author: ALLOY, P. J.

text:
    In the Matter of the Estate of Betty L. Harnetiaux, Deceased, and Robert L. Harnetiaux, Administrator of the Estate of Betty L. Harnetiaux, Deceased, Administrator-Appellant, v. Franklin M. Hartzell, Claimant-Appellee. Franklin M. Hartzell, Cross-Appellant, v. Robert L. Harnetiaux, Administrator of the Estate of Betty L. Harnetiaux, Deceased, Cross-Appellee.
    Gen. No. 67-6.
    Third District.
    January 19, 1968.

      Wooleyhan, Nielson & Adams, and William F. Nissen, of Quincy, for appellant.
    Franklin Hartzell and John R. Glidden, of Carthage, and Leon L. Lamet, of Warsaw, for appellee.
   ALLOY, P. J.

Robert L. Harnetiaux, administrator of the Estate of Betty L. Harnetiaux, deceased, has appealed to this court seeking reversal of an order of the Circuit Court of Hancock County allowing attorney’s fees to Franklin M. Hartzell, an attorney, in the sum of $15,000. Franklin M. Hartzell, the attorney, cross-appeals for payment of the full amount of a contingent fee based on a contingent fee agreement in the total sum of $18,750.

Betty L. Harnetiaux died on December 19, 1965, as a result of injuries sustained in a gas explosion in Keokuk, Iowa, on November 24, 1965. Her husband, the administrator-appellant in this cause, who was then 39 years of age survived her and she was also survived by a 14-year-old daughter who was mentally retarded. Robert L. Harnetiaux had approached Franklin M. Hartzell for assistance in preparation of an application for Illinois Inheritance Tax Consents for funds held by him and his deceased wife in joint tenancy. There appeared to be no other assets in the deceased wife’s estate other than the claim for wrongful death.

For a number of weeks following the completion of the work on the application for inheritance tax consents, the administrator, Robert L. Harnetiaux considered employing a firm of attorneys in St. Louis, Missouri, or the employment of Franklin M. Hartzell in handling Harnetiaux’s personal claim for injuries and the claim of the estate for wrongful death of his wife. The St. Louis attorneys had submitted a written contingent fee contract based upon a fee of 33%% recovered by way of settlement and 40% in the event of recovery through a trial. Franklin M. Hartzell had agreed by an oral arrangement to a contingent fee contract of 25% of any amount which was recovered by way of settlement, or 33%% of any amount recovered through a trial. The contingent fee arrangement which was suggested by Attorney Franklin M. Hartzell was the usual, customary and reasonable fee of the Hancock County Bar Association in such cases. The administrator thereafter determined to employ Franklin M. Hartzell on the basis of the oral contingent agreement.

After his employment, Attorney Hartzell gathered evidence concerning the cause of death. He interviewed the Administrator; the teacher of the child of the decedent; the Director of the County Education System as to tests of the child; and the attending physician at Keokuk, Iowa. Through an associate and through members and associates of a firm of attorneys in Keokuk, Iowa, with which he had entered into a contract to press the claim in the Iowa courts, a number of witnesses were interviewed with reference to the incident causing death. The scene was visited, photographs were obtained, searches were made of the records of the City of Keokuk with respect to ordinances concerning gas usage and gas lines, etc. An interview was had with a representative of an engineering company in Muscatine, Iowa, and a report secured from such company. The attorney made a study of the applicable law and the facts of the case were evaluated by him in relation thereto to determine the probabilities and possible amount of verdict. Attempts were made to determine the factors relating to proper handling of natural gas since there were no eyewitnesses who could identify the exact cause of the explosion. The facts relating to the decedent such as life expectancy and the survivors were checked for the purpose of analyzing the claim.

About five months after the oral contingent fee contract had been entered into, a representative of the insurance carrier for the gas company approached Attorney Hartzell to discuss the possibility of settlement for damages to Mr. Harnetiaux and for the wrongful death of his wife. The first contact was made following the filing of another suit in the District Court of Lee County, Iowa, against the gas company by another party. After a demand was made by Attorney Hartzell of an aggregate of $150,000 for the two claims, the insurance carrier made an offer of $40,000 in settlement of both claims. Numerous contacts were thereafter made with the insurance carrier either by Attorney Hartzell or by the Iowa firm of attorneys with whom he had become associated in an effort to press the claim. Finally, as a result of these conferences, an offer was made in the aggregate sum of $100,0Q0 for both claims; $75,000 of which was for settlement of the wrongful death claim and $25,000 for injuries to the administrator individually. The attorney recommended acceptance of the offer and after a period of three or four weeks, the administrator agreed upon the settlement.

The record discloses that in the meantime, the trial court (the Circuit Court of Hancock County) approved settlement for damages for another death growing out of the same occurrence in the sum of $75,000 and approved contingent fees in the same percentage sought by the attorney in his cross-appeal. After acceptance of the settlement by the administrator in the cause now before us a petition was filed in Hancock County Circuit Court seeking approval of $75,000 for the wrongful death of the spouse of the administrator and for attorney’s fees based upon the provisions of the contingent fee contract in the amount of $18,750. The petition was subscribed and sworn to by the administrator. There is no record before us of the testimony of the hearing but obviously the existence of the contract was acknowledged by the administrator. Before the evidence was offered, the trial court posed the question to the administrator as to whether or not he was satisfied or whether he would like to have the fees fixed at a lesser sum. Attorney Hartzell at this time pointed out that there was a conflict and that the administrator would be required to seek his own counsel for determination of that issue.

Thereafter, the attorney filed his individual petition for allowance of attorney’s fees based upon the contingent fee contract and at the hearing held thereon on September 19, 1966, the administrator filed his written objections to the allowance of the attorney’s fees. At that hearing, Attorney Hartzell offered his testimony as to his efforts and undertakings as attorney for the administrator and the preparation of Harnetiaux’s individual claim for damages and the claim for wrongful death of his wife and as to the terms of the agreement for the contingent fee contract. Testimony with respect to the reasonableness of the terms of the contingent fee contract was received from attorneys in the area experienced in the field of personal injury litigation, including one of the attorneys who had had a settlement approved before the same trial judge for a wrongful death growing out of the same occurrence and for the same amount of money and on the same contingent fee contract basis sought by the Attorney Hartzell. No evidence was offered by the administrator other than cross-examination of Attorney Hartzell.

The trial court entered an order approving a fee of $15,000 rather than the amount of the fee provided by the contingent fee contract of $18,750. From this decision of the trial court, the administrator took his appeal and Attorney Hartzell cross-appealed for approval of the contingent fee in the contract of $18,750.

On appeal in this court, the administrator contends that the fees allowed to Attorney Hartzell were excessive, unreasonable, and unjustified. He contends that the contingent fee contract under the facts was not justified as a matter of law and established professional ethics on the premise that the number of hours spent by appellee in his representation was not shown and also that there was not a great risk involved in handling the case. There is a further contention that the incompetent minor as a beneficiary of two-third’s of the estate should not be bound by the contingent fee contract and also that the attorney had established a confidential relationship with Harnetiaux when he was consulted with respect to the inheritance tax consents.

The courts of this State have consistently found that a personal representative of an estate may enter into a contingent fee contract prior to appointment, and without court approval, and upon appointment is bound under the doctrine of relation back (Bennett v. Chicago & E. I. R. Co., 327 Ill App 76, 81, 63 NE2d 527; Globe Acc. Ins. Co. v. Gerisch, 163 Ill 625, 631, 45 NE 563; Mason v. Papadopulos, 12 Ill App2d 140, 145, 138 NE2d 821; Phelps v. Elgin, J. & E. Ry. Co., 37 Ill App2d 46, 51, 184 NE2d 799). Under the terms of the Wrongful Death Act, 1965 Illinois Revised Statutes, Ch 70 § 2, it is clearly provided that every action for wrongful death shall be brought in the name of the personal representative of the deceased person. There is no requirement that a guardian of the minor child intervene in such action. The right to institute a wrongful death action and to settle the same is with the personal representative of the deceased and not with an heir (Ryan v. Chicago, M. & S. P. & P. R. Co., 259 Ill App 472, 478).

Contingent fee contracts are the basic means by which much litigation in tort is conducted in this State. A contingent fee contract providing for the percentages established in the cause before us has not been considered inconsistent with professional ethics but in fact has been incorporated as a suggested minimum fee in the schedule of the Illinois State Bar Association and numerous county bar associations including the Hancock County Bar Association, in which county Attorney Hartzell practiced.

There is no basis in the record or on principle in the claim that an attorney’s fee based on a contingent fee contract of 25% on settlement or 33%% as a result of a trial in an action for wrongful death is so grossly excessive as to shock the judicial conscience (Bennett v. Chicago & E. I. R. Co., supra; Phelps v. Elgin, J. & E. Ry. Co., supra). A different principle would apply in allowance of fees paid out of property in litigation such as in derivative action where there has been no prior agreement as to compensation as between the attorney and the client (Orme v. Northern Trust Co., 29 Ill App2d 75, 91, 172 NE 2d 413). An attorney has the right to contract with respect to his compensation before he undertakes the business of his client. There is nothing in the record to show that the relationship of attorney and client had been established as to the particular transaction prior to the making of the oral contingent contract in this case (Ringen v. Ranes, 263 Ill 11, 16, 104 NE 1023).

In a recent Illinois Supreme Court case, Pocius v. Halvorsen, 30 Ill2d 73, 195 NE2d 137, the Supreme Court had before it a different proposition on facts but consistent on principle in which they held an attorney to his contingent contract even though there was no express agreement that he was to do certain work on appeal in such contingent contract.

We find nothing in the record to justify a departure from the contingent contract entered into as between the parties. There is no contention made that there was any fraud in connection with the representation of the administrator individually or in his capacity as adminstrator. The contract was clear and reasonable by its terms and freely entered into between the client and the attorney after due deliberation. Contracts of this type have been consistently approved both in this State and in other states because of the social value thereof in permitting poor individuals to have access to competent counsel in handling of tort cases.

We must, therefore, conclude that the order of the Circuit Court of Hancock County in allowing attorney Franklin M. Hartzell $15,000 for his attorney’s fees was improper and this court finds that the contingent fee contract was binding and not unreasonable or unfair. The attorney’s fees should have been fixed at $18,750 in accordance with the contingent fee contract. The order of the Circuit Court of Hancock County is, therefore, reversed and this cause is remanded to the Circuit Court of Hancock County with directions to the court to enter judgment on Attorney Hartzell’s petition in the sum of $18,750 together with interest thereon and costs.

Reversed and remanded.

STOUDER and SCHEINEMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    Sherman Ryg, Plaintiff-Appellee, v. Gordon V. Brue, Defendant-Appellant.
    Gen. No. 67-12.
    Third District.
    January 19, 1968.
    Rehearing denied February 20, 1968.

      Berry & O’Conor, and Wolslegel and Armstrong, of Ottawa, for appellant.
    John A. McNamara, of Marseilles, for appellee.
   PER CURIAM

opinion.

Plaintiff, a guest passenger in defendant’s car, sued for personal injuries resulting from the alleged wilful and wanton misconduct of the defendant driver. Fourteen wilful and wanton acts were alleged in plaintiff’s complaint. Among these allegations was a charge that the defendant drove the car while he was under the influence of intoxicating liquor. At the close of all the evidence, the defendant moved for a directed verdict in his favor. This motion was denied. The jury returned a verdict in favor of plaintiff in the sum of $50,000, and judgment was entered upon the verdict.

Defendant moved for judgment n.o.v., or in the alternative, for a new trial. The principal ground for relief asserted in the post-trial motion was that plaintiff was guilty of contributory wilful and wanton misconduct as a matter of law. Defendant now appeals from the judgment and from the denial of the post-trial motion.

The evidence in this case indicated that plaintiff was a farm laborer who was employed by defendant, and that during a rainy afternoon in April of 1964, he and defendant, without anything else to do, decided to visit the village of Ransom, where they stopped at a restaurant for a bite to eat and then went to a tavern. They stayed in the tavern for six to six and one-half hours, during which time the plaintiff drank eight or nine 8-ounce glasses of draft beer. The evidence is somewhat conflicting as to the amount of beer or liquor consumed by the defendant, but he had at least the same amount as the plaintiff and perhaps more and possibly a few shots of whiskey. At about 11:30 p. m., plaintiff and defendant left the tavern and defendant drove them back to the farm in a 1954 pickup truck which he owned. The roads were slippery and a light rain was falling. The windshield wipers on the truck didn’t work very well. When approaching a Y-intersection north of Ransom, plaintiff spotted a semitruck approaching them and twice warned defendant to get on his own side of the road. Defendant’s truck then collided with the semitrailer on the left side of the roadway. As a result of the collision, plaintiff was seriously injured, requiring him to be hospitalized for more than a year.

The defendant testified to drinking with plaintiff in the tavern, and admitted that they bought each other rounds. He made no direct admission that he was intoxicated, but did state that he “had been drinking a little,” but that he was “all right to drive.” Plaintiff admitted that he and defendant drank two beers together, but said that, after the first two beers, defendant and he separated. Defendant then talked to others in the tavern.

Plaintiff, on direct examination, stated that he “didn’t notice anything unusual” about defendant. However, on section 60 examination, plaintiff admitted that defendant’s speech and gait were not normal, and that he knew defendant was drunk before they got into the truck together. Plaintiff then testified on his own behalf on rebuttal, and said that his opinion on defendant’s intoxication was formed after the collision.

It is clear from an examination of the testimony relative to drinking and intoxication that plaintiff and defendant did drink together, and that plaintiff entered defendant’s truck voluntarily when they left the tavern. It is also clear that plaintiff did at some point in time form an opinion that defendant was intoxicated.

We are thus squarely faced with the question of whether, in the light of the foregoing facts and circumstances, plaintiff was guilty of contributory wilful and wanton misconduct. In making this determination, we must be guided by the recent pronouncement of our Supreme Court in Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504. The court there said: “In our judgment, verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant, that no contrary verdict based on that evidence could ever stand.”

We are therefore bound to affirm the trial court’s verdict unless all the evidence in this case and all reasonable inferences therefrom viewed in the light most favorable to the plaintiff wholly fails to support plaintiff’s case.

The evidence does fairly tend to show that the plaintiff warned defendant that a truck was approaching, and that he asked him to slow down and to get over on his own side of the road. Therefore, any failure of proof on the issue of contributory wilful and wanton misconduct must rest on the issue of the intoxication.

In Anderson v. Launer, 13 Ill App2d 530, 142 NE2d 838, the court was faced with a similar factual situation. The evidence showed that defendant and plaintiff’s intestate drank a quantity of liquor together, and that plaintiff’s intestate then voluntarily got into the car and drove with defendant. The court was asked to rule whether this voluntary participation in the drinking and voluntary subjection to peril by riding in the automobile constituted contributory wilful and wanton misconduct as a matter of law. The court held that it did not, and concluded that this was a question for the jury to decide. A similar result was reached in Busser v. Noble, 22 Ill App 2d 433, 161 NE2d 150.

In applying this principle to the facts in the case at bar, we must hold that whether plaintiff’s voluntary participation in the drinking and his voluntary subjection of himself to the peril of riding with an intoxicated person constituted wilful and wanton misconduct was a question of fact for the jury to decide.

The evidence as to the extent of plaintiff’s participation in the drinking is conflicting. Also, plaintiff’s awareness of defendant’s state of intoxication is not so clearly established that different inferences could not be drawn by reasonable men. These are evidentiary matters that are traditionally within the province of the jury.

The evidence in this case, viewed in its aspect most favorable to the plaintiff, does not so unquestionably favor the defendant that the verdict based on that evidence should be reversed.

For the foregoing reasons the judgment of the Circuit Court of LaSalle County is affirmed.

Judgment affirmed.


text:
    J. Donald Pilgrim, Highway Commissioner of the Town of Lyndon, Plaintiff-Appellant, v. Charles O. Chamberlain, et al., Defendants-Appellees.
    Gen. No. 67-31.
    Third District.
    January 19, 1968.

      Karl Yost, of Morrison, for appellant.
    Jacob Cantlin and Donald E. Blodgett, of Rock Falls, and Stephen A. Deckro, Jr., of Morrison, for appellees.
   ALLOY, P. J.

The cause before us involves action of the Circuit Court of Whiteside County with respect to a gravel road in the Town of Lyndon, Whiteside County. The record discloses that in 1858 the Commissioner of Highways of the Town of Lyndon refused to lay out a road in the town. Following this, a citizen on February 28, 1858, filed an appeal with the Town Clerk who selected three supervisors of the County of Whiteside to consider the appeal. Apparently, a survey was made after authorization by the Supervisors on April 8, 1858. The plat, however, which was filed consisted only of a single line drawn on a paper with no mention of the width of the proposed road which was being laid out. The evidence disclosed that for years the road in question was not opened or used to a width of four rods (66 feet). Such road followed fence lines, and such fence lines had comprised the road boundary for 60 or 70 years.

The 1857 dedication statute pursuant to which the procedures were apparently undertaken provided that the Commissioners of Highways were to lay out the roads and cause a survey to be made. It was further provided in such statute (Scates’ Comp pp 353, 355, 357) that when the commissioners refused to lay out a road, an appeal could be made to the supervisors and, in the event the supervisors reversed the commissioners, the supervisors were authorized to proceed in laying out the highway in the same manner as the commissioners were so authorized. There was a further provision in the same statute that all public roads laid out by commissioners “shall not be less than four rods wide.”

In 1966, the Highway Commissioner of the Town of Lyndon wished to improve the existing gravel road by grading and blacktopping it. The Dixon office of the Division of Highways apparently insisted that the roadway be graded and improved to a full width of 66 feet throughout. The Highway Commissioner requested that the adjoining owners move their fences back to a line which would provide a 66-foot right-of-way. Some of the owners refused to move their fences unless the town would pay for building the new fence. Following such refusal, the Commissioner filed the present action for a mandatory injunction to compel the owners to allow the Commissioner to grade and use the road to a full 66-foot width.

The case was heard without a jury and the trial judge entered a judgment on January 9, 1967, denying the injunctive relief sought. The simple issue is whether the Town of Lyndon has any title to and may utilize a 66-foot width for a road when that road has been used continuously between fence lines bordering on both sides of the road and has never been opened or used to a width of four rods at the locations in question.

We first give attention to the question of whether or not the dedication in 1858 became, in effect, a statutory dedication or a common-law dedication. As stated in Clokey v. Wabash Ry. Co., 353 Ill 349, 187 NE 475, at pages 360-361:

“There is a marked distinction between the legal effect of property purported to be dedicated by statutory plat and that purported to be dedicated by common-law plat. By a statutory plat the fee to the premises purported to be conveyed is vested in the municipality having control over the way alleged to be dedicated, subject to acceptance by such authority, while under common-law plat the fee of the tract purported to be conveyed remains in the dedicator, burdened only with the easement over the way in question and subject to the acceptance of such easement by the municipality to whom the dedication is purported to be made, or which, as a matter of law, has control over the ground dedicated. Under a common-law plat the grantor may, at any time prior to acceptance of the grant, revoke the dedication.”

In the case before us, the highway commissioners refused to lay out a road and the supervisors reversed this determination and laid out the road. There is no showing that the supervisors complied with the applicable statute in that the plat, being a single line did not describe the width of the road. Even though the statute at this time stated specifically that all public roads to be laid out by the commissioners of highways of any town shall not be less than four rods wide, this provision would not necessarily apply to the supervisors when they laid out the road on appeal from the highway commissioner’s decision since by statute they had the right to alter, discontinue, or lay out the road applied for as the case may be. The provision relating to the four-rod width refers only to roads laid out by the commissioners of highways of any town. We have noted the books of the commissioners of highways of the Town of Lyndon contained a recital on February 14,1860:

“And we do further . . . that the line of said survey be the center of said Road and that the same be the width of four rods.”

This does not, however, indicate that the supervisors had laid out a four-rod road at that time. Since the statute provides that the supervisors were to determine the nature of the road an order by the commissioners could not supplement or be used to complete a statutory dedication which may have been improperly undertaken and improperly completed by the supervisors. Since the supervisors had the right by statute to alter, discontinue or lay out the road, it is the action of the supervisors which determines the nature of the road established at the time in question.

In Clokey v. Wabash Ry. Co., supra, it was concluded that there was no statutory dedication since the plat in that case made no reference to a monument or cornerstone as the applicable statute required. This was determined to be lacking and not in substantial compliance with the statute. In Nimpfer v. Village of Fox Lake, 334 Ill 46, 165 NE 143, at page 50, the court indicated that the plat failed to comply with the statute in not referring to some permanent monument or fixed cornerstone from which future surveys might be made. The court there concluded that the plat must, therefore, be held not to be a statutory plat. In Village of Augusta v. Tyner, 197 Ill 242, 64 NE 378, an attempted statutory dedication failed because the survey was made by a deputy county surveyor instead of the county surveyor as required by statute. In City of Ottawa v. Yentzer, 160 Ill 509, 43 NE 601, a plat was filed under a statute providing that the road when located shall be a State road and opened and kept in repair as other State roads. When it was never opened or used for public use, as the statute required, the court determined that there was no statutory dedication.

In considering the case before us, we recall the language in Nimpfer v. Village of Fox Lake, supra, at page 49, where the court pointed out:

“By the statute the title to a street dedicated to and accepted by a village under a statutory plat becomes vested in the village. This statute is in derogation of the common law, and a plat which does not strictly comply with the provisions of the statute is not a statutory plat.”

In view of the vague nature of the description and the plat in the case before us and the minutes which are shown on the record, it is difficult to sustain the dedication as a statutory dedication in the years between 1857-1860.

On the assumption that we are dealing with a common-law dedication, we need only the intention of the owner to donate the land to public use, its acceptance by the public, and clear, satisfactory and unequivocal proof of these facts (McCue v. Berge, 385 Ill 292, 52 NE2d 789, at pages 299-300). On the assumption that the most we have before us is a common-law dedication in the instant case, under such dedication the width of the road can be determined by the fence line established by the owners along the road (Village of Middleton v. Glenn, 278 Ill 149, 115 NE 847, at pages 151-152). In the Middleton case the court stated that the public road to the north of the land in question was shown to have been used for more than 50 years. The sole question was the location of the southern boundary of the road along the north side of the land:

“As the road was not originally laid out under the statute by the commissioners of highways, its width and location would be determined by the fences built by the owners on either side of it, whether it existed by prescription or dedication.”

As stated in Town of Harmony v. Clark, 250 Ill 57, 95 NE 47, at page 60:

“As the road was not originally laid out under the statute by the commissioners of highways, its width would be determined by the fences built by the owners on each side of it, whether it existed by prescription or dedication.”

In the latter case, the court determined that the evidence established the “rail fence on the north side of the road marked the boundary of the highway.”

Where there is a common-law dedication, the municipality could accept a part of the road and reject the rest. The mere fact that the municipality approved the plat at the time it was originally recorded does not constitute acceptance on the part of the municipality of the streets and alleys contained therein. After acceptance of the plat the municipality still had the right to elect which of the streets shown thereon it will accept and it could accept a part and reject the remainder and might even accept part of a street and reject the remainder thereof (Clokey v. Wabash Ry. Co., supra).

Assuming there was a valid statutory dedication, the record still indicates that the Town of Lyndon did not accept the entire 66 foot width (Hamilton v. Chicago, B. & Q. R., 124 Ill 235, 15 NE 854). In the Hamilton case, the court stated:

“It is well settled, that at common law, to make a complete dedication there must be acceptance, — not any formal act of acceptance, but that there must be user, or some other act indicating acceptance by the public authorities, in order to complete the dedication . . . And this principle applies to statutory dedications by the making, acknowledging and recording of a town plat, as well as to common-law dedications, as has been expressly decided by this court. (Littler v. City of Lincoln, 106 Ill 353.) ”

To the same effect are City of Venice v. Madison County Ferry Co., 216 Ill 345, 75 NE 105, and Iglehart v. Chicago & A. R. Co., 241 Ill 268, 89 NE 431. Since the Town of Lyndon never opened the road to the 66-foot width in the areas in question it is difficult to sustain an acceptance of any more of the road than the portion of the road which was inside the fences.

We, therefore, conclude that under the record in this case, the width of the road at the points in question necessarily would be the width between the established fence lines. We, accordingly hold that the Circuit Court of Whiteside County was justified in denying the request for a mandatory injunction and should be affirmed.

Affirmed.

STOUDER and HOFFMAN, JJ., concur.


author: CULBERTSON, J.

text:
    George Csalany, Plaintiff-Appellee, v. William Senesac and Bob Neiner, Defendants-Appellants.
    Gen. No. 67-62.
    Third District.
    January 19, 1968.

      Gray, McIntire & Peterson, of Kankakee, for appellants.
    Samuel H. Shapiro, and Edward G. Vogt, of Kankakee, for appellee.
   CULBERTSON, J.

This cause comes on for hearing before us by appeal seeking the reversal of a judgment entered in favor of the Plaintiff, George Csalany, and against the Defendants, William Senesac and Bob Neiner, in the amount of $12,850. The narrowed issue presented to us for determination is the question as to whether or not the plaintiff was guilty of contributory negligence, as a matter of law.

The evidence in this case, which is largely undisputed, reveals the facts to be that the plaintiff in this case, on July 7, 1961, was driving his automobile in an easterly direction on the Manteno-DeSelm road, a two-lane highway, about two miles west of Route 45, in Kankakee County, enroute from his home three miles away, to his place of employment in Oak Park, Illinois. Defendant Senesac was driving a truck with a huskwagon attached behind it, in the same direction, at a point where a gravel road intersects the Manteno-DeSelm road, on the north side only. The huskwagon pulled by the cob truck driven by the defendant Senesac, extended out past the cob truck on the side, and the wagon was wider than the truck, and did not have any holes or openings that one could see through. The plaintiff was in the process of passing the defendant’s truck-huskwagon combination on the left, when defendant Senesac executed a left-hand turn into the side road from the south lane of the Manteno-DeSelm road. At the point of the intersection of the two roads, the vehicles collided. Plaintiff sustained personal injuries and property damage.

Plaintiff testified that he was not aware of the existence of the road until after the collision. The intersection was not marked by signs indicating its existence, but the evidence discloses the two roads had joined at that point for many years. The plaintiff testified he did not see any signal indicating a left turn. Defendant Senesac testified he looked in the rearview mirror and saw a car that passed him about 150 feet or so from the place he turned. He was in front of the farmhouse gate when that car passed him. Defendant Senesac testified he did not know at the time he said he gave his arm signal that the turn signals on his truck were obscured by the wagon. Defendant Senesac further testified he couldn’t see farther back than 200 feet in the rearview mirror when he started turning, as the huskwagon obscured his view. He further testified when he gave his arm signal he had to bring it back in, although he was 150 feet away from the intersection, and then he said he took his arm in about fifteen feet from the corner to guide the vehicle. The evidence discloses the truck was about 35 to 40 feet from the intersection, and plaintiff was about 50 to 55 feet from it when he started to pass. The visibility was good on the day of the occurrence in question, it being a clear and sunny day. Plaintiff testified as he started to pass he honked his horn, and that he was then traveling at a speed of 40 to 45 miles per hour. The speed limit in the area where this occurrence took place was 65 miles per hour. Plaintiff’s Exhibits portray the scene of the accident, and disclose that there are farmhouses on either side of the gravel road, and there are driveways to them. The side road where the occurrence took place is between two houses. The farm truck was damaged on the left front door and front end, and the undercarriage of plaintiff’s car was damaged. This is the factual situation which was presented to the jury for its determination.

It is the contention of the defendants in this case, under the facts in evidence in this case, the plaintiff was guilty of contributory negligence, as a matter of law, for having violated the provisions of chapter 95%, section 155 (b) (2), Illinois Revised Statutes, which said statute is as follows: No vehicle shall, in overtaking and passing another vehicle or at any other time, be driven to the left side of the roadway under the following conditions: (2) when approaching within 100 feet of or traversing any intersection or railroad grade crossing.

As we address ourselves to a consideration of the contention made by the defendants in this case, and the opposition thereto by the plaintiff, it is well that we first address ourselves to a consideration of Rules of Law that have long prevailed and that have shown a marked durability over the years. Where reasonable men would differ when viewing evidence as to whether or not a plaintiff is guilty of contributory negligence, it is a question of fact rather than of law (Pennington v. McClain, 16 Ill 2d 577, 158 NE2d 624). Where reasonable men would differ as to the inferences to be drawn from undisputed facts, it is a question of fact, rather than law (Turner v. Cummings, 319 Ill App 225, 48 NE2d 225).

The violation of a statute is at most prima facie evidence of negligence, and not negligence per se (Brackett v. Builders Lumber Co. of Decatur, 253 Ill App 107). In giving consideration to the question of passing at an intersection in violation of the statute the Courts have held, in the following cases, a question of fact was presented (Hestand v. Clark, 345 Ill App 480, 103 NE2d 652; Pfile v. Owens, 331 Ill App 390, 73 NE2d 445; and Piper v. Dowell, Inc., 335 Ill App 337, 80 NE2d 736).

Under the factual situation as disclosed by the evidence in this case, we are of the opinion the question of whether or not plaintiff was guilty of contributory negligence was a question of fact, and it was properly submitted to the jury for its consideration. The jury in this case was adequately and accurately instructed as to the burden the plaintiff was obliged to prove to sustain a verdict in his behalf. Under the facts as they are disclosed in the evidence in this case we are of the opinion, and so hold, there was no error on the part of the court in denying the defendants’ motion for a directed verdict, or in the denial of the defendants’ motion for judgment notwithstanding the verdict, and in denying the post-trial motion in its entirety.

It is, therefore, the judgment of this court that the verdict entered in behalf of the plaintiff and against the defendants be and the same is hereby affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. James Cadillac Thomas, Defendant-Appellant.
    Gen. No. 51,565. (Abstract of Decision.)
    First District, First Division.
    January 15, 1968.
    Rehearing denied January 29,1968.
    Daniel D. Glasser and Helmut Eifert, of Chicago, for appellant; Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen, Sydney R. Drebin, Marsile J. Hughes, and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BURMAN. Not to be published in full.


author: STOUDER, P. J.

text:
    People of the State of Illinois, Appellee, v. Gloria Hougas, Defendant-Appellant.
    Gen. No. 66—69.
    Third District.
    January 25, 1968.

      Wolslegel & Armstrong, of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney of LaSalle County, of Ottawa, for appellee.
   STOUDER, P. J.

Defendant-Appellant, Gloria Hougas, was indicted for the offense of arson. During a trial before a jury of the Circuit Court of LaSalle County, a motion for a directed verdict of not guilty was made by Defendant at the close of the People’s case. The motion was denied by the trial court. Thereafter Defendant’s counsel declined to participate further in the case and did not rest her case. It was Defendant’s contention in the trial court and again renewed in this court that he had the right to appeal from the order denying his motion for directed verdict and that any further participation in the trial of the case would waive Defendant’s right of appeal. Nevertheless the trial proceeded and the jury found Defendant guilty. Judgment of conviction was entered and sentence imposed. Appeals are before us, both from the order denying the motion for directed verdict, and from the judgment of conviction.

Defendant claims that the trial court erred in denying her motion for a directed verdict at the close of the People’s case and further that she has the right to appeal from such order. In the absence of a statute expressly granting the right of review of a particular interlocutory decision, a case may not be taken to a reviewing court until a final judgment has been rendered, and this means a decision on the merits, or a definite and certain sentence. Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371, 15 ILP, Criminal Law, § 843.

Defendant does not rely upon any statute or rule of court but rather on the cases of Carson v. Western Hotel Corp., 351 Ill App 523, 115 NE2d 800; People v. Washington, 23 Ill2d 546, 179 NE2d 655; People v. Slaughter, 29 Ill2d 384, 194 NE2d 193, and People v. Lacey, 49 Ill App2d 301, 200 NE2d 11. The rule announced in these cases is, if, after the denial of a motion to dismiss or directed verdict at the close of Plaintiff’s evidence, the defendant introduces any evidence in his own behalf, any error relating to the motion is waived. Such rule does not thereby render the denial order an immediately appealable order but provides only that if the defendant believes the plaintiff has not sustained his required burden of proof notwithstanding the trial court’s order to the contrary, the defendant must elect whether to present evidence or submit the case to the jury on the evidence produced by the plaintiff. Accordingly we believe the appeal from the order denying the directed verdict is improper.

Defendant also argues that the judgment is improper first because the trial court erroneously failed to suppress the alleged oral confession and second the People failed to prove by competent evidence, the fact that a criminal offense had occurred, that is, the corpus delicti.

In our view of this case we do not believe it necessary to determine whether the alleged oral confession was voluntary or involuntary since even assuming the confession to be voluntary we believe the judgment is erroneous. A mere naked confession, uncorroborated by any circumstance inspiring belief in its truth arising out of the conduct of the accused or otherwise, is held insufficient to convict. Evidence independent of the confession need not establish the corpus delicti but must corroborate the fact that a criminal act has been committed. People v. Nachowicz, 340 Ill 480, 172 NE 812, and People v. Lueder, 3 Ill2d 487,121 NE2d 743. It is not necessary that the corpus delicti be established by evidence completely independent of that which tends to connect the accused with the crime. People v. Nachowicz, 340 Ill 480, 172 NE 812. “Experience has shown that untrue confessions may be given to gain publicity, to shield another, to avoid apparent peril, or for other reasons, and because of this, the law demands corroborating proof that a crime did in fact occur before the individual is punished therefore.” People v. O’Neil, 18 Ill2d 461, 165 NE2d 319.

The corpus delicti, where the offense of arson is charged, consists of two elements; (1) That a certain result occurred, in this case the burning of a building; and (2) that some person is criminally responsible for the act. Carlton v. People, 150 Ill 181, 37 NE 244, and People v. Lueder, 3 Ill2d 487, 121 NE2d 743. Defendant argues there is no evidence independent of the alleged oral confession tending to prove that the destruction of the barn by fire was caused by any criminal act nor is there evidence tending to corroborate Defendant’s alleged oral confession in this respect. The People insist that the testimony of Defendant’s husband is corroborative of Defendant’s confession. Initially we note the record indicates that the Defendant had been under psychiatric treatment and was apprehensive about certain consequences which might have resulted from the possible involvement of her twelve-year-old, mentally retarded, son. Both of these circumstances would tend to affect the probability of the reliability of the confession. The evidence relied upon by the People as corroborative of the confession is the testimony of the husband. He testified that he was raking hay in a field approximately 80 rods from the barn when he saw smoke pouring from both ends of the barn. At or about the time of the fire the Defendant was in the house with the children. When the husband arrived at the barn, the hay in the barn was burning and the fire was out of control. It also appeared from the evidence that the relations between Defendant and her husband were not amicable. Such evidence does not independently establish that the fire was incendiary in origin nor do we believe that the evidence tends to corroborate the confession. Neither the Defendant’s presence in the house nor the meager description of the fire itself, indicate any circumstances from which it might be inferred that the fire was willfully set. This leaves us only with the hostility between Defendant and her husband as evidence of a motive which is insufficient to support the conclusion that the fire was willfully set. In People v. O’Neil, supra, the case principally relied upon by the People, it was determined that a fire started under the stairs in a 100-unit apartment building. The facts which were sufficient to corroborate the confession were that the Defendant attempted to break into the apartment building some days after the fire, that he reenacted his activities which confirmed the determination of the place of commencement of the fire and attempted to commit suicide while in custody. The evidence, independent of the confession, in the instant case falls far short of that in the O’Neil case and in considering such evidence together with the alleged confession, we believe there is insufficient evidence to prove that the fire was the result of a criminal act.

Finding error in the judgment of the Circuit Court of LaSalle County said judgment is reversed.

Judgment reversed.

ALLOY, P. J. and CULBEETSON, J., concur.


text:
    William Swearinger, a Minor, by Raymond C. Swearinger, His Father and Next Friend, Plaintiff-Appellee, v. Isabella P. Klinger, Defendant-Appellant.
    Gen. No. 66-84.
    Third District.
    January 25, 1968.

      John A. Slevin, Thomas E. Schlehuber, and Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellant.
    Thomas V. Cassidy and Sidney D. Davidson, of Peoria, for appellee.
   STOUDER, P. J.

This action was commenced by Raymond Swearinger, father and next friend of William Swearinger, a minor, Plaintiff-Appellee, for personal injuries resulting from the alleged negligent operation of an automobile by Isabella Klinger, Defendant-Appellant. Judgment on a $20,000 verdict was entered by the Circuit Court of Peoria County in favor of the Plaintiff. No questions are raised on the pleadings.

This cause of action is the result of a collision between an automobile operated by Donna Swearinger and another automobile operated by Isabella Klinger. Appellee, then age 4 years, was a passenger in the Swearinger car. The collision occurred at an intersection controlled by traffic lights. Several witnesses testified in behalf of each party concerning the conduct of the drivers at the intersection.

Defendant contends on this appeal that the trial court improperly denied her motion for a new trial because first, the trial court improperly refused to admit competent evidence and second, the amount of the jury’s verdict was excessive.

Donna Swearinger, operator of the automobile in which William her son, Plaintiff, was a passenger, was not a party to the action and did not testify. According to the testimony of her husband, Donna Swearinger, on the day of the trial, was at home caring for a son who had the measles. During the trial the Defendant attempted to testify to certain statements made by Donna Swearinger after the collision. Upon objection to such testimony by Plaintiff an offer of proof was made outside the presence of the jury. Defendant in her offer of proof, testified, that immediately after the collision she went to the automobile operated by Donna Swearinger and had a conversation with her, inquiring first about the children in the car. According to Defendant, Donna Swearinger stated “I couldn’t stop for the light.” The offer of proof was refused by the trial court and Defendant’s testimony concerning such statement was not presented to the jury. Again during the testimony of Police Officer Short who investigated the collision, an effort was made to elicit from the witness an oral statement purportedly made to him by Donna Swearinger. Objection was made to the question designed to elicit such statement and again an offer of proof was made outside the presence of the jury. The offer of proof referred to a conversation which took place in a nearby filling station from 5 to 15 minutes after the collision and Officer Short stated that in response to a question by him as to what had happened Donna Swearinger answered, “I guess I run the red light.” This offer of proof was also refused by the court.

Defendant contends that the testimony of the Defendant and Police Officer concerning the oral statements made by Donna Swearinger is competent as an exclusion to the hearsay rule because such statements of Donna Swearinger were a part of the res gestae or were declarations against interest. There is no question but that the statements of Donna Swearinger are hearsay and therefore inadmissible, unless they come within some recognized exception to the hearsay rule. Under certain conditions a spontaneous declaration or an excited utterance may be properly admissible as an exception to the hearsay rule. The factors necessary to bring a statement within this exception are an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, absence of time to fabricate, and the statement must relate to the circumstances of the occurrence. People v. Poland, 22 Ill2d 175, 174 NE2d 804. An unspontaneous narrative or recital of a past event does not come within this exception. Darling v. Charleston Community Memorial Hospital, 50 Ill App2d 253, 200 NE2d 149.

In applying the foregoing, we believe the trial court properly excluded the purported statements of Donna Swearinger since they were not spontaneous utterances. In both instances the statement ascribed to Donna Swearinger was elicited during conversations with her. In Johnson v. Swords Co., 286 Ill App 377, 3 NE2d 705, the statements which were held properly excluded by the trial court took place after a boy injured in front of his house had been moved to the lawn area. In Peterson v. Cochran & McCluer Co., 308 Ill App 348, 31 NE2d 825, the court held the statement of the Plaintiff properly excluded when made to a witness one-half minute after the occurrence in response to an inquiry by the witness as to what had happened. Nor do we consider that the purported statement of Donna Swearinger might be deemed against her interest has a bearing upon the spontaneity of her statement.

Defendant also argues that such statements are admissible as being declarations against interest relying on German Insurance Co. v. Bartlett, 188 Ill 165, 58 NE 1075. One of the conditions necessary for a declaration against interest to be admissible as an exclusion to the hearsay rule is that the declarant must be unavailable to testify. As stated in German Ins. Co. v. Bartlett, supra, this usually means that the declarant is deceased. In Levy v. American Automobile Ins. Co., 31 Ill App2d 157, 175 NE2d 607, the court reaffirmed the rule that the declarant must be unavailable before the statement against interest of such declarant can be admitted as evidence. We do not believe that Donna Swearinger was unavailable in any legal sense merely because it might be deemed that she had an adverse interest to that of the Defendant or that she was not in the court during the trial in the absence of any showing in the record that Defendant made any effort to secure and present her testimony.

Defendant’s last assignment of error is that the verdict and judgment for $20,000 is excessive as a matter of law. There is no precise rule by which an award of damages can be fixed in an action for personal injuries because such compensation does not lend itself to mathematical computation. Barango v. Hedstrom Coal Co., 12 Ill App2d 118, 138 NE2d 829. This is particularly true when the person sustaining the injury is a child since the range of future consequences is necessarily far-reaching. The goal of an award for damages is fair and reasonable compensation. Such determination is peculiarly within the province of the jury or the trier of the facts. Unless such determination is based on error or motivated by passion or prejudice it should not be disturbed. We believe that the verdict and judgment are amply supported by the evidence.

Without detailing the medical evidence we believe that it can be said that William, the minor, exhibits no particular outward appearance of ill health. The principal area of controversy on the issue of damages was raised by disputed interpretations of EEG examinations. We believe that the jury could have concluded properly that there was a brain injury resulting from the collision which caused epileptic-type activity. Although the condition was controllable by medication and recovery might be expected within 4 to 6 years such condition might also be permanent.

Judgment of the Circuit Court of Peoria County is affirmed.

Affirmed.

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


text:
    Moline I. F. C. Finance, Inc., Plaintiff-Appellant, v. Donna Soucinek, Defendant-Appellee, and First National Bank of Moline, Illinois, Garnishee-Appellee, and Frank Soucinek, Intervenor-Appellee.
    Gen. No. 67-18.
    Third District.
    January 25, 1968.

      Marvin S. Andich and Peter Soble, of Rock Island, for appellant.
    Sidney S. Deutsch, of Rock Island, and Joseph Van Hooreweghe, of Moline, for appellee.
   ALLOY, P. J.

On November 4, 1966, Moline I. F. C. Finance, Inc., appellant in this cause, took a judgment on a note as against Donna Soucinek, defendant-appellee, in the sum of $2,750. On November 7, 1966, appellant-finance company filed an affidavit for garnishment which was served with interrogatories on the First National Bank of Moline at 3:00 p. m. on November 7, 1966. The summons and interrogatories referred the bank to an account in the name of “Frankie and Dohnnie” in which there was $385.71 on deposit at the time of the garnishment service. After deposit was made that day the account on the next morning showed a balance of $2,257.80. The deposit which was made on the day the garnishment summons was served was the proceeds of a loan from a Bob Halgren to Frank Soucinek in order that Frank Soucinek might cash checks in his tavern. Before the bank answered the summons, Frank Soucinek petitioned to intervene in the garnishment action on the ground that he was the owner of the bank account. The trial court allowed intervention on November 10, 1966, and on the same day heard evidence as to the ownership of the account. Frank Soucinek testified that he was the owner of the account known as “Frankie and Dohnnie.” He also testified that he was the owner of the tavern and that the money in the account came from his earnings while working for Deere, Inc., and also from money which was borrowed to start the tavern ($500 from his wife’s parents and $500 from Deere credit union). This was all done about three months prior to the garnishment.

Frank Soucinek testified that he owned the tavern, but his wife’s name was also on the license and she worked tending bar in the tavern and wrote checks to pay for merchandise delivered to the tavern. Donna Soucinek testified she worked in the tavern while her husband was employed at Deere but she now seldom works in the tavern. She also confirmed the $500 loan from her parents. The evidence also disclosed that the “Frankie and Dohnnie” account was opened on August 18, 1966. Donna Soucinek had come to the bank to open the account and she was the “Dohnnie” in the “Frankie and Dohnnie” account. The evidence showed that Frank Soucinek, her husband, was the Frank listed in the account. A temporary signature card was signed by Donna Soucinek and she was given a permanent card to have her husband, Frank Soucinek, sign. The permanent card was never returned and the only record the bank had as to the account was the name of the account, “Frankie and Dohnnie,” and the temporary signature card authorizing Donna Soucinek to sign checks on that account.

Following a hearing on the merits the trial court ordered the garnishment quashed and released the bank. Appellant-finance company filed a motion to vacate and amend the garnishment order. This was denied and the plaintiff has appealed to this court.

On appeal in this court, appellant-finance company contends that the trial court’s findings were against the manifest weight of the evidence, and also that the intervenor, Frank Soucinek, should be estopped from asserting his claim to the ownership of the funds.

It was clear from the evidence that the account was not the individual account of Donna Soucinek. If the account is considered to be a joint account it is clear from the precedents in this State that the legal effect of a joint bank account is governed by the provisions of the agreement between the bank and its depositors and also that parole evidence may be received to establish the true ownership of the joint bank account (In re Schneider’s Estate, 6 Ill2d 180, 127 NE2d 445). From the record in this cause it is clear that the funds in the “Frankie and Dohnnie” account did not belong to Donna Soucinek, and, on the record, Frank Soucinek has clearly sustained the burden of proving his ownership of the account. There was no evidence that the money in the account was the property of anyone other than the intervenor Frank Soucinek. On the basis of the evidence in the record, it cannot be said that the finding of the court was against the manifest weight of the evidence (Nudelman v. Riverview Home Buildings, Inc., 36 Ill App2d 317, 184 NE2d 139).

The appellant-finance company also contends that Frank Soucinek should be estopped from claiming any interest in the “Frankie and Dohnnie” bank account. There was no evidence that the finance company was in any way misled or lost any legal rights that they might have had in reliance on any conduct on part of intervenor, Frank Soucinek. In the case of Shapera v. Fargo, 240 Ill App 145, the rule in Illinois as to the operation of estoppel is stated (Page 154):

“Estoppel . . . arises whenever one by his conduct, affirmative or negative, intentionally or through culpable negligence, induces another to believe and have confidence in certain material facts, and the latter having the right to do so, relies and acts thereon, and is as a reasonable and inevitable consequence, misled, to his injury.”

Nothing in the record discloses that Frank Soucinek had done anything which would operate to estop him from claiming his interest in the “Frankie and Dohnnie” account. The mere fact that there was an account in the bank in the name of “Frankie and Dohnnie” could not estop the intervenor Frank Soucinek from claiming his interest in the account. We, therefore, conclude that there was no basis for invoking the doctrine of estoppel as against Frank Soucinek in this case.

We, therefore, conclude that the trial court properly found that Frank Soucinek was the owner of the aeount and that such finding is not against the manifest weight of the evidence. The judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER and CULBERTSON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kascell Jennings, Defendant-Appellant.
    Gen. No. 66-143. (Abstract of Decision.)
    Fifth District.
    January 31, 1968.
    Joseph B. McGlynn, Jr., of East St. Louis, for appellant; John M. Karns, Jr., State’s Attorney of St. Clair County of Belleville, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


text:
    Betty McCabe, Objector-Appellant, v. Paul Dickerson, Administrator, and Lawrence J. Starman, Defendants-Appellees.
    Gen. No. 67-44. (Abstract of Decision.)
    Fifth District.
    February 2, 1968.
    Wham & Wham, of Centralia, for appellant; no brief filed for appellee.
   Opinion PER CURIAM. Not to be published in full.


author: TRAPP, J.

text:
    Town of Normal, Plaintiff-Appellee, v. Porter Witham, Defendant-Appellant.
    Gen. No. 10,874.
    Fourth District,
    January 22, 1968.

      Paul R. Welch, of Bloomington, for appellant.
    Fleming, Messman and Lapan, of Bloomington (Roger D. Lapan, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from a conviction for violation of an ordinance of the Town of Normal as charged under a Uniform Traffic Ticket and Complaint. Following a bench trial, a fine of $15, plus costs of $5, was imposed. No issues are raised by the pleadings.

Issues raised upon the appeal include (1) whether the plaintiff proved the ordinance for the magistrate sufficiently to enable the court to enter judgment, (2) was sufficient evidence adduced to establish guilt by a clear preponderance of the evidence, and (3) it is contended that the ordinance was unconstitutional.

Plaintiff’s evidence included the testimony of one Carol Haney who recounted that between 11:00 p. m. and midnight on July 15, 1966, she heard a noise which she believed to be a tractor coming down the street and went to the window. She observed a car come to a stop and a man get out and run down the sidewalk. She observed that the car had a flat tire. She procured the calling of the police, who arrived in about 5 minutes. A City police officer testified to going to the car in response to the call and found it with a broken windshield on the left side and three flat tires. There was some damage to the front end of the car. Some blocks distant, at the intersection of Main and Bowls Streets in the Town of Normal, tire marks travelling some 116 feet upon a median were discovered. In traversing the median, the automobile had knocked down two municipal traffic signs. The ownership of the automobile was ultimately traced to the defendant. Other police testimony reflects that on the 19th of July, 1966, the defendant came to the police station and claimed ownership of the automobile described and apparently participated in the preparation of an accident report in which defendant stated that he was driving the car. The conversation included the statement of driving down the median and striking the signs. It appears that defendant, thereupon, stated that the event occurred because of the blowout of his left front tire which caused him to go up on the median. No evidence was submitted to the magistrate by the defendant.

This appeal has been beset with problems arising from the failure of counsel to make a helpful record concerning the ordinance in question. Plaintiff’s counsel did not put the ordinance into the record as a part of the case in chief. Upon defendant’s motion to dismiss there was some argument before the magistrate upon the operation of the doctrine of judicial notice, and plaintiff’s counsel ultimately handed “the bound volume” to the magistrate. Defendant made no objection to the manner or form of presenting the ordinance in evidence. The magistrate accepted the bound volume. Defendant’s counsel asked the court to reserve ruling so that he could present evidence concerning the ordinance, but at a subsequent hearing the case was concluded without evidence being presented.

The Illinois Municipal Code, chapter 24, § 1-2-6 (Ill Rev Stats 1965) provides that municipal ordinances printed in a book or pamphlet and purporting to be published by authority of the corporate authorities, shall be prima facie evidence of the contents and the passage of ordinances. Such evidence, however, may be controverted. Fish v. Walsh, 323 Ill 359, 154 NE 148.

Where evidence is introduced without objection in the trial court, objections cannot thereafter be argued on appeal. People v. Trefonas, 9 Ill2d 92, 136 NE2d 817. Upon the state of the record, it must be presumed that the magistrate receives such evidence as will authorize judicial notice of the municipal ordinance at issue under the provisions of chapter 51, § 48a (Ill Rev Stats 1965).

The problem persists upon this appeal for defendant’s counsel has failed to make the ordinance available to this court, except as fragments are quoted in his brief. It is true that chapter 51, § 48b (Ill Rev Stats 1965) provides that courts of appellate jurisdiction shall take judicial notice of such matters as courts of original jurisdiction are required to take. The doctrine of judicial notice is a part of the law of evidence which removes the necessity of detailed proof of authenticity as the official act of the corporate entity. The magic of the doctrine does not, however, produce the ordinance in this court. It should be presented in some proper way. Woods v. Village of LaGrange Park, 287 Ill App 201, 4 NE2d 764; City of Greenville v. Willman, 44 Ill App2d 156, 194 NE2d 552. In Cassidy v. Triebel, 337 Ill App 117, 85 NE2d 461, it was held sufficient to present the ordinance by means of a certified copy attached to the abstract of record. In Rosborough v. City of Moline, 30 Ill App2d 167, 174 NE2d 16, a certified copy of the ordinance was placed in evidence by stipulation.

In his original brief and argument defendant contended that plaintiff had failed to prove guilt by a clear preponderance of evidence. It has been the long established rule that proceedings for violation of an ordinance were civil in form and tried as a civil action to recover a debt. Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233; City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870. In response to questions raised during oral argument, defendant urges in his supplemental brief that the violation of an ordinance must be proven beyond a reasonable doubt. In Village of Park Forest v. Bragg, 74 Ill App2d 87, 220 NE2d 61, the court retained the concept that proceedings for violation of municipal ordinances were civil in form, but pointed out that some ordinances might provide directly for jail sentences. The Supreme Court reviewed the latter case, 38 Ill2d 225, 230 NE2d 868, but characterized the language of the Appellate Court as dictum.

The issue, as now argued, is not preserved for examination here by reason of the fact that in this court the provisions of the ordinance are not presented sufficiently to show what penalty may be imposed. We know only of a fine of $15. The issues argued upon the validity of the ordinance would not be examined at all but for plaintiff’s concession that the fragments are correct. The provisions of Supreme Court Rule 341 (e) (4) are designed to assist the reviewing court in ascertaining the precise language which is the subject of argument, but the Rule does not relieve counsel of the duty to present the ordinance to be considered in an acceptable form.

Upon the evidence in this case, the judgment can be sustained under either standard. Defendant’s argument concerning the effect of the blowout of his left front tire omits consideration of other facts before the magistrate which include the driving along and upon the median, and for several blocks, with three flat tires, and his unexplained abandonment of his damaged automobile for a period of several days.

Defendant urges that the ordinance is null and void as being in excess of the statutory power granted to municipal corporations to regulate traffic under an Act in relation to the regulation of traffic, chapter 95%, § 122 (Ill Rev Stats 1965). It is said that the ordinance purports to regulate bicycles of such Act, and excepts those vehicles propelled by human power. The Act, however, in § 121, expressly includes bicycles as subject to this provision.

The defendant quotes as part of the ordinance, the following:

“SECTION I. SPEED
“Every driver operating a vehicle on a street shall drive the same in a careful and prudent manner and at all times have the vehicle under control, and at a rate of speed that will not endanger the property of another, or the life or limb of any person.”

It is urged that the provision that one should drive “in a careful and prudent manner” makes the Act uncertain and indefinite, and hence, of dubious constitutional validity, and that such language is not contained in the Act, chapter 95%, § 146 (Ill Rev Stats 1965). It is noted that the balance of the ordinance, if one omits the questioned phrase, is substantially in the language of the referenced section. It is not necessary to indulge in lengthy interpretation of the questioned phrase, as the remainder of the ordinance sets forth provisions which are complete and capable of being executed so that it is unnecessary to hold the entire ordinance unconstitutional. The People v. Long, 297 Ill 194,130 NE 515.

The judgment of the trial court is affirmed.

Affirmed.

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


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Apple, Defendant-Appellant.
    Gen. No. 10,875.
    Fourth District.
    January 22, 1968.
    James W. Ailing, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Franklin E. Dove, Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

A jury in the circuit court of Macon County found the Defendant guilty of attempted burglary and the court sentenced the defendant to a term of not less than three nor more than ten years in the Illinois State Penitentiary. This appeal is from that conviction.

It is here contended by the defendant that the jury was not properly instructed in that an instruction defining “intent” as an element of the offense of attempted burglary was refused and that the State failed to prove ownership or right of possession of the premises involved in the attempted burglary, and that thereby a fatal defect exists in this prosecution.

The indictment in this case charged that the defendant committed the offense of attempted burglary at 722 West Wood Street in the city of Decatur, Macon County, in violation of the cited statutory provisions in that the defendant, “with intent to commit burglary, without authority, knowingly attempted to enter the apartment of Dixie Hill, • , . intending to commit a theft therein.” We shall first examine the asserted error that there was a failure to prove ownership or right to possession sufficient to sustain this conviction.

A witness, Ed Cole, testified that he was the owner of the building — the questions put to this witness and the answers in reply thereto were in the present tense. There was no interrogation of the witness with reference to ownership of the building as of the date of the offense. This witness then described the building and the location in the building of the various apartments. He then detailed the events as of the date of the offense, testifying that on that date he was installing curtain rods in an apartment in the building. While so engaged, he observed the defendant enter the back door of the building. In response to the requests of his wife, Cole investigated the defendant’s presence in the building since the witness did not recognize him as a tenant. Cole related that he caught the defendant “. . . trying to get into Apartment 2. . . . he was trying to jimmy the lock on the back door of Miss Hill’s apartment.” The defendant was described by the witness Cole and the particularities of the defendant’s efforts to enter the apartment, using a knife on the lock of the door, were described. Cole further testified that he had not given the defendant permission to enter any of the apartments.

Dixie Hill testified that she lived at the address described in the indictment and occupied apartment 2. Again, this testimony was in the present tense and it cannot be fairly said that her testimony made specific reference to her occupancy of the apartment on the date of the offense. It is the contention of the defendant that this evidence is insufficient to meet the burden of the prosecution to prove ownership or right of possession of the premises as of the date of the offense beyond a reasonable doubt and with that degree of particularity required in cases involving property offenses. The defendant relies upon People v. O’Brien, 404 Ill 236, 88 NE2d 486 (1949); People v. Walker, 7 Ill2d 158, 130 NE2d 182 (1955); ahd People v. Mosby, 25 Ill2d 400, 185 NE2d 152 (1962), and asserts that they are determinative of the issue here.

In Walker, it is stated that in a charge of burglary, the ownership of a building is an essential allegation and that the proof must conform to the charge. In the case of People v. Stewart, 23 Ill2d 161, 177 NE2d 237 (1961), the Supreme Court examined its holdings with reference to the allegations necessary as to ownership of a building entered in burglary prosecutions, the reasons for such allegations, and then stated, at 168 (177 NE2d at 241): “The premises involved are effectively identified, and the rights of the accused are fully protected by an indictment that charges the unlawful entry of a building in the possession of another.” In People v. Foster, 30 Ill2d 106, 108 (195 NE2d 700, 701 (1964)), the court said: “In burglary prosecutions, proof of lawful occupancy and possession is sufficient and it is unnecessary to either allege or prove the legal ownership of the property. (Citing case.)”

Measuring the evidence in this case as to right of possession by these pronouncements, it is established that the apartment attempted to be entered by the defendant was the apartment of another, and proof of ownership of the apartment building was unnecessary. There is, in this case, proof of occupancy and possession. Certainly, the right to possession and occupancy in another was shown as against the defendant. We take it to be settled that that is all that is required.

Finally, it is contended that the trial court erred in refusing defendant’s Instruction No. 8, which was as follows:

“The Court instructs the jury, as a matter of law, that to constitute the offense charged in this case, the intent alleged in the indictment is necessary to be shown. But such intent need not necessarily be proven by direct evidence.
“If the jury believe, beyond a reasonable doubt, that the intent charged in the indictment is shown by the facts and circumstances in evidence, that is sufficient.”

It is the contention of the defendant that he did not intend to attempt entry into the apartment, but rather that he entered the apartment building intending merely to sell cards showing that he was a deaf-mute, and that the cards were to be sold to the occupants of the various apartments in the building. It is true that the offense of attempt is defined as including intent to commit a specific offense (Ill Rev Stats 1965, c 38, § 8-4 (a)) and that the gravamen of the offense of burglary is the intent with which the building is entered. In this case, however, the court did instruct the jury that the defendant was presumed to be innocent until the State proved him guilty beyond a reasonable doubt and further instructed the jury, in the language of the statute, that a person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. Our review of the instructions, considered as a series, leads us to the conclusion that the jury was properly instructed. The unquestioned right of a defendant to have the jury instructed on his theory of the case is not in conflict with the refusal of the quoted instruction. The judgment of the circuit court of Macon County is affirmed.

Affirmed.

SMITH, P. J. and TRAPP, J., concur.


text:
    Harold R. Lambdin, as Executor of the Estate of Ethel Lambdin, Plaintiff-Appellee, v. Arthur Walter, Defendant-Appellant.
    Gen. No. 10,893.
    Fourth District.
    January 22, 1968.

      Stifler and Snyder, of Danville (Thomas C. Stifler, of counsel), for appellant.
    Summers, Watson & Kimpel, of Champaign, for appellee.
   TRAPP, J.

In this action for wrongful death, the defendant appeals from a judgment in the sum of $20,000, entered upon a jury verdict. The trial court denied defendant’s post-trial motion in the alternative for a new trial, or for a remittitur upon the verdict. No issues are raised upon the pleadings or the instructions given in the trial court.

Issues argued on appeal are, (1) whether plaintiff met the burden of proof that defendant was negligent, (2) whether the plaintiff met the burden of proof upon the issue of decedent’s due care, (3) whether the verdict in the sum of $20,000 was the result of passion and prejudice upon the part of the jury, and (4) whether such sum is excessive in view of the damages proven.

The collision at issue occurred in the forenoon of September 30, 1965, in the City of Urbana upon a highway designated as a part of Route 130, and also known as the Philo Road. Decedent, aged 73 years, was driving her Buick automobile with her daughter-in-law riding in the front seat, and her granddaughter riding in the rear seat. Defendant, aged 66, was driving in a southerly direction.

The evidence does not disclose the width of the travelled portion of the highway, but it is described as an asphalt pavement with shoulders composed of rock and dirt. The area closely adjacent to the point of the accident is built-up with residences, and the record discloses that approximately a quarter of a mile south of the point of collision, there is a public school of the City of Urbana, and roadside commercial establishments.

Philo Road proceeds in a north and south direction, but curves to the west. Upon this date there had been drizzling rain, and it is stated that there had been rain for two days preceding September 30th. The evidence discloses that at the curve there was mud or dirt upon the highway. In the record there is reference to construction work with an inference that mud was carried upon the highway. At another point, there is a suggestion that the mud had been washed across the highway. The curve was banked, but the degree thereof is not established.

The evidence discloses that decedent was driving in a northerly direction and was entirely upon her own travel lane. The only evidence of the speed of her vehicle is that it was travelling slowly. Decedent’s car was described as being clear off of the highway and on the shoulder of the northbound lane after the collision, while defendant’s automobile had spun and was partly across both lanes, apparently with its front facing northeast. The course of defendant’s vehicle as it travelled south is established essentially by the testimony of an Urbana police officer concerning his observations made at the scene of the accident within a short time after the collision.

The officer testified as to certain tire or skid marks from defendant’s car which extended from a point one and one-half feet in decedent’s traffic lane northward for a distance of 82 feet. The officer described such skid marks as being in virtually a straight line, as distinguished from marks suggesting the turning of defendant’s car to make the curve in Philo Road. The officer testified that from the northerly point where the tire marks were first observed, the vehicle travelled 50 feet upon the mud-free asphalt, and the tire marks continued 32 feet through the mud-covered asphalt, which was encompassed within the curve. The officer did, on cross-examination, describe the asphalt road as slick and the curve as slippery.

The police officer characterized the impact as a “terrific concussion” and stated that the undercarriages of both cars were damaged, as well as the wheels, so that they gouged areas in the northbound lane of asphalt. A photograph in evidence suggests that decedent’s automobile was struck behind the left front wheel and ahead of the driver’s side, and was badly bent and crushed inward.

Defendant, examined under section 60, answered “yes” to a question of whether or not he suddenly put on his brakes as he approached the curve. In testifying in his case in chief, he describes his driving as:

“. . . I turned east and I saw another car facing me and I tried to brake immediately, but the road was a lot slippery (sic) and just kept right on going and wouldn’t turn so I hit the other car.”

Defendant testified that he had been driving some 100 miles to and through Urbana under conditions of drizzling rain.

As to the issue of decedent’s freedom from contributory negligence, the record is uncontradicted that she was entirely within or upon her own travel lane and travelling at a reasonable rate of speed. We find nothing to suggest any conduct by decedent which could be considered contributory negligence and, in fact, defendant points out no evidence suggesting decedent’s negligence. The testimony of decedent’s daughter-in-law is corroborated by the testimony concerning the vehicle marks observed by the police officer.

Upon the issue of the sufficiency of the proof that defendant’s negligence was the proximate cause of the collision, it is strenuously argued that the fact that the defendant:

“. . . skidded across the center of the road is not tantamount to proving that person was negligent.”

Upon analysis this does not appear to be a precise description of the movement of defendant’s car. From the evidence it is a reasonable inference that defendant drove his automobile so that it “skidded” in essentially a straight line for nearly 80 feet, where it crossed the center of the highway as it curved, and that as it went something over a foot and one-half across the center it struck decedent’s vehicle. There is no evidence of skidding in the sense of a lateral movement across as is found in many reported opinions.

It is urged that we hold, as a matter of law, that defendant was not guilty of negligence because he says that he did not expect the wet asphalt to be slippery, and that he was not able to control his car. This we cannot do. Our courts have said, over a period of many years, that a person whose automobile is on the wrong side of the highway and out of control has a duty to explain such conduct as arising from other than his own negligence. Sughero v. Jewel Tea Co., Inc., 66 Ill App2d 353, 214 NE2d 512; Tomlinson v. Chapman, 24 Ill App2d 192, 164 NE2d 240; Murphy v. Kumler, 344 Ill App 287, 100 NE2d 660 and Calvetti v. Seipp, 37 Ill2d 596, 227 NE2d 758. In the latter case it was held that the presence of ice on the pavement is not such an explanation. We cannot say that wet asphalt is so different from ice as to change the rule. In Sughero and in Chapman the court held that it was not error to direct a verdict upon the issue of liability in favor of the plaintiff.

It is noted briefly that upon this record a wet asphalt pavement does not necessarily account for the collision. There is nothing in the record to suggest a reason why defendant suddenly applied his brakes while some 50 feet from the curve. Considering the evidence as to the physical conditions, defendant’s testimony that decedent’s automobile suddenly appeared in front of him in a position requiring a sudden braking, does not necessarily convince. While it is argued, defendant does not, in fact, say that he was going 25 miles per hour when he applied his brakes — rather, he states that he had been going 25 miles an hour apparently while in the City of Urbana, and that he had no reason to increase his speed. The evidence shows that the automobiles met violently after defendant’s skidding approach. There is nothing in the testimony suggesting a reason why the skid continued in a straight line for some 80 feet, rather than following the course of the curve after release of the brake.

In rebuttal, defendant argues that this case is controlled by the opinions in Illinois Power Co. v. Abernethy, 60 Ill App2d 214, 207 NE2d 708; Ferdinand v. Lindgren, 32 Ill App2d 133, 177 NE2d 10 and Bradley v. Madden Co., 333 Ill App 153, 76 NE2d 797. In these cases, the jury returned verdicts in favor of the defendant. The reviewing courts stated that it would not be held, as a matter of law, that the respective defendants were negligent. Such opinions cannot be transmogrified into authority requiring us to conclude that under these facts defendant, as a matter of law, was not guilty of negligence. As in those cases, the issues here were for jury determination.

Defendant argues that the facts in evidence disclose a sudden emergency so that the defendant was excused from exercising the degree of care which would be required under normal conditions. Such issue does not appear in the post-trial motion and nothing in the record suggests that this issue was presented to the trial court. In Rzeszewski v. Barth, 324 Ill App 345, 58 NE2d 269, cited by the defendant, the record showed that the conditions creating the emergency arose from the conduct of persons other than the defendant. There is no such evidence here. See also Palmer v. Poynter, 24 Ill App2d 68, 163 NE2d 851.

There has been extended argument as to whether or not there is a presumption of pecuniary loss sustained by the adult son of the decedent. Such issue does not appear in this record. There is nothing to show that this presumption was presented to the jury by means of an instruction, but if it was, the briefs and arguments concede that no objection to such instruction was made. There is no claim of a refusal of any relevant instruction tendered by the defendant upon the point. Again, this issue does not appear to have been presented to the trial court in the post-trial motion. There was, in fact, evidence supporting a claim of pecuniary loss in the sense of benefits and services to the surviving son. While decedent was 73 years of age, she had made her own living until the age of 71 years, when her enterprise was sold out. Thereafter she continued to live a busy life and was described as in good health. She had supplied substantial amounts of capital for her son’s retail pet shop, and in addition to maintaining her own household, apparently worked in the shop regularly, not only performing routine detail, but in dealing with customers, thus permitting the son to be out on other business. There is evidence that she had devised a novelty item and made it for sale, both at retail and in the son’s shop, and for sale by other retailers. There is evidence that decedent was generous with her time in caring for the son’s children to the degree that the son’s wife had been regularly employed. It was stipulated that her life expectancy was 12% years.

The evidence supports the conclusion that decedent’s son was receiving benefits of pecuniary value in terms of aid and services. While these were not established upon a cost accounting basis, it does not appear that such requirement has ever been called for by our courts. The pecuniary addition to her estate that decedent would have made but for her death is not the sole basis for determining the pecuniary damage suffered by the next of kin. Barrow v. Lence, 17 Ill App2d 527, 151 NE2d 120.

Courts of Review agree that the award of damages to next of kin under the Injuries Act is not a subject of mathematical formula, but is a matter for jury determination. Such determination will be sustained upon review unless the record discloses that the jury’s award was reached because of passion or prejudice, or through having heard and considered improper elements of damage. The record here discloses nothing of a prejudicial character in this trial. Illinois Power Co. v. Abernethy, 60 Ill App2d 214, 207 NE2d 708. In argument defendant concludes that the verdict was the result of passion and prejudice because of its amount. The award fixed by the jury was reviewed by the trial court upon the post-trial motion. This court cannot say, as a matter of law, that the judgment award is so unreasonable that it must be concluded that the jury acted from passion and prejudice.

The judgment of the trial court is affirmed.

Affirmed.

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