author: MR. PRESIDING JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Greenberg, Defendant-Appellant.
    Gen. No. 51,011.
    First District, Second Division.
    January 17, 1967.

      Gordon & Brustin, of Chicago (Robert E. Gordon, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for driving a motor vehicle while under the influence of intoxicating liquor. Defendant was fined $100.

At the trial, Officer Morris DeMers of the Chicago Police Department testified that on October 20, 1964, at about 11:45 p. m., he and his partner Officer Leahy, observed defendant, Henry Greenberg, as he pulled from a parking space and headed west on Surf Street in Chicago; that they followed him; that he turned north on Clark Street; that they clocked him for approximately three to four blocks at a speed of 40 m. p. h. in a 25 m. p. h. zone; that defendant was curbed with the aid of the siren and spotlight on the squad car; that he identified himself by showing his badge and identification card; that he asked defendant to step out and produce his driver’s license, which defendant produced; that he detected a strong odor of alcohol on defendant’s breath; that they spoke for about five minutes; that defendant said he had had a couple of beers; that he told defendant that he felt defendant was unable to drive and placed him in the back seat of the squad car; that Officer Leahy drove the squad car and he led the way in defendant’s auto; that after traveling a few blocks, he observed, in the rear view mirror, that defendant was struggling with Officer Leahy in the squad car; that he saw defendant jump out and run; that he stopped, pursued and caught defendant; that a fight ensued; and that a sap was used to subdue defendant.

Officer DeMers further testified that at the police station defendant refused medical treatment for a bruise on his head; that defendant also refused to submit to a breathalyzer examination; that defendant called his brother-in-law, an attorney; that he (Officer DeMers) made a report of his findings as to certain tests and questions; and that defendant stated that he had drunk a couple of beers and had taken a tranquilizer during the evening. Officer DeMers also stated that he had been a police officer for five years and had made approximately 40 arrests for intoxication; that during his lifetime he had observed thousands of people whom he believed to be under the influence of alcohol; and that based on his experience and his observations and conversation with defendant, he was of the opinion that defendant was under the influence of alcohol at the time of his arrest.

Evidence was introduced that defendant’s breath was still strong with alcohol after arriving at the police station ; that his face was pale and his clothing mussed; that his attitude was hilarious at times and antagonistic at other times; that his eyes were bloodshot and pupils dilated ; that his balance was unsure and his walk weaving; that on the finger to nose test, he was uncertain with either hand; that in picking up coins he was slow; and that his speech was slurred.

Dr. Bernard H. Adelson testified for the defense and stated that he worked at the same hospital where defendant was employed; that defendant had been a patient of his for about one year; that he examined defendant on October 22, 1964, and found defendant had suffered a cerebral concussion; and that it was possible for the symptoms of a cerebral concussion and intoxication to be confused. On cross-examination, he admitted that he had no way of determining the cause of the trauma, or that defendant had consumed an alcoholic beverage prior to the injury.

Mr. Joseph Astrachan, an attorney and brother-in-law of defendant, testified that defendant telephoned him and asked him to come to the police station; that upon his arrival, he spoke to defendant who admitted having a beer; that it was his opinion defendant was not under the influence of intoxicating liquor when he saw him at about 2:00 or 2:30 in the morning of October 21, 1964; that he posted bond for defendant and he was released; and that he and his wife (defendant’s sister) drove him home.

Defendant testified that on October 20, 1964, he was a registered pharmacist at Evanston Hospital; that at about 9:30 p. m., he arrived at a girl friend’s apartment for a social visit; that at approximately 10:30 p. m. he had had one beer; that he left the apartment at about 11:15 p. m. feeling no effects of the beer he had consumed; that at approximately 11:30 p. m. he was stopped for speeding by an unmarked police vehicle containing two plainclothes police officers; that as soon as he observed this vehicle flagging him down, he pulled his motor vehicle to the curb; that the officer did not display any identification card, but did show a badge; that one of the officers drove his (defendant’s) car while the other officer drove the squad car; that while riding in the back seat he became afraid and was under the impression that the men were not police officers and jumped out of the car when it stopped at a corner; that the officer driving defendant’s car pursued and caught him and struck him over the head; and that he was unconscious until taken to the police station, where he complained of a headache.

On cross-examination, he stated that he did not know how he got to Clark Street or how long he drove before being stopped; that upon being taken home by his sister and brother-in-law after leaving the police station, he set the alarm for 8 o’clock, intending to go to work; that he awoke at 8:00 a. m., had a headache and called Dr. Adelson; that he arrived at the hospital about 10 or 10:30 a. m. and was admitted by an intern; that he had taken a tranquilizer at about 10 o’clock and a beer at about 10:30 p.m. on the evening in question; that the tranquilizers had not been prescribed by Dr. Adelson but by a Dr. Schultz; that he did not use them regularly; that he had read “that tranquilizers will potentiate the effects of alcohol” and that he was released from the hospital on October 23, 1964.

It is defendant’s theory of the case that the State failed to establish his guilt beyond a reasonable doubt. We disagree with defendant’s contention.

The court in People v. Leiby, 346 Ill App 550, 105 NE2d 776 (1952) quoting from Osborn v. Leuffgen, 381 Ill 295, 45 NE2d 622 (1942) said at pages 298-299:

“. . . Beer is an alcoholic liquor, and it is a matter of general knowledge that all. alcoholic liquors are intoxicating in varying degrees. It is well known that the effect of alcohol upon all persons is not the same but may be widely different, and that an individual who has had only a slight amount of drink may in some instances be more dangerous than a person who shows signs of intoxication. The Supreme Court of Pennsylvania has said in the case of Elkin v. Buschner, 16 Atl 102: Whenever a man is under the influence of liquor so as not to be entirely himself, he is intoxicated. Although he can walk straight, attend to his business, and may not give any outward and visible signs to the casual observer that he is drunk, yet if he is under the influence of liquor so as not to be himself, so as to be excited from it, and not to possess that clearness of intellect and control of himself that he otherwise would have, he is intoxicated.’ ”

In the instant ease, the evidence clearly shows that defendant by his own admission had at least one beer, that his breath had a strong odor of alcohol and that he was speeding at the time of his arrest. This evidence, coupled with defendant’s subsequent attempted escape, his staggering, his acting alternatively in a hilarious and antagonistic manner, and his appearance, was sufficient for the trial court to find that he was, at the time of his arrest, driving his automobile while under the influence of alcohol.

In People v. Raddle, 39 Ill App2d 265, 188 NE2d 101 (1963), the defendant was arrested for speeding. The officer detected the odor of alcohol on defendant’s breath. The defendant walked in a swaying manner, his speech was slurred, and his attitude was insulting. The officer testified that the defendant was under the influence of alcohol. His opinion was based upon the above facts, his observation of the defendant at the police station, and his experience as a police officer. In that case, the defendant admitted having one beer about 8 or 9 hours prior to his arrest, denied that he was speeding, and offered the testimony of a witness who stated that the defendant had nothing to drink that day and that she had not smelled any liquor on his breath. The court stated:

“The police officer’s testimony taken by itself was sufficient to prove guilt beyond a reasonable doubt, and the only basis, therefore, for defendant’s contention is that a doubt was raised by the testimony of the defendant and his friend. This simply presents the question of the credibility of the witnesses’ testimony and, as stated very recently in People v. Cool, 26 Ill2d 255 at 258:
“ ‘Where the guilt or innocence of the defendant depends upon the credibility of conflicting testimony, the finding of the trial court will not be disturbed.’ ”

In the instant case, it is clear that the trial judge was in the best position to judge the credibility of the witnesses and there is no basis for the defendant’s contention that the testimony of defendant’s witnesses should be believed over that of the State’s witnesses.

Furthermore, the court in People v. Solomonson, 54 Ill App2d 211, 203 NE2d 729 (1964), stated in discussing the possibility that a blow to the defendant’s head could have caused the same results as intoxication, that even if it were assumed that every observation under the tests were consonant with some cause other than intoxication, nevertheless, the strong odor of liquor on defendant’s breath, the defendant’s admission of drinking, and the circumstances surrounding the event were certainly sufficient grounds on which the police officer could have based his opinion. In the instant case, we find there was sufficient evidence for the trial court to find that defendant was driving under the influence of intoxicating liquor.

For the above reasons the judgment is affirmed.

Judgment affirmed.

BURKE and BRYANT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BRYANT.

license: Public Domain

text:
    Dorothy Bridson, Plaintiff-Appellant, v. Maywood Cab Co., Inc., Defendant-Appellee.
    Gen. No. 51,592.
    First District, Second Division.
    January 17, 1967.
    George Yellen, of Chicago, for appellant; no appearance made for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


text:
    Jose Pepin, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, et al., Defendants-Appellants.
    Gen. No. 51,453.
    First District, Second Division.
    January 17, 1967.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellants.
    Henry H. Levin, of Chicago (Harry G. Fins, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal by defendants from a temporary injunction order, enjoining defendants from demolishing plaintiff’s building pursuant to an order of demolition entered in another court of concurrent jurisdiction, and from an order denying defendants’ petition to vacate the aforesaid order for a temporary injunction.

On January 4, 1966, the City of Chicago filed a complaint, case number 66 CH 46, against Elizabeth Trautman, John Trautman, and Unknown Owners, for demolition of the structure located at 1916 West Ohio Street, Chicago, Illinois. On February 4, 1966, Jose Pepin intervened in the demolition action alleging that he was the owner of the subject property. The action for demolition proceeded before Judge Alvin Kvistad of the Municipal Department of the Circuit Court of Cook County. Judge Kvistad continued the case on various occasions to allow Pepin an opportunity to rehabilitate the property. We do not have the record of the proceedings in case number 66 CH 46. Therefore, we do not know on what dates the various orders were entered by Judge Kvistad. The parties to this appeal have in their statement of facts alluded to the fact that the court (Honorable Alvin Kvistad presiding), ordered demolition on April 15, 1966, and that the order of demolition was entered of record on June 1, 1966. Other facts pertaining to 66 CH 46 are likewise considered by this court only because the parties to this appeal have alluded to them in their statement of facts.

On April 4, 1966, during the pendency of the demolition action before Judge Kvistad, Pepin filed a complaint, case number 66 CH 1931, for an injunction to restrain the City of Chicago, the Mayor, the Commissioner of Buildings, the City Collector, the Superintendent of Streets, and the Superintendent of Police from interfering with the repair and rehabilitation of the building located at 1916 West Ohio Street, Chicago. This case was assigned to Judge Daniel A. Covelli of the County Department of the Circuit Court of Cook County. Pepin alleged, in his complaint, that on February 14, 1966, he was issued a Building Permit for the purpose of repairing the subject property. This permit was entered into evidence in the prior demolition action.

On April 19, 1966, four days after the court (Honorable Alvin Kvistad presiding) ordered the demolition in case number 66 CH 46, Pepin filed a petition for a temporary injunction in case number 66 CH 1931 to restrain the defendants from demolishing the subject property. On the same day the court (Honorable Daniel Covelli presiding) entered an order in case number 66 CH 1931 for a temporary injunction restraining the defendants from carrying out the order of April 15, 1966, in case 66 CH 46.

It is defendants’ theory of the case (1) that the court first obtaining jurisdiction of a matter retains it to the exclusion of other courts of concurrent jurisdiction, and (2) that one judge of the Circuit Court of Cook County has no authority to review cases decided by another judge of the same court.

It is plaintiff’s theory of the case (1) that the appeal of the defendants (other than the City of Chicago) be dismissed, as their notice of appeal was not filed within the required 30 days, and (2) that the demolition decree entered of record on June 1, 1966, was barred under the doctrine of res judicata by the decree for a temporary injunction entered (Honorable Daniel Covelli presiding) on April 19, 1966.

At the outset, we do not agree with plaintiff that the appeal be dismissed as to all the parties other than the City of Chicago because of their failure to file a notice of appeal within the required time. Unlike the circumstances in the cases cited by plaintiff, this case does not involve the principle “that each litigant acts for himself and not for his co-parties.” Here, the aforementioned City officials are not individual litigants. They have no interest in this matter apart from the interest of the City of Chicago. It is the City that seeks to demolish the subject property. In carrying out the demolition decree the various officials would simply be acting as the City’s officers or agents.

Plaintiff’s second contention is, in essence, that entry of a temporary injunction on April 19, 1966, made the demolition decree filed and entered on June 1, 1966, invalid by the doctrine of res judicata. We are asked to decide whether a court first obtaining jurisdiction of a controversy retains it to the exclusion of another court of concurrent jurisdiction or whether a second court assuming jurisdiction and entering a decree prevents the entry of a decree in the first court when the elements of res judicata are evident. We hold that once the court in which the demolition order was entered took jurisdiction of the subject matter, it retained it to the exclusion of another court of concurrent jurisdiction. Hudson v. Mandabach, 22 Ill App2d 296, 160 NE2d 715 (1959); People ex rel. Kagy v. Seidel, 22 Ill App2d 316, 160 NE2d 681 (1959); Shilvock v. Shilvock, 31 Ill App2d 254, 175 NE2d 272 (1961); In re Estate of Curley, 43 Ill App2d 389, 193 NE2d 607 (1963); and Trojan Fireworks Corp. v. Acme Specialties Corp., 66 Ill App2d 108, 213 NE2d 44 (1965).

Furthermore, at the time the orders were entered, the General Orders of the Circuit Court of Cook County make it abundantly clear, that in a matter such as an action to demolish a building, the Municipal Department and the Chancery Division of the County Department have concurrent jurisdiction. The General Orders of the Circuit Court of Cook County, Organization, 1-2. Operation; 2.2. Municipal Department; (b) Civil Actions Heard, state:

. . . Concurrently with the Chancery Division of the County Department, the Municipal Department hears proceedings in chancery to enforce ordinances of a municipal corporation situated wholly or in part within the district.

This provision does not mean, however, that the Chancery Division of the County Department has powers superior to the Municipal Department, in respect to demolition actions filed in said Municipal Department pursuant to section 39-12 of the Municipal Code of Chicago. To sanction superior authority in the Chancery Division of the County Department over demolition actions filed in the Municipal Department would create havoc within the Circuit Court. Litigation could be tied up perpetually by a series of complaints and petitions, each seeking to prohibit a litigant from carrying out the order of another judge.

For the above reasons the temporary injunction order is reversed as to all defendants.

Judgment reversed.

BURKE and BRYANT, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Frank Fahrforth, Jr., by Frank Fahrforth, Sr., etc., Plaintiff and Counter-Defendant, Appellees, v. Leo Kwiatkowski, Defendant and Counter-Plaintiff, Appellant.
    Gen. No. 50,762.
    First District, Third Division.
    January 19, 1967.

      Morton H. Meyer, Michael A. Gerrard and Edward Zahour, of Chicago (Morton H. Meyer, Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellant.
    Alan E. Morrill and Robert A. Sprecher, of Chicago (Morrill & Koutsky, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This involves an automobile accident which occurred on June 5, 1957, on the Southwest Highway in Chicago Ridge, Illinois. Both plaintiff’s and defendant’s cars were travelling in a northeasterly direction. The only occurrence witnesses were the defendant and the plaintiff’s decedent, who died subsequent to the accident from unrelated causes. Because of plaintiff’s decedent’s death the defendant was not permitted to testify to facts concerning the occurrence. The case was presented on circumstantial evidence and the inferences to be drawn therefrom.

The defendant filed a counterclaim against the plaintiff. The case was tried before a jury and the jury found in favor of the plaintiff, and assessed damages in the sum of $8,100, and also found against the counter-plaintiff and in favor of the counterdefendant. Judgment was thereafter entered on the verdict.

It is the theory of the defendant that when circumstantial evidence is equally susceptible of opposite inferences, one consistent with liability and one inconsistent, neither conclusion is proved and the plaintiff, who had the burden of proof on this issue, has not sustained it and a verdict in his favor must be set aside.

The defendant’s second contention is that although he introduced into evidence motion pictures which were projected and exhibited to the jury, the court refused to permit the films and projector to be taken into the jury room, and this constituted error.

Steven Horvath testified that he was a police officer for the Village of Chicago Ridge at the time of the accident and that he arrived at the scene in a police car at 12:45 a. m. on June 5, 1957. The pavement was dry and the debris from the accident indicated that the impact between the two cars took place on the far left of the lefthand lane, meaning the lane that proceeds in a northeasterly direction. Horvath testified that the debris was collected in the left side or the inside lane. The skid marks of the defendant’s vehicle measured 130 feet prior to the impact. Both vehicles had been travelling in a northeasterly direction. After the impact the defendant’s vehicle travelled 52 feet, crossing the two lanes of southwesterly traffic and hitting the opposite side of the bridge. The plaintiff’s car travelled 20 feet after the impact, struck and went through the guardrail protecting the northeasterly lanes and rolled over for 85 feet. The plaintiff’s car tore out 20 feet of guardrail and the defendant’s car tore out 10 feet of guardrail. Horvath also testified that the plaintiff’s car after striking the guardrail continued on and that he could not say at what distance from that point it was that the automobile tipped over again and rolled over. He didn’t remember if he found the car on its side or roof.

Stanley Wing, also a police officer of the Chicago Ridge Police Department, testified that he participated in the investigation of this accident. His testimony was substantially the same as that of Horvath.

Cushman Jordan, Jr. testified on behalf of plaintiff that he had ridden with Frank Fahrforth, Jr., and in his opinion he was a very careful driver. He also stated that the Fahrforth car was in good operating condition in June, 1957.

John F. Peicle, one witness called by the defendant, testified that there was damage to the left rear side of the Mercury (plaintiff’s car) and that the only damage to the Plymouth (defendant’s car) was to the front.

It was argued first that the circumstantial evidence introduced by the plaintiff was just as consistent with liability as with nonliability and therefore plaintiff failed to sustain his burden of proof. It is true that the happening of an accident, of itself, does not raise any presumption of negligence on the part of the defendant. Rotche v. Buick Motor Co., 358 Ill 507, 193 NE 529.

It is argued by the defendant that the testimony of the police officers showed that both the plaintiff and the defendant were travelling in the same direction and that the impact took place in the Iefthand northeast bound lane of the Southwest Highway; that although there were 130 feet of skid marks made by defendant’s car prior to its impact with plaintiff’s car, and although the damage to plaintiff’s vehicle was on the left rear side, and although after the impact the plaintiff’s car travelled 20 feet, tore out 20 feet of guardrail and continued to roll over for an additional 85 feet, that one reasonable explanation for the accident cannot be inferred from the evidence. The gist of this argument is that the testimony of damage to the plaintiff’s car relates to the left rear side, and the defendant argues that the plaintiff must have been crossing over from the outside to the inside lane of north bound travel in order for plaintiff’s c&r to have been struck on the left rear side. Plaintiff’s Exhibit 4 shows the rear end and a portion of the left side of plaintiff’s automobile. The trunk is partially open and indents appear to the left of center on the rear of the trunk cover. The side of the left rear fender bulges out over the left rear wheel, from which the inference could be drawn that the rear bumper of the plaintiff’s car had been pushed into the left rear fender, causing it to bulge out and away from the car. In addition, the rear end of the left rear fender, which extends above the taillight, is shown to have been pushed in from the rear. The defendant in support of his contention cites Coulson v. Discerns, 329 Ill App 28, 66 NE2d 728, and Pure Torpedo Corp. v. Nation, 327 Ill App 28, 63 NE2d 600. In Pure Torpedo Corp., supra, the court at page 39 said:

“A fact cannot reasonably be inferred from evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with equal certainty. A fact cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them.”

We do not feel that the rule laid down in either Coulson or Pure Torpedo Corp., supra, applies to the instant case. The evidence indicates that the plaintiff was struck from behind after the defendant had applied his brakes and his car had skidded 130 feet before catching and striking the plaintiff’s car. There was no evidence offered by either the plaintiff or the defendant to indicate the speed at which the car was travelling which skidded 130 feet. However, such evidence would be of little value in a case such as this, because the impact with plaintiff’s car did not even stop the defendant’s car, which continued on for 52 feet crossing the two lanes of southeasterly traffic and tore out 10 feet of guardrail before coming to rest.

In Young v. Patrick, 823 Ill 200, 153 NE 623, a case where there were no eyewitnesses to the accident, the court said on page 203:

“We are of the opinion, also, that the court erred in taking the case from the jury. While there is no testimony of eye-witnesses who could testify as to the speed of the car, there is evidence in the record showing the fact that the car skidded forty feet on the pavement with the wheels locked, and the jury had a right to consider that fact on the issue raised by the charge that the speed of the car was excessive.”

The plaintiff argues that the brakes of defendant’s car were defective. This argument is based upon the testimony of the police officer, Steven Horvath, who testified in part as follows:

“I also observed the distance that the cars traveled after the impact and also prior to impact. I determined this by measuring from the point of impact back over the visible skid marks and this is some 130 feet of skid marks in which I noted was on the left side only.”

The plaintiff construes the testimony “in which I noted was on the left side only,” to mean that only the left brake of defendant’s car was operating. We cannot say that testimony indicates that only the left brake or brakes were operating and that the officer was not referring to the left side of the northbound traffic lanes.

Due care need not be established by direct and positive testimony but may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision. In Devine v. Delano, 272 Ill 166, 179, Ill NE 742, the court said: “There was no eyewitness to the accident, and hence the question whether deceased was knocked off by the post depends upon the inferences to be drawn from the testimony. Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.”

In ILP, Evidence, § 342, the following is stated:

“A greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that is required to establish controverted facts by circumstantial evidence. However, a theory cannot be said to be established by circumstantial evidence unless the facts are of such a nature and so related as to make it the only conclusion that could reasonably be drawn, since it cannot be said that one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty. Where circumstantial evidence is used to establish a material fact, the proof must be based on something more than mere guess, conjecture, or surmise.”

We do not believe that the circumstantial evidence in this case is equally susceptible of opposite inferences, that is, one consistent with liability and one inconsistent. We believe that the evidence offered in this case is susceptible only of an inference of liability. We hold, therefore, that the plaintiff in the trial court proved his case by a preponderance of the evidence and we cannot say here that the verdict of the jury and the judgment entered thereon is contrary to the manifest weight of the evidence.

The defendant next contends that the court erred in refusing to permit motion picture films of the vehicles of both parties to be sent into the jury room while permitting the still pictures introduced into evidence by the plaintiff to go to the jury room. The motion pictures were displayed to the jury in the courtroom without any foundation having been laid by the defendant. The plaintiff contends that the motion pictures were shown to the jury in the courtroom over his objection, and that his objection should have been sustained for failure to lay a proper foundation. We think it is unnecessary to discuss here the plaintiff’s contention as to the admissibility of the motion pictures in evidence, as we do not feel that the defendant’s contention is well taken. The motion pictures which were admitted into evidence consist of a few feet of 8-millimeter film in two pieces. The film was projected onto a screen and the jury was permitted to observe the pictures in the courtroom during the trial.

Section 67 (4) of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 67 (4)), reads as follows:

“Papers read or received in evidence other than depositions, may be carried from the bar by the jury.’’

Considerable discretion is given to the trial court as to what exhibits may and may not be taken by the jury into the jury room. In Mokrzycki v. Olson Rug Co., 28 Ill App2d 117, 170 NE2d 635, the court said on page 125:

“What exhibits may be taken by the jury on retiring to consider their verdict rests largely in the discretion of the trial court.”

In Gertz v. Bass, 59 Ill App2d 180, 208 NE2d 113, the court considered the propriety of taking a dictionary into the jury room, and in that case stated that it was reasonable to infer from the fact that the jury specifically requested the dictionary, that they made use of the volume in determining the meaning of the crucial terms and were influenced thereby to the prejudice of the plaintiff.

The defendant cites the case of Grand Lodge A. O. U. W. v. Young, 123 Ill App 628, wherein the trial court refused to permit the jury to take into the jury room a magnifying glass which had been used by the witnesses in examining exhibits. The court there held that the request made by the jury was proper and should have been granted by the court; however, in that case the witnesses had testified to erasures of certain words and figures, and the writing over such erasures in different ink from that used in the body of the receipts and that the outline of portions of certain words and figures so erased, not visible to the naked eye, was discernible with the aid of a magnifying glass. We can readily distinguish the Grand Lodge case from the case before us. The jury had the benefit of seeing the motion pictures in this case while in the magnifying glass case the jury would have been unable with the naked eye to determine whether the testimony of the witnesses, who testified to erasures and the writing over in different ink, was accurate, nor could they weigh the evidence of the witnesses in arriving at a conclusion without the use of the magnifying glass. The jury in that case had not examined the documents with a magnifying glass during the trial as had the witnesses. However, in the case before us the jury had the benefit of the motion pictures shown on a screen before it during the trial. We do not believe, as defendant argues, that he was deprived of a crucial part of his defense by the court’s denial or refusal to permit the motion picture projector, which was not offered nor admitted into evidence, together with the film which was admitted in evidence, to be taken to the jury room. It is argued by the defendant that the still pictures offered by the plaintiff and admitted in evidence were contradicted by the motion pictures, but there is nothing before us to show this. As mentioned before, the motion picture film consists of a few feet of 8-millimeter film which is broken and is in two parts. We are in no position to view this film as this court does not possess an 8-millimeter projector. The fact, however, remains that the jury, who did have the benefit of the film shown on a screen, concluded that it did not help the defendant factually.

We are of the opinion that the refusal by the court to permit the jury to take with it to the jury room the motion picture film, which had been displayed to it during the trial, was not an abuse of discretion. For the foregoing reasons the judgment of the court is affirmed.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dean Wolfson, Defendant-Appellant.
    Gen. No. 51,552.
    First District, Second Division.
    November 22, 1966.
    Harry J. Busch and Jacob Shamberg, of Chicago (Warren D. Wolfson, of counsel), for appellant; William G. Clark, Attorney General of the State of Illinois, of Springfield (Fred G. Leach, Assistant Attorney General, of Springfield, Daniel P. Ward, State’s Attorney of Cook County, of Chicago, and Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    Harry R. Booth, Plaintiff-Appellant, v. Metropolitan Sanitary District of Greater Chicago; Material Service Corporation, a Corporation; Marblehead Lime Company, a Corporation; American Oil Company, a Corporation; Arcole-Midwest Corporation, a Corporation; Ceco Steel Products Corporation, a Corporation; Cory Corporation, a Corporation; R. P. Donohoe Co., Inc., a Corporation; Hannah Inland Waterways Corporation, a Corporation; Lemont Manufacturing Corporation, a Corporation; National Boulevard Bank of Chicago, as Trustee; Publicker Chemical Corporation, a Corporation; Reclamation Construction Corporation, a Corporation; Tim, Inc., a Corporation; Tower Cabana Club, Inc., a Corporation; Union Tank Car Company, a Corporation; Frank W. Chesrow, et al., Defendants-Appellees.
    Gen. No. 50,062.
    First District, Second Division.
    January 24, 1967.
    Rehearing denied April 5, 1967.

      Harry R. Booth, pro se, of Chicago (Sheldon L. Baskin, of counsel), for appellant.
    George A. Lane, of Chicago (Fred Herzog, of counsel), for Metropolitan Sanitary District of Greater Chicago and Frank W. Chesrow, appellees.
    Sidney Baker, of Chicago (Fred Herzog, of counsel), for George A. Lane and Joseph Rubens, appellees.
    Fred Herzog, of Chicago, for Metropolitan Sanitary District of Greater Chicago, Frank W. Chesrow, George A. Lane and Joseph Rubens, appellees.

      Albert E. Jenner, Jr., Kenneth J. Burns, Jr., Keith F. Bode and Eugene T. Noonan, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for Arcole Midwest Corporation, Nathan Bederman, Ceco Steel Products Corp., Lemont Mfg. Corp., Material Service Corp., Marble-head Lime Company, Tower Cabana Club, Inc., R. P. Donohoe Co., Inc. and Reclamation Construction Corp., appellees.
    Thomas F. Scully, of Chicago (Kirkland, Ellis, Hodson, Chaffetz & Masters, of counsel), for American Oil Company, appellee.
    Edwin A. Rothschild and Richard Harris, of Chicago (Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of counsel), for Cory Corporation, appellee.
    Lee A. Freeman, of Chicago, for Publicker Chemical Corp., appellee.
    McConnell, Curtis and McConnell, of Chicago, for Union Tank Car Company, appellee.
    Brundage & Short, of Chicago, for Hannah Inland Waterways Corp., appellee.
    Joseph I. Bulger, of Chicago, for National Boulevard Bank of Chicago, Trust No. 478, appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from the dismissal of an amended complaint filed by plaintiff, pro se, as a taxpayer. The grounds for dismissal were (1) that plaintiff lacked capacity to sue and (2) that there was multifariousness in the cause of action.

Plaintiff filed a voluminous complaint, which was later amended. The gist and gravamen of the amended complaint alleges that plaintiff is a taxpayer and resident of the City of Chicago, County of Cook, State of Illinois; that the action is brought on behalf of all taxpayers within the above area; that the Metropolitan Sanitary District revenues are provided primarily by taxes; that the district also receives revenues from the sale of sludge and spoil bank and rentals from land leased; that rentals received defray taxes, which in turn lowers taxes upon property of owners in the area; that rentals from certain leases, entered into during 1963 and the five years prior thereto, were inadequate; that the above inadequate rentals result from a fraudulent conspiracy among the district, certain of its officials and the lessees; that, but for this conspiracy, taxes would be reduced by one and a half million to two and a half million dollars annually; that irreparable injury to plaintiff has occurred and will continue to occur; that the real estate department of the district has annual expenses of at least One Hundred Thousand Dollars ($100,000) as a result of these leases; and that these expenses are not reimbursed by the lessees.

Plaintiff in his prayer asks (1) for a declaration that the leases are void; (2) that an accounting take place with respect to all leases; (3) that an order be entered requiring lessee defendants to pay adequate rental; and (4) that an injunction be entered against the collection of the aforesaid illegal taxes.

Motions to dismiss the complaint were filed by the various defendants and sustained by the court on April 25, 1964. Subsequently, the plaintiff filed an amended complaint on May 3, 1964. Thereafter, motions to dismiss the amended complaint were filed by the various defendants. A motion for a change of venue was filed on June 10, 1964, by plaintiff. On June 12, 1964, the court entered an order denying plaintiff’s motion for a change of venue and continued oral argument to June 17, 1964. On June 18, 1964, the court entered its final order and decree dismissing the amended complaint. This appeal is, in substance, from the above two orders entered by the lower court.

It is plaintiff’s theory of the case (1) that the change of venue should have been granted; (2) that he has standing to bring this suit in that a taxpayer can obtain relief for losses suffered by the district taxpayers as a result of the expenditures unlawfully and fraudulently made; (3) that there is no multifariousness in the cause of action; and (4) that the amended complaint states a cause of action.

Defendants’ theory of the case is (1) that the denial of the change of venue was proper; (2) that plaintiff lacks capacity to sue in that plaintiff has not suffered special damages; (3) that there is multifariousness in the cause of action; and (4) that the amended complaint fails to state a cause of action.

At the outset, we agree with defendants that the denial of the motion for a change of venue was proper. The statutes authorize a change of venue in all civil cases. An application for change of venue, however, must be made at the earliest practicable moment. An application made after a hearing begins is not timely, particularly after the trial judge has made several rulings adverse to the party seeking the change. Tidwell v. Smith, 57 Ill App2d 271, 273, 205 NE2d 484 (1965); Swanson v. Randall, 30 Ill2d 194, 198, 195 NE2d 656 (1964). In the instant case the motion for the change of venue was not timely in that considerable argument had taken place in respect to the defendants’ motions to dismiss and the court had in fact dismissed plaintiff’s complaint. The chancellor did not abuse his discretion in denying plaintiff’s motion for a change of venue.

In response to plaintiff’s second contention that he has standing to sue, defendants argue that the case of Koehler v. Century of Progress, 354 Ill 347, 188 NE 445 (1933) disposes of the problem. In that case a taxpayer filed a suit, seeking an injuction against “A Century of Progress,” a corporation, and the South Park Commissioners, a municipal corporation, for the purpose of restraining the former from operating an exposition on the public grounds under the jurisdiction of the South Park Commissioners and restraining the latter from consenting to such use of public property. The bill alleged that the ordinance of the South Park Commissioners, which was authorized by an act of the Illinois Legislature and which granted to the aforementioned private corporation the use of public property without any compensation, was illegal. The bill also averred that such use of public property without compensation by the private user amounted to a diversion of public funds and that in consequence thereof the complainant and other taxpayers would be specially and irreparably damaged to the extent of the additional taxes they would be compelled to pay. The Supreme Court affirmed the decree of the trial court sustaining a demurrer to the bill and dismissing it for want of equity and declared:

Without considering further the inconsistencies existing in the bill and the various prayers for relief, the fundamental question of appellant’s right, as a taxpayer, to bring this suit is of first importance in this case. The lands involved here and which are described in the bill are held in trust by the South Park Commissioners for the use of such lands by the public. An obstruction or misuse of public property which does not result in special injury to the individual cannot be complained of except by the people. To entitle a tax-payer to maintain a bill to enjoin a breach of public trust, he must, in the absence of statutory authority conferring such right, show that he is specially injured thereby. An individual has no standing in equity on account of an injury to the public by the mis-use of property held in trust for the public. He is entitled to invoke equitable jurisdiction only to protect his property from threatened injury, and unless it is shown that he will suffer special damage, different in degree and kind from that suffered by the public at large, he will not be heard to complain of mis-use of public property. Carstens v. City of Wood River, 344 Ill 319; McCormick v. Chicago Yacht Club, 331 id. 514; McPike v. Illinois Terminal Railroad Co., 305 id. 298; Hill v. St. Louis and Northeastern Railway Co., 243 id. 344.
. . . the bill alleges that the contract should require payment to the South Park Commissioners of a large sum of money, and that, because this was not done, the appellant and other tax-payers similarly situated suffer in the matter of taxation. Though this point seems not to be particularly stressed in the briefs it is clear that such allegations in the bill do not show special injury to appellant.

The case of Droste v. Kerner, 34 Ill2d 495, 217 NE2d 73 (1966) reiterates the principle enunciated in Koehler as to the misuse of public property. In Droste the legislature enacted legislation allowing 194.6 acres of land submerged beneath the waters of Lake Michigan, to be granted, quit-claimed, and conveyed in fee to the United States Steel Corporation, with the proviso that the grant was to become effective (1) when the corporation paid $19,460 to the State Treasurer, and (2) when the Chicago Park District had conveyed all of its right, title and interest in the submerged lands to the State of Illinois. Plaintiff, Droste, instituted two separate taxpayer actions to enjoin the sale. One action was purportedly brought under authority derived from the Public Moneys Act, which permits a taxpayer to initiate an action to enjoin the disbursement of public funds and public moneys by State officials. The second action alleged the constitutional invalidity of the legislation authorizing the conveyance. The court held that a taxpayer has no standing in equity to enjoin an alleged misuse of public property in that he must show special damage, different in degree and kind, from that suffered by the public at large. We feel that the above two cases are dispositive of the instant situation.

Plaintiff contends, however, that despite the above decisions, he does not have to allege or prove any special damages. Plaintiff’s contention is based on his argument that the instant case is distinguishable from Koehler and/or Droste. Plaintiff first argues that only general allegations of wrongdoing were asserted in Koehler, whereas allegations of fraud were alleged in the present action. An examination of Koehler reveals that the allegations of wrongdoing raised in that case were sufficient to raise the issue of fraud.

Plaintiff next argues that the instant situation involves gross inadequacy of rentals, whereas in the Koehler case, the inadequacy of the rentals was not argued seriously. An examination of Koehler reveals that this argument was presented to the court. The court specifically stated that Mrs. Koehler did not have standing to attack leases of public property on the grounds that the rentals were inadequate.

Plaintiff also argues that the cases cited in Koehler related solely to the obstruction and physical misuse of public property and not the misuse of public funds. Again, an examination of Koehler reveals that the court, after reviewing these cases, decided both that a taxpayer has no standing to attack leases of public property on the grounds they are a misuse of property and also that a taxpayer as such has no standing to attack the validity of leases of public property on the grounds that the rentals were inadequate.

Plaintiff next argues that in both Koehler and Droste only one parcel of property was involved, that the disposition was authorized by specific legislative acts and that such authority is not present in the instant case. We disagree. We feel there is implied authority vested in the Metropolitan Sanitary District to make leases on the various pieces of property owned by the district. Specific legislative approval to dispose of or lease property is not required.

Plaintiff also argues that the lessee in Koehler was a not-for-profit corporation. We do not feel this fact was controlling. The court dismissed the case because of plaintiff’s lack of standing. The court did not raise the issue of whether or not the lease was for a proper public purpose.

The other arguments raised by plaintiff in an attempt to distinguish Koehler from the case at bar have been examined by us and are without merit.

Plaintiff’s second contention is that he has suffered the necessary special damages as a prerequisite to the maintenance of this action.

Taxpayers’ suits in Illinois are allowed, apart from certain instances of statutory authorization, only if they are designed to (a) enjoin unlawful expenditures (Fergus v. Russel, 270 Ill 304, 110 NE 130 (1915)); (b) bring about an accounting of public funds wrongfully withheld or retained by public officials (Jones v. O’Connell, 266 Ill 443, 107 NE 731 (1915)); (c) enjoin the levying of illegal taxes (Knopf v. First Nat. Bank of Chicago, 173 Ill 331, 50 NE 660 (1898)); or (d) enjoin the issuance or payment of general revenue bonds (Wright v. Bishop, 88 Ill 302 (1878)).

Plaintiff argues that the district’s outlay for maintenance of the real estate department was an illegal expenditure. We disagree. We find that the outlay for the maintenance of the district’s real estate department consists of many tasks other than the maintenance of the leased property. Furthermore, this argument was raised in Droste and rejected on the grounds that it was (1) conjectural and (2) de minimis.

Plaintiff next argues that public funds were withheld wrongfully by public officials of the district and that an accounting is warranted. There is no allegation in plaintiff’s amended complaint that district officials wrongfully retained or illegally expended funds. Jones v. O’Connell, 266 Ill 443, 107 NE 731 (1915).

Furthermore, plaintiff’s attempt to amend his amended complaint on appeal must be rejected. Under Section 92 of the Civil Practice Act, a reviewing court may, at its discretion, exercise all or any of the powers of amendment of the trial court. Section 46(3) of the Civil Practice Act provides, “a pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” These provisions have been interpreted as allowing an amendment to the pleadings in order to conform to the proofs submitted in the lower court. Kijowski v. Kijowski, 36 Ill App2d 94, 183 NE2d 583 (1962). Here, however, no evidence was presented in the lower court and the motion to amend the amended complaint is disallowed.

Finally, plaintiff argues that the rentals being inadequate, the district is forced to levy higher taxes, and that the levy of higher taxes make them illegal. This same argument was raised in Koehler and rejected. In view of our holdings, there is no need to discuss the other arguments raised by the parties and the judgment is affirmed.

Judgment affirmed.

BURKE, and BRYANT, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    Eric C. Flodberg, et al., Plaintiffs-Appellees, v. Dewey Whitcomb, Defendant-Appellant.
    Gen. No. 51,052.
    First District, Third Division.
    January 26, 1967.
    Rehearing denied February 16, 1967.

      Herbert Zahn, of Lombard, and Zeno Middleton, of Chicago, for appellant.
    Jack L. Sachs, of Chicago (Sidney Z. Karasik, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Anton Flodberg, his wife Christina, and Hilma Anderson were injured when the defendant’s automobile in which they were riding struck a utility pole. They brought suit against the defendant, Dewey Whitcomb. A jury found the defendant liable and judgments for all three plaintiffs were entered. The defendant has appealed. The principal issue is whether, under the facts of the case, it was necessary for the plaintiffs to prove willful and wanton misconduct on the part of the defendant in order to recover.

On April 15, 1958, after attending a funeral the defendant, Fritz Borgman, Esther Pearson and the plaintiffs went to the parsonage for coffee. There Whitcomb was asked to drive the others home; no contention is made that the plaintiffs were passengers for hire. At a corner near their homes Whitcomb stopped his car to let Borg-man and Esther Pearson out. The Flodbergs and Esther Pearson were in the rear seat and the latter alighted from the right rear door. Borgman was seated in the front seat between the defendant and Hilma Anderson; because Hilma Anderson was an elderly woman Whitcomb decided to get out of the car to let Borgman alight from the driver’s side. Whitcomb put the emergency brake on and started to get out, but he left the car’s engine running and its transmission engaged. He had his left hand on the steering wheel and one foot on the ground when Borgman moved under the steering wheel. Borgman stepped on the accelerator, the car moved forward dragging Whitcomb along and causing him to fall. The automobile then struck a utility pole and turned over.

The defendant’s main contention is that the trial court erred in refusing to give instructions based on the guest statute (Ill Rev Stats, c 95y% § 9-201 (1957)). The plaintiffs’ responses are that the defendant’s failure to plead the guest statute as an affirmative defense waived the defense, that his answer to their complaint and the admissions of his counsel were judicial admissions which conclusively barred application of the statute, and that even if the statute were otherwise applicable the evidence showed that the host-guest relationship had terminated before the accident occurred.

Neither the complaint nor answer mentioned the guest statute by name or designated it by citation. The plaintiffs argue that the statute is an affirmative defense and that the defendant’s failure to plead this defense precludes him from relying upon it. A party will not be permitted to argue on appeal a defense not interposed by his answer (Kioutas v. City of Chicago, 59 Ill App2d 441, 208 NE2d 587 (1965); Consoer v. Addis, 37 Ill App 2d 105, 185 NE2d 97 (1962)) but the theory of liability set forth in the plaintiffs’ complaint was based in part upon the statute’s standard of willful and wanton misconduct. The complaint alleged that it was the defendant’s duty to avoid any willful, wanton, careless or negligent conduct which would cause injury to the plaintiffs, that he breached his duty by carelessly, negligently, willfully and wantonly leaving the vehicle while the motor was engaged and the gears were in a drive position and that at the time of the injuries the plaintiffs were free from any willful or wanton misconduct. It also alleged that the plaintiffs’ damages were the result of the negligent, willful and wanton misconduct of the defendant. The defendant’s answer denied these allegations and averred that the injuries sustained were not the result of any willful or wanton misconduct. The guest statute was injected into the case by the complaint’s charging the defendant with willful and wanton conduct; the answer denied the charge; the issue was joined and the case was tried on this issue.

The portion of the defendant’s answer which the plaintiffs claim is a judicial admission is as follows:

“The defendant admits . . . that he was the owner of a certain motor vehicle at the time and place . . . [specified in the complaint], but specifically denies that he operated said motor vehicle at the time of the occurrence. . . .”

The defendant’s answer, while denying he operated the automobile, did not deny that he was its driver. The answer obviously intended to negative the plaintiffs’ allegation that he operated it at the time of the accident. Since the statute applies to the driver of a motor vehicle as well as to its operator, the answer was not an admission that the guest statute was inapplicable to the case.

The. admission of the defendant’s counsel which is claimed to conclusively bar application of the guest statute occurred in a discussion between the court and counsel outside the presence of the jury: the defendant’s counsel replied affirmatively to the court’s question whether he contended that Borgman, the man who stepped on the accelerator, was driving the car or was in charge of the car when the defendant stepped out to permit him to slide under the steering wheel. The court then stated that he was going to hold as a matter of law that the statute did not apply and defense counsel protested. This discussion did not bar the application of the guest statute. At best it resulted in an understanding as to the facts in evidence, for the defendant’s attorney did not acquiesce in the court’s ruling.

The plaintiffs cite three cases which are said to support their position that if a driver steps out of his vehicle the host-guest relationship terminates. Randolph v. Webb, 44 Ill App2d 118, 194 NE2d 379 (1963); Puckett v. Pailthorpe, 207 Ia 613, 223 NW 254 (1929), and Panopulos v. Maderis (Cal App), 293 P2d 121, vacated 47 Cal2d 337, 303 P2d 738 (1956). The first two cases are distinguishable on their facts and the third, an opinion by a California District Court of Appeal, was reversed by the California Supreme Court. 47 Cal2d 337, 303 P2d 738 (1956). In the Randolph case the accident occurred after the plaintiff had alighted upon completion of the contemplated trip. In Puckett v. Pailthorpe the accident happened before the trip commenced. The defendants told the plaintiff that they would give her a ride, that they would be ready to leave after they finished their dinner, and that she should await them in the automobile. The automobile door fell on the plaintiff as she entered. The Panopulos case involved an accident which occurred while the defendant-driver was temporarily outside the vehicle and judgments for the defendant were reversed by the Court of Appeal on the ground that the guest statute did not apply. The Supreme Court reversed and stated that the case was to be distinguished from that where a guest has temporarily left the vehicle; that when a guest remains in the vehicle while the driver steps out, he is still occupying the host’s property and enjoying his hospitality.

Courts of other jurisdictions have passed upon the same issue and have arrived at the same decision. See, e. g., Horst v. Holtzen, 249 Ia 598, 90 NW2d 41 (1958). A decision by our own court carries the implication that the guest statute may be applicable even though a defendant-driver has alighted from his vehicle before the accident occurs (see Marks v. Newburger, 69 Ill App2d 220, 216 NE2d 250 (1966)), and two other Illinois cases imply that the driver’s absence from his vehicle at the time of the accident does not necessarily preclude the statute’s application. (Tallios v. Tallios, 350 Ill App 299, 112 NE2d 723 (1953) and Haskell v. Perkins, 16 Ill App2d 428, 148 NE2d 625 (1958).)

In Tallies the defendant was driving the plaintiff home when the latter discovered that she could not find her purse in the truck. The defendant stopped the truck and she got out to look for it under the seat. While she was getting back in, the truck moved forward and caused her to fall. She contended that the host-guest relationship terminated when the truck stopped and she alighted. The court rejected her contention, stating that limiting the effect of the statute to accidents occurring when a guest is seated in an automobile in motion would defeat or impair the legislative purpose. Analogizing the host-guest relation to that of common carrier and passenger for hire, the court held that the host-guest relation begins when the guest attempts to enter and ends when he has safely alighted at the termination of the ride.

Haskell v. Perkins also involved an accident which occurred during an interruption of the ride. The plaintiff and the defendant both got out of the car when the latter stopped to help a stranded motorist. The plaintiff went to a spot about 20 feet from the pavement where he was struck by a motorist. The defendant contended that since the plaintiff had not reached his intended destination he was still a guest under the rationale of the Tallios case. The court held that the host-guest relation terminated when the ride was interrupted since the stopping was not incidental to any courtesy being extended by the defendant to his guest.

These cases indicate that the purpose for which the ride was interrupted determines the applicability of the guest statute: if the purpose was. for the host to extend a courtesy to his guest the statute governs their relationship. Although this test was developed in cases where the controversy centered on the effect of the rider’s being outside the vehicle, it is likewise pertinent where the driver is outside, for the relationship between the parties of host and guest is reciprocal.

In the instant case the defendant stopped his automobile to allow Esther Pearson and Borgman to alight— to extend the very courtesy which they had requested. He was then the driver of the vehicle and, although he ceased operating it, there is no doubt that he and all the parties anticipated that he would immediately resume his driving. The plaintiffs were persons riding in the motor vehicle as guests and one of them, Hilma Anderson, was his mother-in-law. Although the defendant had gotten out of the automobile, his purpose was in accord with his status as host; consequently, the host-guest relationship continued.

The plaintiffs were not entitled to judgment unless the evidence showed the defendant guilty of willful or wanton misconduct. Willful or wanton misconduct is established when the evidence proves that the defendant acted intentionally or with reckless disregard or conscious indifference for the consequences when the safety of others was known to be involved. Myers v. Krajefska, 8 Ill2d 322, 134 NE2d 277 (1956); Cooper v. Cox, 31 Ill App2d 51, 175 NE2d 651 (1961). The defendant did leave the motor running and the transmission engaged when he alighted, but he set the emergency brake. He could not reasonably anticipate that Borgman would step on the accelerator as he got out of the automobile. The defendant’s conduct may have been negligent, but it fell far short of being intentionally harmful, and it did not exhibit a conscious disregard for the safety of his passengers. His conduct not being willful or wanton, the judgments for the plaintiffs must be reversed.

Our conclusion makes it unnecessary to review other errors which are alleged to have occurred during the trial.

Judgments for the plaintiffs reversed and judgment for the defendant entered in this court.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    Geraldine Corcoran, Plaintiff-Appellant, v. Edward D. Corcoran, Defendant-Appellee.
    Gen. No. 50,917.
    First District, Third Division.
    January 26, 1967.

      Bentley, Campbell, Du Canto & Silvestri, of Chicago (Joseph N. Du Canto, of counsel), for appellant.
    Cusack and Cusack, of Chicago (John F. Cusack, James J. Cusack, Jr. and Robert E. Cusack, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a decree of divorce in favor of plaintiff-wife under which custody of the four minor children was awarded to defendant-father, and alimony payable to plaintiff was set at fifty ($50) dollars a week.

Plaintiff appeals the custody provision and the amount of alimony. With regard to the custody award plaintiff contends that she must be proven unfit as a mother to be denied custody; that she, the mother, should have been preferred despite her record of prior mental illness; and that the preference expressed by the children is entitled to great weight. Plaintiff also contends that in awarding alimony and barring plaintiff from the marital home the court erred in failing to require adequate proof of defendant’s income and assets, and of plaintiff’s needs and rights.

Plaintiff and defendant were married on October 27, 1947, and subsequently four children were born of the marriage. At the time of the hearing these children were 17, 15, 13 and 9 years of age’; the eldest is a boy, the others are girls.

Plaintiff has a history of mental illness and hospitalization therefor. Shortly after the birth of the first child she was hospitalized for six weeks with a condition described as post partum depression. During 1958 plaintiff was hospitalized for a month at a private sanitarium where she received electroshock treatment. In June of 1959 Mrs. Corcoran was hospitalized at Mercyville for a few weeks and then was transferred to Elgin State Hospital where she remained until March of 1961. Beginning in December, 1961, she spent a month in a private hospital, returned home for a short period, and then returned to Elgin State Hospital, where she remained until July, 1962.

During her first eleven years of marriage plaintiff lived with defendant and the children in what defendant characterized as “a real family setup.” There was no question but that for that period she had adequately cared for her children. After her release in July, 1962, plaintiff went to live with her mother, until May, 1963, at which time she went to St. Joseph’s home for the aged. It is not clear whether she was employed or cared for at St. Joseph’s. Mrs. Corcoran’s civil rights were restored to her in January, 1964.

Plaintiff testified that in June, 1964, her doctor told her she could return home if she was provided with a “companion” to help her over the “rough spots.” Just what transpired between plaintiff and defendant thereafter is unclear, as the testimony was contradictory and somewhat indefinite, but plaintiff did not return to the marital home until June 29, 1965, when it was so ordered by the court during the pendency of this proceeding.

On March 11, 1965, plaintiff filed a complaint for separate maintenance; defendant responded on April 9, 1965, counterclaiming for divorce; on September 9, 1965, plaintiff filed an amended complaint for divorce. Upon trial plaintiff was granted the divorce and fifty ($50) dollars a week in alimony, and defendant was granted custody of the children.

Plaintiff and defendant agree that the best interests of the children are the prime consideration of the trial court in determining the question of custody. Serotzke v. Serotzke, 335 Ill App 485, 82 NE2d 375; Dun ning v. Dunning, 14 Ill App2d 242,144 NE2d 535; Schmidt v. Schmidt, 346 Ill App 436,105 NE2d 117. Plaintiff goes further, however, and contends that the best interests doctrine requires custody to be awarded to the mother unless she is shown to be unfit. In Nye v. Nye, 411 Ill 408,104 NE2d 218, the court said at page 414:

“Under our divorce statute the court is clothed with a large discretion in determining to which parent a child will be given. It is usual in such cases, due to the tender years of the child and in consideration of its best interests, to entrust its care and custody to the mother, she being a fit and proper person to rear the child. (Miner v. Miner, 11 Ill 43; Draper v. Draper, 68 Ill 17.) The maternal affection is more active and better adapted to the care of the child. Especially this is true in the case of a minor daughter, where the care and guidance of a mother’s hand is doubly important. This principle has become so well fixed and followed in this State that this Court had not in recent years been called to rule upon it. Therefore, compelling evidence must be presented, proving the mother to be an unfit person, to cause the custody of her minor daughter to be denied her, or there must be a positive showing that to deny custody to the mother would be for the best interest of the child.”

The above case is distinguishable from the one at hand in two apparent aspects. First, the Nye case dealt with a woman who had been denied custody originally because she was living with a man other than her husband, whereas the case at hand involves mental illness. Secondly, the mother in Nye introduced positive evidence of reform by showing that she had since married the man involved, and therefore was no longer conducting her affairs in an adulterous manner. Mrs. Corcoran presented no positive evidence of recovery other than statements by herself and her brother, both laymen in the field of mental health, to the effect that she was then able to properly care for her children. Defendant, on the other hand, refers us to Osborn v. Hufsey, 44 Ill App2d 157, 194 NE2d 556, (abstract), a case factually similar to Nye, in which the court said:

“On appeal in this Court it is the contention of the mother that such decree (denial of custody to her) was erroneous since there was no finding that the appellant was an unfit person, and that there was insufficient evidence otherwise to justify a change of custody.
“The trial Court found that the home of the mother was not a fit, suitable, or proper home for the minor children and ordered a change of custody accordingly. This finding of the Court could have been justified by evidence as to the crowded conditions of the home and that the man to whom the mother was now married was a person of such character that children of tender years should not be associated with him (Serotzke v. Serotzke, 335 Ill App 485). It was unnecessary that the Court make a finding that the mother was an unfit person to have custody of the children.”

We feel that in the instant case the trial court could have found that the plaintiff’s history of mental illness added to a failure on her part to give medical evidence of recovery, justified that court in awarding custody to the father, about whom there was no question of ability to provide and care for the children.

Plaintiff next contends that prior mental illness of a mother from which she has recovered does not justify a denial of custody. In support of this position plaintiff cites numerous cases. While we do not disagree with this argument, we do not feel it is applicable here insofar as these cases are all distinguishable by expert medical testimony in each, showing the mother had recovered, was able to cope with the raising of children, and that the children would not be harmed in any way by her present condition. Mrs. Corcoran made no effort to prove her recovery by medical evidence of her present condition or of future expectations of recurrence or progress. The trial judge was able to observe the parties and hear their testimony, and to talk with the children. It has been generally held that this observation is a vital factor in the determination, and that the reviewing court should not disturb the findings unless they are palpably against the weight of the evidence. Kokotekian v. Kokotekian, 23 Ill App2d 171, 161 NE2d 712. Upon the record pre sented us in the instant case we cannot disagree with the trial judge’s determination.

Plaintiff also contends that the preference of the children is entitled to great weight. The court in Oakes v. Oakes, 45 Ill App2d 387, 195 NE2d 840, in reference to a sixteen-year-old child’s choice, said at page 390, “But it is clear to us that while her preference was not binding, it was intended to be a most important element in the determination of her custody. That is as it should be.” However, in that case, as in others cited by plaintiff, it was not contended that either parent was unfit for custody purposes. The Corcoran girls expressed a desire to be with their mother, but none had any objection to remaining with their father. The court mentioned that it had talked with the children, thus hearing their preferences, and yet determined that it was in their best interests to stay with their father. We cannot say this finding was unsound. We feel therefore, that it was Within the trial court’s discretion to award custody to the father (in whose care they were throughout the period of the mother’s hospitalization), regardless of the mother’s release and the views of the children.

Plaintiff finally contends that the court should have required adequate proof of defendant’s income and assets and plaintiff’s needs before making the alimony award of fifty ($50) dollars a week. Plaintiff, in her complaint, alleged that she was then unemployed and without resources and that defendant earned in excess of two hundred ($200) dollars per week. Defendant, by answer, admitted the allegation as to his income but did not elaborate on the point. Although the court is to examine the circumstances of the parties in determining alimony (Canady v. Canady, 30 Ill2d 440, 197 NE2d 42), it can examine only what has been presented to it. Plaintiff’s trial attorney was evidently satisfied with the allegation and admission regarding the amount of defendant’s income as a basis for the trial judge’s determination of the proper amount of alimony. During the trial that attorney said: “With the Court’s permission, I will not go into the question of support, the fact that she has no means of support, or the reasonableness and the amount of support. . . .”

“The presumption is in favor of the regularity of the proceedings in the trial court and this presumption will obtain until overcome by a showing that error has been committed.” Smith v. Smith, 36 Ill App2d 55, 60, 183 NE2d 559. In light of the above rule we cannot say that it was error for the court to make its determination without demanding evidence which plaintiff did not seek to present.

Furthermore, although plaintiff was granted the divorce, it is not unreasonable that the court did not award her the family home but rather provided that she should remove herself and her belongings therefrom. The father was given custody of the children and it is understandable that they should be allowed to remain in the home in which they have been during the time of the mother’s illness. It is difficult to see how plaintiff, without the four children, has need of the family dwelling. We cannot therefore find error in the court’s decision on this matter.

Because plaintiff raised no convincing points on appeal regarding the custody, alimony and plaintiff’s rights to the defendant’s property, the decree must be affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    Philip V. Clarke, Plaintiff-Appellee, v. Michael Rochford, Defendant-Appellant.
    Gen. No. 50,809.
    First District, Third Division.
    January 26, 1967.

      Anthony R. Lazzarra, of Chicago (E. Paul Lanphier, of counsel), for appellant.
    Donald A. Carr and Robert J. O’Rourke, of Chicago, for appellee. .
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant appeals from a $3,800 judgment awarded to the plaintiff by a jury for damages sustained when the defendant ran into the rear end of the plaintiff’s automobile.

The complaint was originally filed in the County Court of Cook County in April of 1963 for the maximum jurisdictional amount of that court, $2,000. Following the effective date of the judicial amendment, January 1,1964, the ad damnum was increased to $5,000.

In this appeal the defendant does not contest his liability. He contends that the verdict is excessive and was caused (a) by the prejudicial conduct of counsel for the plaintiff in asking improper questions of the defendant and (b) the plaintiff’s mentioning in front of the jury that the defendant was insured. He urges reversal of the judgment and remandment or, in the alternative, that this court require the plaintiff to remit a portion of the judgment.

•At approximately 2:00 a. m. on December 26, 1962, the plaintiff was traveling in his auto in a northerly direction on Halsted Street in the City of Chicago. He was on his way home from an establishment known as the Blarney Club. He stopped for a red light at 63rd Street and his car was struck from behind by the defendant and pushed across the street. The defendant was also on his way home from the same club but there is no indication that the parties knew each other prior to the occurrence.

The impact caused $300 damage to the plaintiff’s car and caused his left knee to strike the dashboard. He testified that his knee was injured, that he missed two days of work and lost $50 in wages. He said that his knee was x-rayed, that he consulted physicians six or seven times and that at the time of the trial he was still bathing his knee in hot water to relieve the pain. No medical testimony was presented by the plaintiff to support his claimed injury.

During the course of the trial the plaintiff called the defendant as an adverse witness under section 60 of the Civil Practice Act. The attorney for the plaintiff inquired whether the defendant had been drinking and an objection was sustained. He asked whether or not drinks were served at the Blarney Club. An objection was likewise sustained to this question. The attorney explained to the court in the presence of the jury that the question of whether or not the defendant had something to drink went to the negligence of the case. Once again an objection was sustained and then the attorney inquired of the court, in the presence of the jury, whether he could not show that the defendant had something to drink before operating his vehicle.

During the course of the same examination, the plaintiff’s attorney asked whether the defendant’s driver’s license had been revoked for drunken driving. The defendant responded that it had not been. He was asked whether it ever had been revoked for drunken driving and he answered that it had been revoked for that reason in 1959. He was then asked if he had failed his driver’s examination when he took it in 1959. The attorney persisted with questions along this line and he also inquired whether the defendant had been involved in an accident prior to this one.

The plaintiff presented no evidence and made no offer to prove that the defendant had been drinking or that he was under the influence of liquor at the time of the accident. In the absence of subsequent proof, the attorney’s intimations were unfair. Furthermore, his question, directed to the court itself within the hearing of the jury after the court had ruled adversely to him: "... I may not show this man had something to drink before he operated his motor vehicle?” carried the implication that the defendant had been drinking and that the plaintiff was being thwarted in his effort to prove it. This unfounded implication and the continued questioning, indulged in despite the court’s correct and repeated rulings, were prejudicial to the defendant.

Evidence of intoxication is admissible in a personal injury action as tending to show the negligence of one of the parties. South Chicago City Ry. Co. v. Dufresne, 200 Ill 456, 65 NE 1075 (1903); 8 Am Jur2d, Automobiles and Highway Traffic, § 938. It has been held that this is so under a general negligence allegation even where the complaint does not specifically allege intoxication, as it did not in this case. Fox v. Hopkins, 343 Ill App 404, 99 NE2d 363 (1951). However, ques tions cannot be asked which intimate to the jury that a party was intoxicated at the time of the accident unless there is supporting evidence. In Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348 (1954) simi lar questions were asked but no effort was made to prove that the party had been under the influence of alcohol. The court observed that the highly prejudicial effect of such questions was not readily removed by the trial court’s sustaining objections to them.

The attorney for the plaintiff also engaged in improper questioning when he inquired about the revocation of the defendant’s driver’s license for drunken driving and when he asked whether or not the defendant had been involved in a prior accident. The former question could only serve to focus attention on the defendant’s prior conduct which had no relationship to the manner in which he acted on the night in question. The latter question was likewise improper as it would lead to a consideration of an issue immaterial to the determination of the defendant’s negligence in the case on trial.

Because of the conclusion we have reached concerning the defendant’s first contention, it is unnecessary to discuss in detail his second one: that he was prejudiced by the testimony of the plaintiff which revealed that at the time of the accident, the defendant said he was insured. It is within the discretion of the trial court to determine whether the mention of insurance is prejudicial (Granger v. Turley, 20 Ill App2d 488, 156 NE2d 610 (1959)) and the trial court did not err in not declaring the mistrial requested by the defendant.

Normally, the unfair effort to discredit the defendant and the cumulative prejudicial effect of the questions asked him would cause this court to reverse the judgment and remand the case for a new trial. However, because the defendant concedes his liability, we do not find it necessary to take such action. Instead, we have decided to affirm the judgment on the condition that the plaintiff consent to a remittitur.

In view of the special damages shown ($300, car repairs; $50, lost wages, and $48 in medical expenses) and the lack of any medical evidence supporting the plaintiff’s testimony concerning the seriousness, extent or permanency of his injury we believe the verdict of $3,800 was excessive.

Pursuant to the authority vested in this court in El Rev Stats (1965) c 110, § 92(1) (e), we affirm the judgment on the express condition that the plaintiff enter a remittitur of $1,300. Barker v. Barker, 36 Ill App2d 20, 183 NE2d 518 (1962); Ault v. Associates Discount Corp., 43 Ill App2d 409, 193 NE2d 226 (1963). Upon the filing of such remittitur the judgment will be affirmed; otherwise the judgment will be reversed and the case remanded for a new trial.

Judgment affirmed upon the filing of remittitur; otherwise judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: STOUDER, P. J.

text:
    Edward Kelley, Plaintiff and Counter-Defendant Appellant, v. James Cross and Barbara Cross, Defendants and Counter-Plaintiffs Appellees.
    Gen. No. 66-71.
    Third District.
    January 30, 1967.

      Roger V. Pierson and Fred W. Potter, of Princeton, for appellant.
    Zwanzig, Lanuti, Bower & Zwanzig, of Ottawa, for appellees.
   STOUDER, P. J.

Plaintiff-Appellant, Edward Kelley commenced this action for damages arising from the alleged negligent operation of a motor vehicle by Defendant, James Cross. In a counterclaim Defendant Cross sought damages on account of Plaintiff Kelley’s alleged negligent operation of his motor vehicle. The Circuit Court of Bureau County entered judgments on the verdicts of the jury in favor of Plaintiff in the amount of $1,076.74 and against Defendant both on the original action and his counterclaim. Plaintiff’s post-trial motion requested a new trial limited to the issue of damages only, or in the alternative for a new trial generally, alleging that the judgment was inadequate because it was for the exact amount of the special damages proved. Defendant’s post-trial motion requested that judgment be entered for him notwithstanding the verdict of the jury and alleged that the verdict of the jury was not sustained by the evidence. The post-trial motions were denied and each party has appealed.

According to Plaintiff’s version of the incident he was operating his car in a northerly direction on route 88. As he approached an intersection of route 88 and an east-west gravel road he decreased his speed to five to ten miles per hour and used his turn signal preparatory to making a left-hand turn onto the gravel road. Immediately prior to turning, it appeared to him that the southbound car of Defendant was heading straight toward him so he turned his car toward the right-hand shoulder to avoid a collision, the collision thereafter occurring in the northbound lane. Plaintiff’s car came to rest on the east shoulder 56 feet south of the intersection and sustained substantial damage to the left front portion.

According to Defendant counterclaimant’s version of the incident, he was operating his car in a southerly direction on route 88 at a speed of 55 to 60 miles per hour. As he approached the intersection he decreased his speed to 45 miles per hour and when he was about 100 feet from Plaintiff’s car, the latter’s car suddenly veered into the southbound lane of the highway. Defendant turned his car to the left into the northbound lane of the highway to avoid a collision but at that time Plaintiff veered back into the northbound lane, the collision occurring in the center of the highway as the Defendant was endeavoring to return to the southbound lane. Defendant claimed that he observed no lights on the Plaintiff’s car. Plaintiff’s car came to rest partly in the northbound lane 67 feet from the intersection and sustained substantial damage to the left front portion. Defendant’s wife was a passenger in his car and in her testimony she corroborated Defendant’s version of the incident.

Investigating police officers testified concerning the location of and damage to the cars as well as to other physical facts existing after the incident occurred.

We shall first consider Defendant’s cross appeal and his contention that the trial court erred in denying his post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial because there is insufficient evidence to support the jury’s verdict. It is conceded by Defendant that where the evidence is substantially conflicting, the weight and credibility to be given the evidence is properly a matter for the jury. However Defendant argues that Plaintiff’s testimony was impeached and consequently is entitled to little or no weight. On cross-examination Plaintiff was asked the following questions and gave the following answers. “Q. Now, actually you don’t recall how the accident itself really happened, isn’t that true? A. Well, of course, I don’t know how it came the man hit me, the car hit me, I know it hit me and that’s all I know about it. Q. That’s true, isn’t it, that’s actually all you know? A. At the time.” Defendant insists that under the authority of Baumeister v. Bowers, 271 Ill App 332, the foregoing answers of Plaintiff require that his testimony be disregarded. In Baumeister, an action by a guest passenger against the driver of the automobile in which Plaintiff was a passenger, Plaintiff admitted that her testimony was completely different from the statements she had made at the time of the occurrence and insisted that such change in testimony was at the suggestion of the Defendant. In the instant case the two questions relied upon by Defendant are vague and argumentative and the answers of Plaintiff are equally vague. Such questions and answers do not represent any such contradiction as in Baumeister. The most that can be said of the testimony in the instant case is that it does not support any clear conclusion. In the instant case, the evidence being substantially in conflict, the jury had a right to assess the weight and credibility of the evidence including the purported impeaching evidence, and we believe that the issues were properly submitted to the jury and its verdict is amply supported by the evidence.

Plaintiff contends that although the judgment of the trial court was in his favor, the court should have awarded him a new trial limited to the issue of damages only or in the alternative for a new trial generally. Plaintiff argues that the amount of the judgment was inadequate and that based on the evidence the jury failed to take into account proper elements of damages. The undisputed evidence shows that Plaintiff sustained 2 broken ribs, abrasions of the nose and contusions of the shoulder. He was hospitalized for 4 days and under treatment by a physician for approximately a month. During the period of the treatment Plaintiff’s ribs were immobilized. Physicians testified concerning the injuries and indicated that sedatives and ultrasonic treatment had been administered and that Plaintiff sustained no permanent injury. Plaintiff testified that he sustained no permanent injury and that his recovery was complete. His testimony concerning pain, if any, was vague and uncertain. The physicians testified that Plaintiff complained of pain in his shoulder and side at the time of his admission to the hospital and several times during the course of the treatment. The exhibits substantiating special damages showed $868.49 for towing and repair of Plaintiff’s automobile and $208.-25 for hospital and physicians’ services or a total of $1,076.74, the exact amount of the jury’s award.

The jury was instructed in the customary manner that if it found liability against the Defendant it could properly consider the following elements of damages, “The nature, extent and duration of the injuries. The pain and suffering experienced as a result of the injuries. The reasonable. expense of necessary medical care, treatment and services received. The reasonable expense of necessary repairs to the property which was damaged.” No claim is made that based on the evidence the jury was improperly instructed on the issue of damages.

When a verdict in favor of a Plaintiff is fully supported by the evidence on the issue of liability but the damages awarded are inadequate, a new trial may be ordered on the issue of damages only. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275, and Mineiko v. Rizzuto, 65 Ill App2d 35, 212 NE2d 712. In the application of the foregoing principles Plaintiff argues that it is evident from the amount of the award that the jury disregarded the nature, extent and duration of the injury and Plaintiff’s pain and suffering. We have reviewed the cases relied upon by Plaintiff, namely Mineiko v. Rizzuto, 65 Ill App2d 35, 212 NE2d 712, Haizen v. Yellow Cab Co., 41 Ill App2d 330, 190 NE2d 514, Montgomery v. Simon, 309 Ill App 516, 33 NE2d 642 and Hong v. Williams, 6 Ill App2d 456, 128 NE2d 655. Without reviewing the facts of each of the foregoing cases it is clear that new trials were granted where the amounts were for less than the undisputed out-of-pocket expenses or nominal awards were returned by the jury notwithstanding undisputed evidence of serious permanent injuries.

In matters relating to damages the courts are reluctant to interfere with the discretion of the jury as to the amount of damages to be awarded. 15 ILP Damages, § 162. Where no complaint is made as to instructions to the jury or the admissibility or rejection of evidence, the reviewing court will not disturb the amount of the damages unless the damages are palpably inadequate. Corsello v. Warren, 51 Ill App2d 367, 201 NE2d 155.

The record discloses Plaintiff sustained no permanent injury and all special damages proved were included in the jury’s award. To the extent that the award may be deemed to have not included any amount with respect to the nature of the Plaintiff’s injuries or his pain and suffering we believe that the jury had the right to conclude that these elements of damage were at most minimal and hence insufficient to require or support an economic evaluation thereof. Giddings v. Wyman, 32 Ill App2d 266, 177 NE2d 641. Such considerations are peculiarly within the province of the jury and we find no reason for disturbing its verdict.

For the foregoing reasons the judgments of the Circuit Court of Bureau County are affirmed.

Judgments affirmed.

ALLOY and CORYN, JJ., concur.