plaintiff entered defendant’s grocery store at Tenth and Lewis Streets in Waukegan, Illinois, to shop for groceries. She was accompanied by her nephew. After shopping, and while she was walking out of the exit door, she slipped and fell on the concrete.

The store is located in a shopping center and, as the plaintiff walked out of the exit door, she first passed over a rubber mat and then onto a concrete sidewalk above which was a canopy or marquee. The rubber mat was situated three or four inches higher than the main portion of the sidewalk in front of the building. There was a slight incline from the edge of the mat to the main portion of the sidewalk. The inclined area was perhaps two feet in dimension from the mat to the level sidewalk and although the grade of the sloping was testified to as a 20% or 20-degree slope, it would appear to us from an examination of the photographs in evidence that it was, in fact, closer to a 10-degree slope. It was on this slope that plaintiff slipped and fell.

There was evidence that, although there was no freshly spilled or dropped debris or foreign substance on the concrete, still it was smooth, shiny and discolored. The nephew scraped the discolored area with his fingernail and a substance that felt like wax came off. Four days after the accident a chemist, employed by the plaintiff, examined the concrete surface and described the area as being shiny with a thin coat of wax. The chemist scraped a little bit of the wax with his fingernail but could not scrape it with a knife because sand came off the cement when he attempted to do so. The next day he returned with a solvent and removed a portion of the substance from the surface. Upon chemical examination of the substance, he determined it to belong to the wax family.

There was evidence that the accident occurred about 9:30 a. m. and that the outside entranceway had been swept at 9:00 a. m. that same day.

It was the practice of the store to broom sweep the exterior entranceway daily and to hose it down occasionally but not to clean it otherwise. The interior of the store was regularly cleaned and waxed with a material called “Sole-Grip” which is described as a nonslip material which is not subject to trackage either from shoes or wheels of shopping carts. There was also testimony that the characteristics of the substance which the plaintiff’s chemist found could possibly come from chemicals used in the production of shoe leather.

Following the accident plaintiff was treated by a doctor who diagnosed her injuries as a fracture of the left patella. A cast was applied and the patient placed on crutches. Five weeks later the cast was removed and she was later examined by a second doctor, Dr. John B. Griffin, now a resident of California, who found a post-traumatic arthritic condition. His final diagnosis was post chondromalacia of the patella and an ununited fracture of the lateral tibial spine.

The plaintiff’s medical expenses consisted of $51 for x rays, $13 for outpatient treatment at the hospital and $153 in physician’s fees. There was also evidence that she might need additional surgical treatment of the patella and that the surgical fee for that service would be about $500 and there would be hospitalization of seven to ten days.

Plaintiff testified she was having trouble with the knee, that it was uncomfortable, that it would “creak and crack” when bent and that she continued to have swelling in the knee. She said she was unable to engage in bowling, cycling, boating and gardening which she had done before the accident, that she was restricted in her housework and that she could no longer help her husband with his business by tending and cleaning the shop. She was 44 years of age and has two children.

With respect to the defense arguments that the trial court should have granted a motion for a directed verdict and a judgment in favor of the defendant notwithstanding the verdict, we must consider whether or not all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defense that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & E. R Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

The proprietor of a business establishment has the duty to exercise reasonable care to keep the property reasonably safe for the use of a customer. This duty is violated when the proprietor negligently allows such conditions to exist on the property which imperil the safety of the business invitee upon the premises. Geraghty v. Burr Oak Lanes, Inc., 5 Ill2d 153, 157-158, 125 NE2d 47 (1955).

The factors to be considered here in determining whether or not there has been a violation of the duty are: 1) Did the plaintiff fall? 2) Was there a foreign substance on the floor? 3) Did the foreign substance cause or contribute to cause the fall? 4) Was the foreign substance placed by the defendant or its employees or, if it was not, did the defendant have actual or constructive knowledge of the existence of the foreign substance ? 5) Did the defendant take reasonable precautions to correct the condition? We believe that the evidence did establish that the plaintiff fell and that there was a foreign substance on the incline.

It may well be that the foreign substance was not wax from the interior of the store transferred to the exterior concrete by customers’ shoes or shopping carts and there is no proof as to where the substance came from, who placed it there, or how long it had been on the concrete, however, the evidence that the concrete was smooth, that plaintiff was on a downhill incline and that the substance was slippery and waxy in nature is sufficient to find a causal relationship between the foreign substance and the fall. While there is no evidence as to how the substance came to be on the concrete, still, there was evidence that the concrete had been broom swept approximately one-half hour earlier, that the substance discolored the concrete and that it was still present some four days later, presumably after four additional sweepings. We believe that this circumstantial evidence was sufficient for the jury to conclude that the substance had been there for an adequate period of time for the defendant, in the operation of due care, to have discovered its existence. See Burns v. Goldammer, 38 Ill App2d 83, 86-88,186 NE2d 97 (1962). Finally, since the jury might well find that since the broom cleaning did not remove the substance, the defendant had not exercised due care in curing the condition.

We have reviewed all the evidence in connection with defendant’s argument that the verdict is contrary to the manifest weight of the evidence. We note that the testimony of the nonmedical witnesses is not necessarily in conflict since plaintiff does not urge that the foreign substance was floor wax from inside the store. We also note that there were no occurrence witnesses other than those offered by plaintiff. The discrepancies between plaintiff’s testimony at the trial and her discovery deposition were minimal.

From this and our review of the evidence set forth above we conclude that, although the liability issue is not without question, the verdict of the jury is not contrary to the manifest weight of the evidence and was not such that the court should have granted a directed verdict or a later motion for judgment notwithstanding the verdict.

It is next contended that the trial court erred in admitting the testimony of Dr. Griffin taken in California by means of an evidence deposition. The basis for the objection is that defendant had submitted written interrogatories to the plaintiff requesting, among other things, certain information with respect to each physician consulted by the plaintiff subsequent to the occurrence. The information requested was the name and address of the physician, the date of each visit or consultation, the place of each visit, the condition for which he was consulted, whether he was examined or treated, the amount of the bill, the date of each written report and the name and address of the person having custody or possession of the report.

The answer to interrogatories insofar as it applies to Dr. Griffin was as follows:

“John. B. Griffin, M.D., 1950 Sheridan Road, Highland Park, Illinois (also seen at Lake Forest Hospital, Lake Forest, Illinois, January and March, 1966), seen first on February 10, 1965; seen again on July 26, 1965; report of examinations and treatment in 1966 at present reported to have been cortisone infiltrations; medical reports are in possession of attorney for Plaintiff.”

Defendant contends that although plaintiff’s counsel had furnished to the defense a medical report dated August 20,1965, that a comprehensive report from the doctor dated March 20, 1965, was not furnished. We do not believe that the court would have been justified in excluding the deposition for this reason. The answer to interrogatories revealed that medical reports were in the possession of the plaintiff’s counsel and it would appear that the defense made no objection to the answer to interrogatories.

It would also appear that the March 20th report was furnished to the defense co-counsel in California at the time the evidence deposition was taken and that there was, in fact, no substantial difference between the two reports.

Finally, defendant argues that the verdict of the jury was excessive citing Wyer v. McKeown-Phalin Chevrolet, Inc., 74 Ill App2d 283, 219 NE2d 355 (Abstract 1966). Defendant urges that the radiologist, Dr. Audrey Wilson, who took x rays on the date of the accident found an ancient fracture of the left knee as well as a recent fracture. She took no x rays of the other knee for comparative purposes so it is difficult to determine whether the old condition was congenital or traumatic in origin. The plaintiff denied having any prior complaints or troubles involving the left knee.

There was positive proof of the recent fracture and there was adequate medical proof of the post-traumatic condition which gave rise to the resulting permanent pain and disability. Future surgery would partially relieve the condition but such surgery would, of course, involve a substantial additional cost for medical and hospital services. It is our opinion that the verdict, although higher than what normally might be expected for an injury of this nature, is not so excessive as to indicate prejudice on the part of the jury toward the corporate defendant or to require either a remittitur or a new trial on the issue of damages.

Just as with respect to liability, this case is not without question on the extent of the damages, however, we believe the case was well tried by both parties in the trial court and the issues in conflict have been ably presented to us here. We do not find justification to disturb the jury’s findings and the resulting judgment in either respect.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Jill K. McNulty, Appellant.
    Gen. No. 67-46. (Abstract of Decision.)
    Third District.
    December 29, 1967.
    Rehearing denied February 9, 1968.

      Louis F. Knoblock, of Peoria, and John W. McNulty, of Chicago, for appellant; George Kennedy, State’s Attorney, of Peoria, for appellee.
   Opinion by JUSTICE HOFFMAN. Not to be published in full.


author: EBERSPACHER, P. J.

text:
    People of the State of Illinois, Appellee, v. Irvin D. Moore, Defendant-Appellant.
    Gen. No. 67-79.
    Fifth District.
    December 29, 1967.

      Richard E. White, of Murphysboro, for appellant.
    William B. Starnes, State’s Attorney of Randolph County, of Chester, for appellee.
   EBERSPACHER, P. J.

This is an appeal from the Circuit Court of Randolph County from a judgment on the verdict finding the defendant guilty of the offense of Aggravated Battery.

The defendant was charged in an indictment returned September 7, 1966. The indictment contained two counts, Count I charging him with the offense of Aggravated Battery and Count II charging him with the offense of Attempt to Commit Rape. The case was tried before a jury and the defendant was found guilty of Aggravated Battery and not guilty of Attempt to Commit Rape.

Seeking to reverse the judgment the defendant attacks the sufficiency of Count I of the indictment and alleges that the court erred in the admission of certain physical evidence.

The substantive portion of Count I of the indictment charges that “. . . on the 15th day of May, 1966, in said county, Irvin D. Moore committed the offense of Aggravated Battery in that he did knowingly, without legal justification, commit a battery on Louise Wilson, inflicting on her great bodily harm, by striking and injuring said Louise Wilson, and causing disfigurement to her, in violation of Paragraph 12-4(a), Chapter 38, Illinois Revised Statute . . .”

The basis of the defendant’s objection, as we understand it, is that Count I does not charge an offense in that the nature and elements of the offense of aggravated battery are not set forth as required by chapter 38, section 111-3, Ill Rev Stats 1965. The defendant reasons that chapter 38, section 12-3 provides:

“A person commits battery if he intentionally or knowingly without legal justification and by any means, . . . causes bodily harm to an individual

and that chapter 38, section 12-4, Ill Rev Stats 1965 provides :

“A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commit aggravated battery . . .”

and that accordingly the indictment must charge that the defendant intentionally or knowingly committed a battery and that in so committing said battery intentionally or knowingly caused great bodily harm or permanent disability or disfigurement.

Even assuming the defendant’s argument to be correct, it is our opinion that Count I of the indictment is sufficient. The issue raised by the defendant is really a question of grammar. The question posed is whether the allegation of intent contained in the body of the indictment applies to or modifies only the phrase that follows it or all of the remaining allegations of the indictment. To hold, as is urged by the defendant that the allegation of intent applies only to the phrase dealing with battery would be a step into the past when such strict construction of pleadings was countenanced. It is our opinion that the allegation of intent can easily be construed to apply to all of the remaining allegations of the indictment and that is our holding.

The purpose of the indictment is to apprise the defendant of the charge against him. People v. Cohen, 303 Ill 523, 135 NE 731 (1922). There is no claim that the defendant was surprised at trial or unable to meet the charge or make preparation for his defense for want of greater certainty or particularity. The indictment meets the requirements of chapter 38, § 111-3, Ill Rev Stats 1965. Count I of the indictment sufficiently apprises the defendant of the charge against him.

The second allegation of error, however, is more serious. Prior to trial the defendant filed a motion seeking the production by the State of physical objects which the State expected to introduce at the trial. The State voluntarily answered the motion wherein it stated that the State had no physical objects except photographs of the complaining witness which the defendant could examine. However, during the course of the trial the State displayed before the jury, and introduced into evidence over objection of the defendant certain torn garments which were shown by the evidence to have been worn by the complaining witness at the time of the offense. Upon their being displayed, defendant promptly moved for a mistrial.

During argument of counsel outside the presence of the jury as to the admission of these objects, the State’s Attorney informed the court that he had been unaware of them until they were brought to his attention by the sheriff on the day of the trial. The State’s Attorney further represented to the court that he had been absent from his county for a considerable length of time in connection with the Menard Penitentiary murder case tried in Springfield, Illinois, and that the offense not only occurred during his absence but that a new sheriff was elected during the interim. We also note, and consider of particular importance, that during the aforesaid arguments the State offered the articles for inspection by the defendant. Rather than accept the offer of inspection, it appears that the defendant was content to stand by his objection and motion for mistrial.

The argument of the State that the defendant was not entitled to require production of the objects prior to trial is without merit. Without passing on the question of whether the defendant was entitled to the production of the physical objects the short answer to the State’s argument is that they voluntarily informed the defendant that they had no such objects other than the photographs. Surely the defendant should be able to rely upon the word of the State, regardless of changes in office and an unusual work situation in the office of the State’s Attorney. We cannot condone the prosecution’s lack of knowledge concerning the clothes of a prosecutrix in a case in which attempt to rape is charged.

Nevertheless, although it is our opinion that the court committed error in the admission of the objects into evidence, it is our opinion that the error was not of sufficient magnitude, based upon the facts of this case, as to require reversal.

Pictures taken shortly after the attack, displaying prosecutrix’ bruises and other injuries had been admitted into evidence. The complaining witness had already testified in detail as to the condition of her clothing occasioned by the defendant’s attack. The exhibition of the clothing before the jury was merely cumulative of this testimony. Likewise it is our opinion that the exhibits have little probative value as to the offense of which the defendant was convicted. Their probative value as we see it lies in proof of the offense of Attempt to Commit Rape as charged in Count II of the indictment. The jury found the defendant not guilty of that offense; and thus the error in that cause is not here material. There was ample evidence, without the clothes, on which the jury could return a verdict of guilty on the aggravated battery count.

The defendant’s reliance on People v. Hoffman, 32 Ill2d 96, 203 NE2d 873 (1965); People v. Buzan, 351 Ill 610, 184 NE 890 (1933); People v. Gerold, 265 Ill 448, 107 NE 165 (1915); Miller v. Pate, 386 US 1, 87 S Ct 785, 17 L Ed 2d 690 (1967); People v. Hoagland, 83 Ill App2d 231, 227 NE2d 111 (1967); People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1961); and People v. Dickelmann, 367 Ill 322, 11 NE 2d 420 (1938) is misplaced. In each of these cases the issue involved was withholding or suppression of evidence by the State. In our opinion the State would have committed a serious error in the present case if they had secreted the existence of the clothing after being informed by the sheriff of their existence. We do not consider that here, suppression of the clothes until trial deprived defendant of any defense to the aggravated battery charge.

It is noteworthy and we have placed reliance upon the specific finding of the trial court that the prosecutor had been candid and had produced the clothing when he became aware of it and had been truthful in stating that he had no knowledge of the items until the day of trial; and that the trial court found they contained no blood marks, were only torn and dirty, and contained nothing to excite the feelings of the jury, although there was evidence of the complaining witness shedding blood. Defendant does not contend the clothes were bloody.

For the aforegoing reasons the judgment of the Circuit Court of Randolph County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: MORAN, J.

text:
    Stevan Donehue, by Marie Donehue, His Mother and Next Friend, Plaintiff-Appellant, v. Elmer Duvall and Peggy Duvall, Defendants-Appellees.
    Gen. No. 67-55.
    Fifth District.
    December 30, 1967.

      Harris, Holbrook & Lambert, of Marion, for appellant.
    Twente & Jelliffe, of Harrisburg, for appellees.
   MORAN, J.

The plaintiff, Stevan Donehue, an infant of five years of age, filed a complaint by his mother, Marie Donehue, for personal injuries against the defendants. The complaint was dismissed for failure to state a cause of action, with leave to amend. An amended complaint was thereafter filed. The trial court sustained a motion to dismiss for failure to state a cause of action and entered a judgment for the defendant. The plaintiff appeals.

The amended complaint alleged that the defendants piled several loads of dirt in their back yard on November 18, 1965; that “at all times from November 18, 1965, to November 22, 1965, children in the neighborhood, including the plaintiff, played upon the pile of dirt, consisting among other things of hard clay clods, similar to and as large and hard as a baseball; that within said pile of dirt and within said clods was broken glass, all of which defendants knew or should have known by the exercise of reasonable care.

“Defendants knew that the children in the neighborhood, including the plaintiff, had frequented the pile of dirt, which was interspersed with broken glass, where the children had played and knew that the large clods con-taming broken glass upon the pile of dirt created a hazard dangerous to children.

“At all times herein mentioned the pile of dirt, consisting of hard clods and broken glass, was a condition which existed upon the defendants’ premises, which they knew or in the exercise of ordinary care should have known involved a reasonably foreseeable risk of harm to children.” That the defendant foresaw or should have foreseen that children would play in the dirt and throw clods at each other; and that the expense or inconvenience to the defendants in remedying the condition would have been slight compared to the harm to the children.

The amended complaint also alleged that on November 22, 1965, the plaintiff and other children were playing on the dirt pile and that one of the children threw a clod of dirt containing glass which hit the plaintiff in the eye, causing plaintiff to lose his eye. It further alleged that the loss of the eye was caused by the defendants’ negligence in (1) keeping the pile of dirt consisting of broken glass and hard clods, which created a condition hazardous to children, all of which defendants knew or should have known; (2) that the pile of dirt attracted children to play there, which was foreseeable and a hazard to children; (3) allowing the clods and pile of dirt to remain there when they knew or should have known that the children would throw the clods at each other; (4) allowing the clods and glass to remain there when the clods were inherently dangerous and (5) failing to fence off the pile of dirt. The plaintiff contends that a cause of action based on negligence is stated if there are facts to show a duty, a breach of duty, and a resulting injury. Fanning v. LeMay, 78 Ill App2d 166, 222 NE2d 815.

We need only determine whether, under the pleadings, the plaintiff could prove a submissible case. The plaintiff contends that the facts alleged are sufficient to indicate that the defendant had a duty to take precautions against the injury complained of and relies principally upon Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, where a child was injured when a pile of lumber toppled over at a construction site. The court in allowing recovery, spelled out the modern version of the “turntable” or “attractive nuisance” doctrines. After stating the general rule that minority of itself does not impose a duty upon the occupier of land, the court indicated that an exception exists and specified the elements essential to state a cause of action under the exception. A plaintiff must show that (1) the occupier knows that young children frequent the vicinity; (2) there is a “defective structure or dangerous agency” which is present on the land; (3) this defective structure or dangerous agency is likely to cause injury because of the child’s inability to appreciate the risk and (4) the expense of remedying the situation is slight. If these conditions are met then the owner or occupier has a duty to exercise due care to protect the children. The court concluded that the element of attraction is significant only in that it indicates the trespass should be anticipated and that the basis for liability is foreseeability of harm to the infant.

A pile of dirt located in the back yard or anywhere else is, without a doubt, attractive to children. Thus in the present case it is likely that the defendants knew of the children’s presence or, from the nature of the attraction itself, should have reasonably anticipated their presence. However, implicit in the holding of Kahn and the other cases cited by the plaintiff is the requirement of reasonable foreseeability of harm to the infant.

The original complaint alleged that the pile consisted of clods of dirt. We are of the opinion that such a pile would not be a defective structure or dangerous agency and it would not be reasonably foreseeable that serious injury would result. However, the amended complaint contained all of the elements necessary to state a cause of action under the guidelines of the Kahn case. We said in Fanning v. LeMay, 78 Ill App2d 166, 222 NE2d 815, that in a negligence action a complaint is sufficient if the facts alleged are such as to raise a duty, show a breach of duty and a resulting injury. Where a defendant has filed a motion to dismiss the complaint, all facts well pleaded in the complaint are to be taken as admitted. Schuler v. Board of Education, 370 Ill 107, 18 NE2d 174.

If we assume all of the facts in the complaint to be true as we must do where there is a motion to dismiss, the complaint states a cause of action.

For the foregoing reasons the judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward R. Fortin, Defendant-Appellant.
    Gen. No. 67-22. (Abstract of Decision.)
    Fifth District.
    January 10, 1968.
    D. R. Kinder, of Litchfield, for appellant; Otto E. Funk, State’s Attorney of Montgomery County, of Hillsboro, for appellee.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.


author: TRAPP, J.

text:
    Eugene F. Kwiecien, et al., for Themselves and on Behalf of and for the Use of All Other Property Owners Similarly Situated, Plaintiffs-Appellees, v. Village of Dolton, Illinois, a Municipal Corporation, The First National Bank of Blue Island, as Trustee Under Trust No. 1349, and James T. Wilkes, Jr., Beneficiary Under Said Trust, and All Other Beneficiaries Under Said Trust, and William A. Chapman & Company, a Delaware Corporation, Defendants-Appellants.
    Gen. No. 51,343.
    First District.
    January 3, 1968.
    Rehearing denied February 7, 1968.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago, Crane, Hughes & Winterhoff, of Harvey (Jack M. Siegel and R. Marlin Smith, of counsel), for appellants.

      Eugene F. Kwiecien, of South Holland, for appellees.
   TRAPP, J.

The defendants, The First National Bank of Blue Island, as Trustee under Trust No. 1349, James T. Wilkes, Jr., beneficiary under such Trust, and William A. Chapman & Company, contract buyer of the Trust property, appeal from a decree which declares unconstitutional and void an amendatory ordinance rezoning of the property in which appellants have the described interests, and enjoined the Village and its officials from issuing building permits. Plaintiffs in the suit were certain property owners, some of whom owned residences across the street from, and facing the property which was the subject of the rezoning.

The area which includes the rezoned parcel, hereinafter referred to as the “property,” is a portion of the Village of Dolton, rectangular in shape, roughly 2,500 feet north and south and the same east and west, bounded on the north by 154th Street, on the south by the Calumet River which is south of 158th Street, on the west by Cottage Grove Avenue, and on the east by a line east of University Avenue. The “property” is a tract of 7.44 acres in the southwest portion of the area bounded on the south by 158th Street, on which it has a frontage of 504 feet, on the west and east, respectively, by Cottage Grove Avenue and Drexell Avenue, on each of which it has a frontage of 585.07 feet, and on the north by a three-acre tract now used as an asparagus farm.

Prior to the amendment in question, the area was zoned R-l, R-2 and R-3 Residential, except for a tract of approximately the same size as the “property” on the southwest corner of 154th Street and Cottage Grove Avenue, which was zoned and used as a planned shopping center. The “property,” the land immediately north, the land immediately south, and certain property in the southeast corner of the area, but not adjoining the “property,” were zoned R-2. The balance of the area, being the greater part thereof, and including the land east of Drexell Avenue and facing the “property” was zoned R-3 Residential, except a small portion north of the asparagus farm which is zoned R-l Residential. The land west of the “property” across Cottage Grove Avenue is in the Village of South Holland.

The land use of the area is single-family residence or vacant, except the shopping center above mentioned, and certain nonconforming uses near the “property.” Southwest from the “property,” in South Holland, are old farm premises used as Binks Appliance or Harvey Automotive Parts. South of the “property” across 158th Street east of Cottage Grove Avenue, is an old residence used as a nursing home. At the southeast corner across from the “property” is an old farm home and south of it is a small park. To the north is an old farm home and an asparagus farm. West of Cottage Grove Avenue in South Holland and opposite the “property,” the land appears to be either vacant or developing as single family residences.

The zoning ordinance of Dolton, which classified the area as above described, was originally passed in 1950, and was amended by comprehensive amendments in 1955, 1959 and 1964. The ordinance in issue, was adopted unanimously by the President and Board of Trustees on January 26, 1965. This ordinance reclassified the "property” from R-2, Single-Family Residential, to R-5 for multiple-family residential use with certain specific restrictions hereinafter mentioned.

The general regulations of the Village of Dolton Zoning Ordinance state that there are certain minimal areas that may constitute separate or detached parts of a zoning district. For the R-5 Multiple-Family Dwelling District that minimal area is 2 acres. Others given in the ordinance are: R-6, Multiple-Family Dwelling District, 2 acres; B-l, Planned Business Center District, 5 acres; B-2, Business District, Limited Retail, 1 acre; B-3, Commercial District, General Retail, 4 acres; B-4, Business Services and Wholesale District, 4 acres; and M-l, Manufacturing District, Limited, 4 acres.

The general regulations of the ordinance have the following regulations as to Dwelling Districts: As to height, the regulation of 2% stories or 35 feet is the same for R-l, R-2, R-3, R-4, R-5 and R-6; as to front yards, the setback is 30 feet for R-l and 25 feet for R-2, R-3, R-4 and R-5, insofar as the ordinance is applicable to the present situation. However, in R-5 Dwelling District each 2 feet of height over 25 feet require an additional one foot of setback. The side yard regulations are quite similar in all the residential classifications. The minimum dwelling standards as to floor space are: R-l, 1,350 square feet for 1 story, and 1,650 square feet for 2 story; R-2, 1,200 square feet for 1 story, and 1,500 square feet for 2 story; R-3, 1,050 square feet for 1 story, and 1,350 square feet for 2 story; R-5 and R-6, 900 square feet per unit.

The requirements of the Dolton Zoning Ordinance as to intensity of uses are: R-l, 10,000 square feet of lot area; R-2, 6,000 square feet of lot area; R-3, 4,800 square feet of lot area; and R-5 for multiple units, 2,100 square feet of lot area per unit.

The ordinance amending the zoning ordinance contains certain fact findings which include the filing of an application for rezoning by the property owner which projects the filing of a building permit application for 128-apartment units, together with such parking facilities as may be approved by the Village; construction in accordance with a preliminary floor plan which had been presented to the Plan Commission and Village Board; commencement of construction within three months, and a proviso that if construction is not started within one year, the Village will apply for rezoning to one-family dwelling classification; and the filing of a bond with the Village for performance of all planning and construction requirements. The amending ordinance established an R-5 multiple-family classification for the “property” in question.

The reasons for the action of the Village of Dolton in reclassifying the “property” from R-2, Single-Family Residential, to R-5, Multiple-Family Residential, were testified to by Albert J. Ohlsen, who was Village President at the time the rezoning ordinance was passed. He had previously served on the Zone and Land Board of the Village, and as Building Commissioner of the Village. He was on the Planning Board when a comprehensive plan with reference to land use was developed in 1958. He testified that in the planning, projections were made in 1958 of the number of apartments the village should have, that the plan called for 300 units immediately, and an additional 900 units by 1970. He stated that the comprehensive zoning ordinance did not set aside the land for the 900-apartment units, but the matter was held in abeyance for such time as someone would request rezoning for apartments. He testified that at the present time there are 190 apartment units in Dolton, with 30 or 40 more under construction.

Mr. Ohlsen testified that the Village Board, in determining upon this rezoning, took into consideration the following factors: (1) that Cottage Grove Avenue, which adjoins the subject property to the west, is planned for development as a four-lane highway, and the County presently has such plans; (2) that in the area there are a considerable number of single-family lots which are vacant and which have not been developed; (3) the proximity of the area to the shopping center; (4) the requirements of the building code that all apartments be face brick buildings; (5) the strict setback requirements of the zoning ordinance; (6) the effect, if any, of the introduction of apartments on the value of the property in the area; (7) the fact that traffic inlets and outlets are subject to board approval, it being considered best to bring the traffic into Cottage Grove Avenue; (8) the fact that experience of ten years has shown that people do not want to put single-family dwellings on four-lane streets; (9) the fact that the apartments would be limited to 35 feet in height; and (10) the increased tax revenue to the town and school district.

Mr. Eugene Baughman, a city planning consultant with considerable educational and experiential background in city planning, and a member of the planning firm which prepared the comprehensive plan for the Village of Dolton in 1958, and a director of the project, testified to the same factors as those referred to by Albert J. Ohlsen. In so doing he referred to a pamphlet entitled “Economic Factors for Planning, Dolton, Illinois,” dated October, 1958, by Everett Kinkaid and Associates. In addition to the factors testified to by Mr. Ohlsen, Mr. Baughman testified that the highest and best use of the “property,” considering the interest of the developer and the community as a whole without adverse effect upon surrounding property, would be multiple-family use as designated in the R-5 classification of the Dolton Zoning Ordinance. He took note of certain obsolete structures in the area, and of the adjacent park which would be a play area for children. He felt that it would enhance the value of all land in the area because it would replace vacant land with a known use of high value, rather than continue the threat of an unknown, unpredictable use. In his opinion, the development of the seven and one-half-acre tract as a separate residential classification would not have the detrimental effect of spot zoning. He stated that when apartments are planned on a large acreage and developed as a self contained unit, his experience has been that there has been no adverse effect upon the surrounding area.

Earle McEldowney, a real estate appraiser, testified in detail as to his experience, and gave his reasons for an opinion that the proposed apartment development would not have any adverse effect upon the single-family residences across the street from the apartment development.

Harry Quinn, a real estate broker, architect and builder, testified that by reason of the high tax area, and traffic, the subject property could not be properly developed for single-family purposes.

Harry Blouin, a builder and developer, testified that the market for single-family homes in Dolton is very slow and further, that there is absolutely no market now, or in the perceivable future, for lots for single-family homes on the subject property.

Contrary opinions are in evidence. Carl Gardner, a city planning consultant, testified that from a social point of view the development of apartments on the subject property would be improper, but he had no opinion on the effect on values. He was not familiar with the particular apartment project planned, nor with the maximum building coverage requirements in the ordinance.

Russell G. Morache, a real estate appraiser, testified that the introduction of an apartment project in the area would cause a five percent depreciation in value of adjacent single-family homes, but his statements of actual values did not show a depreciation from prices paid. More significantly, he was not familiar with the particular apartment project proposed. He also testified that the presence of a professional office in a residential neighborhood would not have any effect on the value of surrounding property.

John M. Vanderaa, a real estate broker and appraiser, testified that the introduction of an apartment project into the area would have a detrimental effect on the surrounding property which he estimated at eight percent. He was not familiar with the height requirements for apartments under the Dolton ordinance.

As to value of the subject property, it appears that the present owner’s investment is approximately $50,000, which is also the value of the property for single-family residence, while the value for apartment use would be approximately $128,000. It also appears that the project, if fully developed, would have a value of approximately $2,000,000, and an assessed value for tax purposes of approximately $1,000,000.

Several of the plaintiffs whose properties are across the street from the subject property testified that they would not have bought property across from an apartment property.

We believe that this case is clearly controlled by the principle set forth in Krom v. City of Elmhurst, 8 Ill2d 104, 133 NE2d 1, on 107:

“Since there is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant, the one assailing its validity has the burden of proof that the ordinance is invalid or unreasonable and confiscatory as to his property. If it appears from all the facts that there is room for a difference of opinion concerning the reasonableness of a classification, the legislative judgment of the City Council must be conclusive. For further exposition of these established principles see LaSalle National Bank v. City of Chicago, 5 Ill2nd 344; Tower Cabana Club, Inc. v. City of Chicago, 5 Ill2nd 11; LaSalle National Bank v. City of Chicago, 4 Ill2nd 253; Herzog Building Corporation v. City of Des Plaines, 3 Ill2nd 206; Miller Brothers Lumber Co. v. City of Chicago, 414 Ill 162.” (Emphasis supplied.)

The principle is further elaborated in Exchange Nat. Bank v. Cook County, 25 Ill2d 434, 185 NE2d 250, on 439:

“It is always presumed, in an attack upon an ordinance, that the enactment is valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (Jacobson v. City of Evanston, 10 Ill2nd 61.) Before a court will intervene it must be established by clear and convincing evidence that the ordinance, as applied to plaintiffs, is arbitrary and unreasonable and has no substantial relation to the public health, safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without reasonable justification in relation to the public welfare. (People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill 321; Morgan v. City of Chicago, 370 Ill 347). Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. (Krom v. City of Elmhurst, 8 Ill2nd 104.) In LaSalle Nat. Bank of Chicago v. Cook County, 12 Ill2nd 40, we reviewed the considerations determining the validity of an ordinance as applied to a particular property and stated that ‘among the facts which may be taken into consideration in determining the validity of an ordinance are the following: (1) The existing uses and zoning of nearby property (citing cases), (2) the extent to which property values are diminished by the particular zoning restrictions (citing cases), (3) the extent to which the destruction of property values of the plaintiff promotes the health, safety, morals or general welfare of the public (citing cases), (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner (citing cases), (5) the suitability of the subject property for the zoned purposes (citing cases), and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. (Citing cases.)’ ” (Emphasis supplied.)

Here it is debatable whether the ordinance would have any adverse effect upon plaintiff’s property values. The change in zones between R-2 and R-5 is, in fact, a moderate change within a residential classification, and the property of most plaintiffs is classified as R-3. The property remained vacant a number of years in its present classification. The size of the area changed is several times the minimum provided for separate classification. There is substantial evidence that the subject property will not develop at all in its present classification.

The change involved in this situation is so clearly within the range of legislative discretion that a court would have no authority to interfere whether the legislative body granted or denied the change here involved.

The judgment of the Circuit Court of Cook County is reversed.

Reversed.

CRAVEN, P. J. and SMITH, J., concur.


author: MR. JUSTICE MORAN

text:
    Emmett M. Mount, Helen Mount, His Wife, Donna Mount, a Minor, by Helen Mount, Her Mother and Next Friend, and Pamela Mount, a Minor, by Helen Mount, Her Mother and Next Friend, Plaintiffs-Appellees, v. Donald W. McClellan, Wayne Hoffman, and Betty Hoffman, His Wife, Defendants-Appellants.
    Gen. No. 67-39.
    Second District.
    March 8, 1968.

      Treacy and Clifford, of Chicago, for appellants.
    Churchill & Baumgartner, of Grayslake, and Fuqua, Fuqua & Winter, of Waukegan, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On Christmas Day in 1964, the plaintiff was allegedly injured when his car was struck by the car of the defendant at Route 83 in Lake County. Plaintiff was taken to a nearby hospital, treated as an outpatient and returned home the same day. The plaintiff suffered bruises and headaches as a result of the accident. Prior to the accident he had difficulty with headaches and dizziness and, on one prior occasion, went to the hospital on this account. All medical findings were normal and his family doctor testified that no concussion was apparent. During the course of the trial, the plaintiff was asked, on cross-examination, whether or not his car was equipped with seat belts. An objection to this question was overruled and the plaintiff answered that his car was not equipped with seat belts.

The jury rendered a finding in favor of the plaintiff in the amount of $1,000. Plaintiff thereupon made a motion for a new trial, alleging inadequacy of damage and that the trial court had erred in permitting the plaintiff to be interrogated regarding the seat belts. The trial court granted the motion for a new trial on both grounds and the defendant filed his petition in this court for leave to appeal from the order of the trial court granting the new trial, which was allowed.

Considering first the question of the seat belts, while today there is a statutory requirement that automobiles be so equipped, at the time of this accident there was no such requirement. The plaintiff argues that in order for there to be negligence there must be a duty. He continues, that if there is no duty then there can be no breach and consequently, no negligence. On the other hand, the defendant argues that, even though there was no statutory duty to have seat belts at the time of the accident, there was the common-law duty to use due care for one’s own safety and whether or not seat belts were installed in the car is an evidentiary factor which the jury could properly consider in determining the question of the plaintiff’s due care for himself.

There appears to be no Illinois case on this subject. We have examined other jurisdictions and find that in the States of Wisconsin, South Carolina and Indiana such evidence is admissible as a factor in determining the common-law duty of care. See Bentzler v. Braun, 34 Wis 2d 362, 149 NW2d 626, 639 et seq. (1967); Sams v. Sams, 247 SC 467, 148 SE2d 154, 155 (1966) and Kavanagh v. Butorac (Ind App), 221 NE2d 824 (1966). On the other hand it appears that in Delaware and Florida such evidence is held to be inadmissible. See, Lipscomb v. Diamiani (Del), 226 A2d 914, 918 (1967) and Brown v. Kendrick (Fla), 192 So2d 49, 51 (1966).

It seems to us that the better reasoning favors the admissibility of the evidence. As was said in the Bentzler case at page 639:

“. . . (T) here is a duty, based on the common-law standard of ordinary care, to use available seat belts independent of any statutory mandate.”

and at page 640, court went on to say:

“. . . (I)t is obvious that, on the average, persons using seat belts are less likely to sustain injury and, if injured, the injuries are likely to be less serious. On the basis of this experience, and as a matter of common knowledge, an occupant of an automobile either knows or should know of the additional safety factor produced by the use of seat belts. A person riding in a vehicle driven by another is under the duty of exercising such care as an ordinarily prudent person would exercise under similar circumstances to avoid injury to himself.”

The use, or nonuse of seat belts, and expert testimony, if any, in relation thereto, is a circumstance which the trier of facts may consider, together with all other facts in evidence, in arriving at its conclusion as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However, this element should be limited to the damage issue of the case and should not be considered by the trier of facts in determining the liability issue. Whether a person has or has not availed himself of the use of seat belts would have no relevancy in determining the cause of an accident.

It is to be noted that we do not consider the weight to be given such evidence, but merely that it is admissible on the question of the plaintiff’s due care to avoid injury. The jury may give great or small weight to it, but in our judgment they are entitled to consider the matter. The trial judge was correct in his original analysis and should not have granted a new trial on this ground.

We now come to the adequacy of the damage. The plaintiff alleges that he has suffered special damages of $2,440.65. If these are all attributable to this injury, then the jury verdict of $1,000 is inadequate, Kinsell v. Hawthorne, 27 Ill App2d 314, 319, 169 NE2d 678 (1960).

Unfortunately, it is not at all clear that the plaintiff’s damages resulted from this accident. The plaintiff’s own doctors testified that all medical findings were normal and the plaintiff himself testified to a prior medical history which showed the same symptoms he claimed in this case. A large part of his expenditures could not be attributable to the accident, for example, the bill from his family doctor covered various complaints which could not be distinguished from the present complaints, and all of his bills for medical prescriptions were likewise indistinguishable. Plaintiff claimed lost wages from his normal job as a tile setter and yet, during this time, he was able to lay the tile in his own basement. The court does not have the right to reweigh the evidence which the jury considered. It cannot put itself in the jury’s place. It can only intervene if the jury’s verdict is palpably inadequate or against the manifest weight of the evidence, Stroyeck v. A. E. Staley Mfg. Co., 26 Ill App2d 76, 86, 167 NE2d 689 (1960) citing ILP, Damages, § 162.

We are mindful of the rule that the granting of a new trial by the trial court is a matter of discretion and that its decision will not be reversed unless there is shown to be an abuse, Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 181, 212 NE2d 106 (1965). However, our examination of the entire record indicates to us that the trial court did abuse its discretion and that the jury verdict was not against the manifest weight of the evidence or palpably inadequate.

Therefore, the cause is reversed and remanded to the trial court with instructions to deny the motion for a new trial.

Reversed and remanded with instructions.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Cleo Bud Garner, Defendant-Appellant.
    Gen. No. 67-134.
    Second District.
    February 9, 1968.

      Vern L. Davitt, of Rockford, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

In this appeal, the defendant-appellant filed an abstract of record which included neither the indictment, the judgment appealed from, nor the post-trial motions filed in the case.

Where the abstract fails to show the indictment or the rendition of any judgment, the appeal may be dismissed. The court will not examine the record to reverse the judgment where an insufficient abstract is filed. The rationale of this rule is that the abstract is the pleading of the appellant by which the cause of action established in the transcript of record is presented for review, and it must be sufficient to apprise -the court of the errors relied upon for reversal, without the examination of the record itself. People v. Parker, 345 Ill 181, 182, 177 NE 727 (1931). Also see: Harris v. Annunzio, 411 Ill 124,126,103 NE2d 477 (1952); People v. Nelson, 398 Ill 623, 626, 76 NE2d 441 (1948); People v. Bolds, 398 Ill 626, 628, 76 NE2d 456 (1948); People v. Hill, 388 Ill 247, 248, 57 NE2d 859 (1944). A further and pragmatic reason for this rule is that reviewing courts are multiple judge courts and only one transcript of the record is filed.

There exists a tendency on the part of appellants, in both criminal and civil cases, to flagrantly disregard Supreme Court Rule 342(e) (Ill Rev Stats 1967, c 110A, par 342(e)) — a derivation, in part, from former Supreme Court Rule 38 (Ill Rev Stats 1965, c 110, par 101.38)— which outlines the requisites of an abstract of record. We hereby call this dereliction to the attention of counsel and litigants and, without establishing a precedent for future observance, we will consider this case on its merits.

The defendant was indicted in April of 1963 on charges of armed robbery and robbery, in that, on March 26, 1963, he, by use of force or threat of use of force while armed with a gun, took certain money from Leonard Barber, at and within Winnebago County. He entered a plea of not guilty and counsel was appointed to represent him. Two eyewitnesses of the armed robbery — Barber, the owner and operator of a grocery store which was robbed, and Virginia Sullivan, a store clerk (whose testimony was not abstracted by the defendant) — each separately identified the defendant as the robber at a police lineup and at the trial.

The defense to the prosecution was alibi. Two witnesses —who admitted prior convictions of infamous crimes— testified for the defendant and stated that they were playing cards with him at an address on South Winnebago Street at the time of the robbery. These witnesses also said that two persons, other than the defendant, were playing cards with them at the time. The other persons were not called as witnesses.

The jury found the defendant guilty on both the charge of armed robbery and robbery. The court entered judgment on this verdict and sentenced the defendant to a term of not less than 5 nor more than 15 years in the State Penitentiary. It is from this judgment that the defendant has appealed.

The defendant has urged that the trial court erred in certain evidentiary rulings and in instructing the jury. He contends that the trial court erred in admitting the testimony of a police officer who testified on behalf of the People that while parked near the intersection of Winnebago and State Streets, he saw a blue car which answered the description of a car used in a holdup; and that Cleo Bud Garner and Harold Dwayne Smith got out of this car after it parked in the Chestnut Street parking lot.

At the trial, counsel for the defendant offered only a general objection to the testimony of the police officer and the reason — if any, he had for such objection —remained undisclosed. In fairness, the trial judge is entitled to be informed of the basis of the objection before he can be charged with error in his ruling on review. Before us, the defendant now contends that this evidence was hearsay and, therefore, inadmissible.

In People v. Trefonas, 9 Ill2d 92, 136 NE2d 817 (1956), at page 98, the court stated:

“The function of an objection is, first to signify there is an issue of law, and, secondly, to give notice of the terms of the issue. . . . Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained of. ... A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.”

Generally, objections to the admission of evidence must be specific enough to inform the court and the opponent of the ground or reason for the objection. A general objection to evidence, if overruled, cannot avail the objector on appeal. People v. Jennings, 298 Ill 286, 288, 289, 131 NE 619 (1921); O’Donnell v. People, 224 Ill 218, 223, 224, 79 NE 639 (1906); Wigmore on Evidence (Third Edition) Yol I, § 18, pp 332-336, inclusive. Thus, it is our conclusion that the defendant’s general objection to the above question was not adequate to preserve any issue for this court to review. It did not affect any substantial right of the defendant or deprive him of a fair and impartial trial. Thus, we deem this an appropriate occasion to invoke the specific objection rule above set forth.

While section 121-9 (a) of the Criminal Code was repealed September 9, 1967, its identical language now appears in Supreme Court Rule 615(a). (Ill Rev Stats 1967, c 110A, par 615(a).) Consequently, the question of the consideration to be given by the reviewing court with reference to substantial and insubstantial errors lingers on.

The People called Virginia Sullivan as a witness, and at the conclusion of her cross-examination counsel for the defendant said: “Now before testifying today, have you talked to anybody about this case?” She replied: “Naturally, it’s something you talk about.” The defendant’s counsel then commented: “No further question.” Thereupon, the court asked the following questions of the witness:

“THE COURT: Who did you talk to, the police and the State’s Attorney?
“THE WITNESS: Yes.
“THE COURT: Did you talk to anybody else?
“THE WITNESS: No, not today.
“THE COURT: At any time from the time of the holdup until this time, did anybody call you or did you talk to anybody else?
“THE WITNESS: Oh, this--on June 12th, there were a couple in the store.
“THE COURT: Did they identify themselves ?
“THE WITNESS: One said he was Bobbie Garner, his nephew, and the other—
“MR. PENNIMAN: (Interposing) I am going to object to this.
“THE COURT: You asked it, and I’m going to open it up and find out.
“THE WITNESS: The one came was Evelyn Moriarity. She didn’t tell her name. But she had been in the Labor News, and made a fuss about her picture being in the Labor News.
“MR. PENNIMAN: I object to this.
“THE COURT: You asked her if anybody talked to her. I want to know what they said.
“THE WITNESS: They wanted to be sure of my identity. They said he said he’s heard his uncle had held us up, and he claimed to be Bobbie Garner. And he said he just wanted to be sure, a mistake could be made.
“And the girl said, T guess you know if this man is found not guilty, he’ll be running this place.’ And we turned in a statement to that effect.
“MR. PENNIMAN: I object to that, your Honor.
“THE COURT: You opened it up, who they talked to. You know, they can talk to both sides.”

Again, we note that the defendant’s objection was general and without any specification whatsoever. However, we will take notice of the reply of Evelyn Moriarity, as repeated by the witness, and the remarks of the witness concerning Moriarity’s picture being in the Labor News, even though the objection did not preserve the question for review, since such alleged error lies in the general area which might affect the defendant’s substantial rights and tend to deprive him of a fair and impartial trial.

Defense counsel’s purpose, on cross-examination, in asking Virginia Sullivan whether she had talked with anyone before testifying and in not pursuing the line of questioning when the question was answered affirmatively, was obviously to create an inference that she had talked with the State’s Attorney, or the police, concerning the case.

“Where a conversation is brought out on cross-examination, the prosecutor has a right on redirect examination to question the witness as to such conversation and a defendant cannot complain that on redirect examination the entire conversation was brought out.” People v. Kostos, 21 Ill2d 496, 500, 173 NE2d 466 (1961). Also see: People v. Kalpak, 10 Ill2d 411, 423, 424, 140 NE2d 726 (1957); People v. Munday, 280 Ill 32, 58, 59, 117 NE 286 (1917).

We believe that the State’s Attorney could properly have interrogated the witness on redirect examination with reference to whom she had talked to, but that the redirect examination was limited to this question and could not be expanded in scope to include what was said at such conversations. Generally, both cross and redirect examination are limited to the scope of the preceding examination. People v. Berardi, 332 Ill 295, 299, 163 NE 668 (1928); People ex rel. Chaney v. Preston, 188 Ill App 93 (1914). However, the scope of such further examination is largely within the discretion of the trial court. City of Springfield v. Dalby, 139 Ill 34, 38, 29 NE 860 (1891).

These conclusions lead to the question of the propriety of the trial judge in interrogating the witness and whether his questions and comment constituted an abuse of his discretion.

In People v. Marino, 414 Ill 445, 111 NE2d 534 (1953), at page 450, the court stated:

“While the court has a wide discretion in the conduct of a trial, it must not invade the province of the jury by making comments, insinuations or suggestions indicative of belief or disbelief in the integrity or credibility of a witness. (Citations.) . . . While it is true that a judge has a right to question witnesses or call other witnesses to the stand in order to elicit the truth or to bring enlightenment on material issues which seem obscure, he must do it in a fair and impartial manner, without showing bias or prejudice against either party.”

Also see: People v. Sprinkle, 27 Ill2d 398, 402, 403, 189 NE2d 295 (1963).

We find nothing unfair or partial in the manner in which the questions were presented by the court. However, the court abused its discretion in interrogating the witness relative to the substance of her conversation with Bobbie Garner and Evelyn Moriarity. Such interrogation exceeded the scope of the preceding cross-examination. Also, the court’s final remark, “You opened it up, who they talked to. You know, they can talk to both sides,” was inadvertent and bordered on impropriety. However, we do not regard this abuse of discretion to be of such consequence as to constitute reversible error.

The defendant also contends that the trial court erred in giving People’s instructions 14, 15, 16 and 17 in that such instructions were repetitious. In People’s instructions 14 and 15, the court defined the offense of robbery and armed robbery in the language of sections 18-1 and 18-2 of the Criminal Code (Ill Rev Stats 1967, c 38, pars 18-1 and 18-2). Such instructions were not misleading in this case, and the court did not err in giving them. People v. Hines, 30 Ill2d 152, 155, 156, 195 NE2d 712 (1964); People v. Galloway, 28 Ill2d 355, 363, 192 NE2d 370 (1963); People v. Lyons, 4 Ill2d 396, 400, 401, 122 NE2d 809 (1954).

In People’s instructions 16 and 17, the court instructed the jury in the language of Counts I and II of the indictment with reference to the various elements which the People must prove beyond a reasonable doubt in order to sustain a verdict of guilty against the defendant with reference to such offenses.

When People’s instructions 14, 15, 16 and 17 are considered as a series, they properly define the offenses charged, and set forth the elements which the People must prove beyond a reasonable doubt in order to sustain a conviction of the defendant under Counts I and II of the indictment. We do not find them repetitious to the extent that the action of the trial court in giving such instructions constituted reversible error. People v. Welch, 22 Ill2d 558, 561,177 NE2d 160 (1961).

Defendant’s instruction 11, which the court refused to give, provided:

“The Court instructs the jury that the defense of alibi in this case need not be proven to the satisfaction of the jury and beyond a reasonable doubt, but it is sufficient if the evidence tending to prove an alibi raises in your mind a reasonable doubt as to the whereabouts of the Defendant in this case at the time and place in question. If you have a reasonable doubt as to where the Defendants, or either of them, were at the time as charged in the Indictment, it is your duty as jurors to return a verdict of not guilty.”

However, the court gave defendant’s instruction 10, which provided:

“The Court instructs the jury that when a person charged with a crime proves that he was elsewhere at the time of the commission of the crime, he is said to prove an alibi. Proof of an alibi need be sufficient only to raise in the minds of the jury a reasonable doubt as to the guilt of the Defendant such doubt arising from the fact that the evidence tends to show the improbability of the presence of the Defendant at the commission of the crime.”

Both instructions pertained to the defense of alibi. Instruction 10 was articulate and properly instructed the jury on this issue. Instruction 11 was ambiguous in that it erroneously assumed the presence of two defendants in this case. In view of the adequacy of instruction 10, and the ambiguity and inarticulateness of instruction 11, we find no error in the trial court’s refusal to give instruction 11.

Thus, we find no reversible error in the giving or refusing of instructions, or in the court’s evidentiary rulings. To justify a reversal of the verdict of a jury which has heard all of the evidence, the error relied on must either deny the defendant his substantial rights or materially prejudice the case before the jury. People v. Maurantonio, 8 Ill2d 60, 66, 132 NE2d 515 (1956). Such is not the case here.

Notwithstanding the errors noted, we believe that the jury reached a proper verdict and that the defendant had a fair trial. We cannot say that the result would have been different without the trial irregularities. When the errors complained of could not reasonably have affected the verdict, the judgment should be affirmed. The question is not whether the record is perfect, but whether the defendant has had a fair trial and whether his conviction is based on evidence establishing his guilt beyond a reasonable doubt. People v. Sleezer, 9 Ill2d 57, 62, 136 NE2d 808 (1956); People v. Smith, 63 Ill App2d 369, 384, 211 NE2d 456 (1965). The jurors determined that the evidence established defendant’s guilt beyond a reasonable doubt and we find no basis for disturbing their finding. People v. Solomon, 24 Ill2d 586, 591, 182 NE2d 736 (1962). Accordingly, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: MR. JUSTICE SEIDEL

text:
    Frederick Clements, Plaintiff-Appellant, v. The Schless Construction Company, Inc., a Corporation, Defendant-Appellee, Third-Party Plaintiff, v. John F. Hirsch, d/b/a John H. Mosack Company, Third-Party Defendant.
    Gen. No. 67-61.
    Second District.
    December 28, 1967.
    Rehearing denied and supplemental opinion March 12, 1968.

      James A. Dooley, of Chicago, for appellant.
    Peregrine, Stime & Henninger, of Wheaton, for appellee.
   MR. JUSTICE SEIDEL

delivered the opinion of the court.

The plaintiff, Frederick Clements, brought this action under the Structural Work Act (Ill Rev Stats 1959, c 48, § 60 et seq.) against The Schless Construction Company, Inc., a corporation, herein referred to as defendant, to recover damages for personal injuries suffered from a fall while painting the exterior window sashes of a school building in Westmont. There was a trial before a jury in the matter of the claim of the plaintiff against the defendant, and the jury returned a verdict in favor of the defendant. The court subsequently overruled the plaintiff’s post-trial motions and the plaintiff prosecuted an appeal to this court.

The defendant, a general contractor, had an agreement with the School District, whereby it was to provide material and perform services for the work in making certain alterations and repairs to the school building. John F. Hirsch, the third-party defendant, herein referred to as Hirsch, was a subcontractor of Schless doing the painting work. The plaintiff was in the employ of Hirsch as a painter. On the afternoon in question the plaintiff was seen working while standing on a plank scaffold supported by two (2) ladders behind the outside of the school where he was painting. The two (2) ladders had been placed against the building resting at an angle. Each of the two (2) ladders had attached to it a ladder jack. The plank scaffold was supported by the two (2) ladder jacks. Immediately after the occurrence the ladder jack which had been attached to the ladder to the north, as well as the plank, was found on the asphalt surface below and adjacent to the school building. The plaintiff was also found on the asphalt pavement. The ladder jack was immediately below the north ladder. The plaintiff suffered severe personal injuries.

In his complaint the plaintiff charged the defendant, as the general contractor on the job, with violating the Structural Work Act, supra, and not providing ample and safe equipment upon which to work. It was charged that the acts of the defendant were in violation of Safety Rules promulgated with the Illinois Industrial Commission pursuant to the Health and Safety Act (Ill Rev Stats 1959, c 48, § 137.1 et seq.)

Thereafter the defendant filed a third-party complaint against Hirsch and then made a motion for a separate trial. This motion was denied by the trial court. When the case was called for trial thereafter, the defendant and Hirsch joined in a motion for severance and presented to the plaintiff a certain stipulation. The plaintiff did not enter into this stipulation. Under the terms of the stipulation it was provided that there would be a severance, and

a. The court would instruct the jury concerning the names of the parties and the names of their attorneys, as well as the fact that Hirsch had an interest adverse to the plaintiff;
b. The jury would be selected as in the case of litigation involving multiple defendants;
c. All parties would be permitted to examine the witnesses and Hirsch, if he desired, could supplement evidence offered in defense of the principal action;
d. The jury would be instructed as to the issues in the original case and Hirsch could offer supplemental instructions on behalf of the defendant;
e. The jury would retire and return a verdict upon the principal case only.

The trial court accepted the stipulation and informed the jury that in the course of the evidence reference would be made to Hirsch, and that under the law, Hirsch had a legal interest in the law adverse to the interest of the plaintiff and that he was entitled to be represented at the trial, and that he was represented by an attorney at the trial.

The record shows that counsel for Hirsch participated in the selection of the jury, the examination of witnesses, objected to evidence offered by the plaintiff, participated in conferences on instructions, as well as objected to plaintiff’s argument.

Below, and in this court, the plaintiff contends that the trial court did not have jurisdiction to enter an order pursuant to the stipulation and did not have the right to allow counsel for Hirsch to participate in the trial of the case after the order of severance.

Paragraphs 44(2) and 51 of the Civil Practice Act (Ill Rev Stats 1965, c 110, §§ 44, 51) provide for the consolidation or severance of cases and the mechanics that are to be followed therein. Apparently under these sections there must be either an order of severance or an order of consolidation or an order denying severance. These sections do not provide for further measures. In the case at bar we have a trial of one case in which we have a party plaintiff and a party defendant, and we have participating therein, with the approval of the court, a third party who was not a party to the case being tried. That third party was a stranger and should not have been permitted to participate in the trial. Sjoberg v. Joseph T. Ryerson & Son, Inc., 8 Ill App2d 414, 417, 418, 132 NE2d 56 (1956).

There must be an intrinsic fairness of procedure by which any judgment, order or decree is rendered, and where the procedure followed by the court is so lacking in a principle or principles basic to the existing system of justice that it offends such system of justice, such procedure must be condemned as a denial of due process. City of Chicago v. Cohn, 326 Ill 372, 374, 375, 158 NE 118 (1927); Pettigrew v. National Accounts System, Inc., 67 Ill App2d 344, 350, 351, 213 NE2d 778 (1966).

Under the circumstances it appears that the plaintiff was not afforded the fair and impartial trial that is provided for by constitutional mandates, and one not consistent with the accepted principles of our courts under a fair judicial system. The case should therefore be reversed and remanded to the trial court.

There are other questions concerning instructions and the admissibility of evidence which have been raised on this appeal, but since the case is reversed and remanded to the trial court for retrial, it is not necessary that this court pass upon these latter questions.

Reversed and remanded for new trial.

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

Supplement Opinion on Denial of Petition for Rehearing.

The defendant-appellee filed a petition for rehearing wherein it sought a reconsideration of the court’s decision in that: the limited participation by the attorney for the third-party defendant in the original action is no different from the participation by the intervenor; the decision unduly restricts the broad discretion necessarily vested in the trial court by the Civil Practice Act; no substantial prejudice to plaintiff was demonstrated and no question of due process was involved; and the trial judge did not sever the causes of action but only postponed the issues involved in the third-party action until after the determination of the principal action.

After due consideration of the petition for rehearing, we still adhere to the original opinion in respect to the issue therein decided. However, the plaintiff-appellant has urged us to modify the opinion by passing upon the other questions raised in the appeal which were not determined, and which remain inherent in the case. Upon reflection, we believe that the other substantial errors charged by the appellant should be considered in order to preclude a repetition of such errors upon retrial.

The court gave defendant’s instruction number 8 which required the plaintiff to prove, among other things, “that the defendant was in charge of the work being performed by John F. Hirsch, doing business as John H. Mosack Company.” Section 9 of the Structural Work Act (Ill Rev Stats 1965, c 48, par 69) provides in part:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building . . . shall comply with all the terms thereof. . . . (Emphasis ours.)

This language has been construed to provide that more than one person or business entity may be in charge of a construction job from which an injury may occur as a result of the violation of the Act. See: Larson v. Commonwealth Edison Co., 33 Ill2d 316, 321, 322, 211 NE2d 247 (1965); Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 317-320 inch, 175 NE2d 785 (1961).

In Crotty v. High-Low Foods, Inc., 78 Ill App2d 237, 223 NE2d 442 (1966), at page 240, the court stated:

“It is now clear in Illinois that under the Scaffold Act more than one person or firm may be in charge of a construction job from which an injury may occur as a result of a violation of the Act. Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE 2d 785. It is established in the instant case that the employees of Heinz constructed and used the scaffold in question, but the resulting argument that only the persons who actually erect and use the scaffold for work to be performed by them are the only persons who have charge of the work, was rejected in principle in Gannon and specifically in Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247.”

In the light of this construction of the Act, the giving of defendant’s instruction number 8 was clearly erroneous.

Likewise, we believe that the trial court erred in allowing the defendant to introduce in evidence part of plaintiff’s depositions as admissions against interest. At all times the plaintiff, who had suffered a brain injury, was present and available to testify. In his original deposition he had no recollection of the occurrence. In his second deposition, after a second fall which fractured his right hip, he stated that he then recalled fragmentary-parts of the accident. Under these circumstances, the defendant’s counsel should have questioned the plaintiff, upon either direct or cross-examination, concerning any prior statements, contradictory or otherwise, which it believed were admissions by him against interest, or which it believed were contradictory to his testimony given at his depositions, and, therefore, subject to impeachment. See: Haskell v. Siegmund, 28 Ill App2d 1, 11, 170 NE2d 393 (1960); Supreme Court Rule 19-10 (2) as superseded by Supreme Court Rule 212(a) (Ill Rev Stats 1967, c 110A, par 212(a)). A right sense of fairness requires such procedure, which in turn would afford plaintiff’s counsel an opportunity for further proper examination in the area under consideration in accordance with the recognized rules of evidence. People v. Garner, 91 Ill App2d 7, 234 NE2d 39 (1968).

At the trial the court, over plaintiff’s objection, permitted the witness, Voight, to testify relative to certain customs and practices in Du Page County with reference to the method of erecting scaffolding and ladders. The Structural Work Act, as well as the Health and Safety Rules of the Industrial Commission, control such matters, and the customs and usages of Du Page County are immaterial. Consequently, on retrial, such testimony should not be admitted in evidence.

Certain other minor evidentiary rules were complained of by the plaintiff which we will not comment upon inasmuch as we do not contemplate that they will again arise upon the retrial of the case.

Consequently, the original opinion is confirmed, and the supplementary matters here determined are added for the guidance of the attorneys and trial judge upon retrial.

Reversed and remanded for new trial with directions.

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


text:
    In the Matter of the Annexation of Certain Territory to the Village of Oak Brook, DuPage County, Illinois.
    Gen. No. 67-74.
    Second District.
    March 14, 1968.

      Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, Jack M. Siegel, and Arthur C. Thorpe, of Chicago, and Louis R. Main, of Hinsdale, for appellant.
    Rathje, Woodward and Dyer, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This proceeding involves the validity of annexation of certain territory to the Village of Oak Brook in DuPage County. Three identical petitions were circulated for signature, each contained the affidavit required by section 7-1-4 of the annexation statute (Ill Rev Stats 1965, c 24, § 7-1-4) and when filed the three petitions were attached as one. The petition was left in the office of the clerk of the Circuit Court on October 28, 1966, and a file stamp was placed upon it at that time. However, the filing fee was not paid until November 18, 1966. On November 22, 1966, the Trial Judge set the petition for hearing on December 12,1966, and subsequently objections were filed by the Village of Hinsdale and certain individual property owners.

After extensive hearings the trial judge denied all of the objections and found that the petition conformed to the statute. The objectors have brought this appeal raising four issues as follows: 1) That there was a prior pending petition to annex part of the territory to another municipality, and, therefore, the court had no jurisdiction to proceed; 2) The instant petition was defective in that it consisted of three separate petitions, none of which conformed with the statute; 3) The date set for hearing did not comply with statutory requirements because the instant petition was filed on October 28, 1966; 4) The notice of the hearing on the instant petition was not published in the correct newspaper.

The first objection is based upon the fact that on May 2, 1966, or more than six months before the commencement of these proceedings, a petition was filed seeking annexation of a portion of the subject territory to the Village of Hinsdale. Among the statements in that petition was the following: “That your petitioners are desirous of annexing said territory to the Village of Hinsdale provided that an agreement can be entered into by the parties under the provisions of Chapter 24, Section Ills.1-1, providing for an F Planned Development category.” No action was taken on the Hinsdale petition until January 9, 1967, when the Zoning Board and Village Board of that Village denied the request for zoning. It will be seen that the petition for annexation to Hinsdale was conditioned upon the zoning and presumably upon the failure of the condition, the request for annexation was extinguished. Therefore, in connection with the first objection before us we conclude that the trial judge was correct.

As to the second objection, it appears that the petitioners in this case followed the common practice of circulating a number of original petitions amongst various different owners of the property in question. A separate affidavit was attached to each petition and then the petitions were put together to make one whole petition. Counsel for the objectors has not directed our attention to any statutory requirement that each petitioner sign the same petition, nor does there appear to be any statutory bar to the procedure followed in this case. The practice followed is common and it is difficult to see how any of the objectors have been prejudiced.

The objectors merely direct our attention to the general rule that annexation proceedings are statutory and that the statute must be strictly followed. There can be no quarrel with that proposition. On the other hand, however, counsel has the burden of pointing out to us wherein the statute was not followed in this regard. The Supreme Court had similar questions before it on past occasions and in each case has ruled that the common practice of circulating more than one similar petition is valid. In the case of People v. Summy, 377 Ill 255, 36 NE 2d 331 (1941), the court said at page 258:

“The practice followed by the petitioners, of circulating identical petitions, binding them into one document, and filing them as a single petition with a total of the required number of signatures or more, has been approved by this Court and is no longer a subject for dispute.”

In People v. Knapp, 28 Ill2d 239, 190 NE2d 774 (1963), the court said at page 242:

“There is no objection to the practice of circulating identical petitions, binding them into one document, and filing them as a single petition with a total of the required number of signatures or more.”

The trial judge found that the petition complied with the statute and we have no reason to disagree with his findings. The statute provides that the affidavits attached to a petition for annexation are prima facie proof of the facts stated. All of the cases cited to us by the objectors involve proceedings in which the objectors submitted proof regarding the allegations of the affidavit. In this case the objectors submitted no proof, therefore the affidavit stands as the statute provides.

In connection with the third objection, section 7-1-2 of the annexation statute (Ill Rev Stats 1965, c 24, § 7-1-2) provides that the trial judge shall fix a date for the hearing upon the petition not less than 20 nor more than 30 days after its filing. The same section further provides “The petitioners or corporate authorities, as the case may be, shall pay to the clerk of the circuit court $10.00 as a filing and service fee, and no petition or ordinance, as the case may be, shall be filed until this fee is paid.” The petition was filed on October 28, 1966, but the fee was not paid until November 18, 1966. The trial judge concluded that the petition was not filed from a legal standpoint until the day upon which the fee was paid and, therefore, set the date for hearing within the statutory time following the payment of the fee. The statute clearly provides that the petition cannot be actually filed until the fee is paid and we believe that the trial judge was correct in setting the hearing date with reference to the payment of the fee and not the date upon which the petition was left with the clerk of the court. We cannot conceive that the objectors have been prejudiced in this regard. In fact, it appears that they had more time to prepare their objections than the law provided, had the fee been paid on the first day. They received notice and appeared at the hearing.

The cases cited to us by the objectors are not annexation cases and we note that the annexation statute itself provides that the payment of the fee initiates the proceedings. Our comments in a recent case perhaps best sums up this matter. We said In re Petition To Annex Certain Territory to Village of Mettawa, 33 Ill App2d 38, 178 NE2d 895 (1961) at page 47:

“The objector has failed to point out wherein these alleged errors in procedure, if made, would in any way change the end result in the court’s order that the petition was valid and complied in all respects to the provisions of Article VII of the Cities and Villages Act.”

The last objection before us involves the requirement of section 7-1-2 of the annexation statute, supra, that notice of the hearing must be published in a newspaper published in the annexing municipality or, if there is none, then in a newspaper with a general circulation within the annexing municipality and the territory in question. The only evidence on this point came from the petitioners, who submitted a publisher’s certificate stating under oath that the paper “Suburban Life,” in which the notice was published, was a newspaper of general circulation within the Village of Oak Brook and a newspaper as defined by our statute. (Ill Rev Stats 1965, c 100, § 5.) We draw an inference from the briefs that the objectors presented some evidence to the trial court on this question, but that portion of the record has not been presented to us. This was not due to any fault on the part of the litigants herein. The record discloses that the court reporter mislaid or lost her shorthand book which contained the notes taken by her at a hearing held on December 27, 1966. Nevertheless, by Supreme Court rule, it is allowable, where there is no verbatim transcript available, to file a proposed report of proceedings from the best available source, including recollection. (See Supreme Court Rule 323(c).) Because of the leniency and simplicity provided under the new rules, we have not abandoned the requirement that the appellant must give us all of the evidence pertinent to the issues raised by him. If he does not do so we are unable to properly consider an objection and must presume that the trial judge was correct in his ruling. As was said in the case of McCann v. Lurie, 15 Ill App2d 297, 146 NE2d 223 (1957) at page 300:

“Where the record is incomplete, a reviewing court will indulge every reasonable presumption in favor of the judgment or order. Any doubt arising from the incompleteness of the record will be resolved against the appellant.”

To properly understand this objection we have searched the record and the only thing we find in connection with the published notice is the unsworn statement of the attorney for the Village of Hinsdale and the unsworn statement of someone described as a “voice in the courtroom” who apparently spoke out at various times during discussions between court and counsel. Surely we cannot be asked to take this information as evidence. The “voice in the courtroom” was not sworn, identified or cross-examined. The traditional decorum of the courtroom may seem a severe burden to some and yet without some order to our procedure we would have chaos, as witness, the “voice in the courtroom.”

We have carefully read the entire record in this proceeding. The trial court gave all of the parties every opportunity and we believe all of his rulings were correct and should be affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.