author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Cecil Martin and Lawrence Williams, Defendants-Appellants.
    Gen. Nos. 51,690, 51,693.
    First District, Third Division.
    May 16, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendants appeal from convictions of robbery. They were tried at a bench trial along with Donald Lee. Martin was sentenced to a term of three to ten years in the penitentiary and Williams was sentenced to one to two-years in the penitentiary.

The issue on appeal is whether the identification of Martin and Williams by the complaining witness was sufficient to support a finding of guilty beyond a reasonable doubt.

Alexander Hubbard, the complaining witness, testified that on September 16, 1965, at approximately 1:50 a. m. three men hailed and entered his cab at the corner of 48th Street and South Parkway. He had never before seen the three men. The cab was then under the comer lights and, as the rear door was opened, the interior light of the cab went on. Hubbard was directed to drive north to 44th Street and then turn off toward St. Lawrence Avenue. As he turned south on St. Lawrence he was told to stop the car, “this is a stick-up.” All three passengers had butcher knives. The cab was in motion as the man identified by Hubbard as Martin got money out of the driver’s pocket and took the money changer. The man identified as Williams was holding Hubbard and cut him on the chest and hand. Hubbard was then ordered out of the cab and told to walk south on St. Lawrence. The assailants escaped through an alley. When the police arrived a few minutes later Hubbard gave his description of the men. He testified that he said Williams had on a brown jacket and a brown hat and that he was about Hubbard’s height, five seven or eight. Martin had on a red and white sweater. At the trial Hubbard said that all three men were clean-shaven the night of the robbery. Later in the morning of the robbery, he returned to the scene of the robbery and discovered a knife similar to the one which injured him. The knife was not introduced into evidence.

On October 21, 1965, Hubbard approached two police officers at 47th and Vincennes and said he had just seen the three men who had robbed him. He testified that between the dates of the robbery and the arrest he had seen two of the defendants individually on the street but did not then go to the police because he wanted to get all three together.

Hubbard testified that he wore his glasses all the time, but on cross-examination stated that he wore them mostly to read.

Defendants testified in their own behalf and all three denied taking part in the robbery. Martin said he was unable to remember where he was on September 15th, but that he only saw the other two defendants once in September and that was on September 8th, his birthday. He also said he had had a stroke in July, 1965, which left his right hand somewhat incapacitated in that if he wrote he had “to do it by going through a whole lot of motions.”

Williams testified that he was at his sister’s house from 3 or 4 p. m. on September 15th until 9 or 10 a. m. on the 16th. He said he was over there often to watch television and occasionally stayed overnight if his sister requested him to. Clodies Slaughter, sister of Williams, testified that he came to her house and stayed overnight. She recalled the particular date because her television had been repaired and was returned to her that day. That evening they stayed up to watch the late movie which went off about 1:30 or 2 a. m. A repair ticket with a “date promised” of September 15, 1965, was introduced into evidence.

Lee testified that he was at home, which alibi was corroborated by his sister and mother.

Defendants Martin and Williams contend that the discrepancies in the complaining witness’ testimony and identification of defendants raise a reasonable doubt as to their guilt. It is well known that positive identification by one credible witness is sufficient to sustain a conviction. (People v. Hunter, 23 Ill2d 177, 177 NE2d 138; People v. Brown, 16 Ill2d 482, 158 NE2d 579; People v. Robbins, 88 Ill App2d 447, 232 NE2d 302.) However, the conviction cannot stand if the identification is vague, doubtful and uncertain. (People v. Cullotta, 32 Ill2d 502, 207 NE2d 444; People v. Ikerd, 26 Ill2d 573, 188 NE2d 12.) The court in the Cullotta case said at page 504:

“. . . where, as here, the identifying witnesses have never before observed the accused, the attendant circumstances, including the opportunity for definite identification, must be carefully weighed and considered.”

The robbery took place about 1:50 a. m. Three men entered the cab at a well-lighted comer while there was an interior cab light on. As the door was closed the light was turned off. At that time the driver had no notion of any trouble. From that time to the completion of the robbery the interior lights of the cab were out. The driver was finally told to get out of the cab and not to look back.

That same night he described Williams as about his own height, 5' 7" or 8". The record shows that Williams is 6' 4". In People v. Marshall, 74 Ill App2d 483, 221 NE 2d 133, this court reversed a conviction based on the complaining witness’ identification of the defendant. The witness described the man who robbed him to police as 5' 10" or 11" and the defendant was only 5' 6". The court said on page 484:

“The complaining witness gave an explanation for his erroneous estimate of the robber’s height. He said he was on the ground and had to look up at the robber who was standing in the truck, the floor of which was about two feet above the ground. This explanation is reasonable as far as it goes and could account for the witness’ first impression of the height of the robber. However, the witness got into the truck next to the robber. He was then on the same level and he could compare the robber’s height with his own.”

Although the State in the instant case argues that this discrepancy is understandable in that the men were seated in the cab most of the time that Hubbard saw them, he stated that he saw the men standing when they hailed his cab. Furthermore, it is somewhat difficult to understand how Hubbard, thinking this man was about 5' 7" or 8", would not only pick out and identify a man 8 or 9 inches taller a month later where there were three men together, but also would recognize him upon seeing him alone sometime during that month time lapse.

A second discrepancy pointed out by the defendants is that Hubbard failed to notice or mention that Williams and Lee had mustaches. At the trial he testified that on September 16th Williams was clean-shaven, “just like he is now.” He also stated that Lee did not have a mustache at the time of the crime. The record shows that at the trial both Williams and Lee were wearing mustaches. Lee testified that he had had his since the age of 15 and cut it off only for basic training in the Army. He produced an Army identification picture of himself taken in 1954 in which he had a mustache. He also stated that he could not grow his mustache new in two months (the approximate time between his arrest and trial). Williams also testified that he had his mustache on the date of the robbery.

This court in People v. Kincy, 72 Ill App2d 419, 219 NE2d 662, said at page 424: “If the defendant had such a mustache on the day of the occurrence, that would have been something that could not normally have been overlooked.” The fact that the complaining witness did not at the time of the trial see the mustaches on two of the defendants casts a cloud on the certainty of his identification of the defendants as the men who robbed him. Those are characteristics which one would ordinarily notice if one had a good look at a person’s face.

It has been pointed out above that the lighting conditions were poor at the time of the robbery, and that the only well-lighted view of the passengers was had by the driver at a time when he did not know there was anything wrong. Furthermore, it was almost a month later that the driver next saw the three men together.

These circumstances, as well as the lack of showing in the record that the witness even noticed the distinguishing characteristics of defendants, leave a doubt as to the certainty of his identification of them as the men who robbed him.

The defendants also point out that both Williams and Lee presented alibis which were verified by members of their respective families. Even though this evidence was not presented by independent third parties we must be mindful of the language in People v. Gardner, 35 Ill2d 564, 221 NE2d 232, wherein the court said at page 571:

“Where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, it will be reversed. (People v. Fiorita, 339 Ill 78; People v. Kidd, 410 Ill 271.) Neither can we disregard the evidence of alibi where the sole and only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime. People v. Peck, 358 Ill 642; People v. De Suno, 354 Ill 387; People v. McGee, 21 Ill2d 440, 444."

The State urges that the complaining witness was certain in his identification and was able to describe the clothing worn by two of the robbers. However, the defendants were not arrested until nearly one month later and there was no showing that they were then wearing or even owned clothing similar to that described by Hubbard.

Finally defendants point out the time lapse between the robbery and the subsequent identification and arrest. In People v. Capon, 23 Ill2d 254, 178 NE2d 296, the court said that lapse of time goes to the weight of the evidence. Here Hubbard did not notify the police of the defendants’ identity until one month after the crime, although he testified that he had seen two of them individually during the month. He said he waited until they were all together because by having one arrested he might warn the others. No reason was given for his expectation that they would all be together again where he could see them.

The totality of the factors discussed above are sufficient to discredit the identification of the defendants. In our opinion these factors completely outweighed the subsequent events such as the driver’s picking out the defendants as the men who robbed him and identification of them in court. People v. Marshall, supra. The convictions of Martin and Williams cannot stand on an identification which is doubtful, vague and uncertain.

Judgments reversed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thaddeus Kozlowski, Defendant-Appellant.
    Gen. No. 51,610.
    First District, Second Division.
    May 21, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendant, Thaddeus Kozlowski, was convicted, in a bench trial, of the offense of burglary and sentenced by the court to a term of imprisonment of from not less than one (1) nor more than six (6) years in the State Penitentiary. Defendant prosecutes this appeal assigning alternatively as his theories on review: (1) that the court below erred by allowing a witness to testify who had remained in the courtroom in violation of an order excluding all witnesses; (2) that defendant was prejudiced by the admission into evidence of a footprint specimen taken from the scene of the burglarized premises; and (3) that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

The scene of the burglary was the J. E. Stringfellow Company, a printing establishment having its offices on the fifth floor of an eight-story building located at 440 North Wells Street in the City of Chicago. From the main floor of this structure there existed but one means of ingress and egress, that being the front entrance. Two stairways inside were the sole means of access to the upper levels, being located to the front and rear respectively of the ground floor and linked together by a common hallway which joined with the main door. An adjacent service elevator was out of operation on the date in question. The back stairway was covered with dust and was described as a fire exit seldom used by the building personnel. The two stairways however, above the ground level, did not share such a common hallway. Access to each could be gained only through the front and back doors respectively of the firms located above the first floor. The building itself housed numerous employees and opened generally at 6:00 a. m.

Russell Kosh, an employee of a company on the sixth floor, testified that at approximately 6:10 a. m. on the morning of September 28, 1965, he heard a pounding noise emanating from the Stringfellow premises on the floor immediately below. Kosh proceeded downstairs and assumed a position outside the Stringfellow firm’s front door to listen, asking Herman Buck to summon the police. The witness remained at his station until the arrival of Police Officer James O’Donnell about ten minutes later. He observed that the door was locked and bore no visible signs of tampering. Neither Kosh nor any other State’s witness had occasion to actually see the intruder on the fifth floor.

O’Donnell joined Kosh but could not gain entrance to the offices, proceeding back down the front stairs to the main floor at which juncture he observed defendant passing out the front door. Defendant was arrested, searched and found to be in possession only of six half-dollar coins of the Franklin-Bell variety and a set of personal keys. Defendant offered to explain his presence in the building, stating that he was simply in search of employment. Testimony however indicated that there had been no help wanted signs posted nor were any of the companies during this period advertising for male employees.

Frank Slatterly testified that he observed a quantity of half-dollar coins missing from his desk in the String-fellow office complex. The witness purported to be able to identify the coins seized from defendant as “similar” to those pilfered from his desk because each was of the issue bearing engravings of Benjamin Franklin and the Liberty Bell which he had made a habit of accumulating. When asked how many coins were taken, Slatterly could only fix the amount at, “probably six or seven dollars.” He, however, stated that he could not be sure.

Herman Buck stated that after notifying the police, he stationed an employee, L. D. Blue, at the foot of the rear stairway to intercept anyone attempting to leave the upper portions of the building. Blue testified that at approximately 6:20 a. m. defendant descended these stairs walking casually past him through the hallway towards the front door at which point he was seized by Buck and Officer O’Donnell. Blue, Buck and O’Donnell each identified defendant at trial as the same man so observed.

A subsequent examination of the burglarized offices revealed that the company safe had been opened by knocking off the dial. While no instruments of a blunt nature were found on defendant’s person, testimony disclosed that a variety of tools were kept on the burglarized premises to service the firm’s printing machinery. O’Donnell testified further that he had discovered an “obvious” footprint in the accumulated dust near the company’s rear fire door. A specimen of the print was taken by either the officer or a crime laboratory technician and compared to one of the work shoes then being worn by defendant. O’Donnell stated that there was a “very close similarity” between the two, without setting forth in what respect he based his judgment. He testified that the crime laboratory conducted an examination and was of the same opinion. The officer conceded that there were other footprints in proximity to the general area of the rear fire door. The footprint sample and shoe were subsequently admitted into evidence over objection by defendant.

Immediately following this account by O’Donnell, the State called Hugo Aranda, a Stringfellow employee, to testify. It would appear that the witnéss had arrived late at the trial and was ignorant of the court’s order excluding all witnesses entered at the onset of proceedings. Aranda, by his own admission, had been present in court for about 15 minutes and overheard the latter portion of the officer’s testimony relative to his discovery of the footprint. The witness was permitted to testify over defense objection, however. Aranda’s direct testimony was, for the most part, confined to a corroborative description of the condition of the burglarized premises. He, however, was able to add the observation that a block of wood wedged in the rear fire door to bar entry from without had been dislodged and was apparently missing. Aranda explained that such was a security measure because fire department regulations required that the fire exit be otherwise kept unlocked. On cross-examination, the witness conceded that to his knowledge there were five keys to the Stringfellow offices then outstanding. In response to further inquiry, Aranda gave an account of the discovery and location of the footprint which was in substantial conformity with the testimony of O’Donnell.

Testifying as the only witness in his own behalf, defendant adhered to his prior assertion that he had simply entered the building shortly after 6:00 a. m. that morning looking for employment. Defendant claimed that he was informed that the “boss” was not at work and was in the process of leaving when he was arrested. Defendant denied that he journeyed above the main floor level of the building.

Responding to defendant’s first contention on appeal, the lower court’s decision as to whether to permit one who had remained in court in violation of an order excluding all witnesses is a determination entrusted to the sound discretion of the trial judge. Absent some showing of a clear abuse of that judicial prerogative, the judgment made by the trial judge will not be disturbed on review. People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966). Having examined the record before us, we are of the opinion that defendant’s claim to prejudice from that decision is factually untenable.

Aranda’s presence in the courtroom was both innocent and confined to a relatively brief period. By the witness’ own admissions, the trial judge was made readily cognizant of those portions of testimony he had overheard as it would tend to affect the court’s determination of credibility on those same subjects. Significantly, the most damaging segment of Aranda’s testimony for which defendant complains; i. e., the footprint evidence, was elicited by the inquiries of defendant’s own counsel on cross-examination. Limiting our discussion then to the context of direct examination, Aranda’s account was simply that of a corroborative description of the general interior of the burglarized premises, an element of the case which had been established by the prior testimony of witnesses in addition to that of O’Donnell. Nor does it appear that O’Donnell’s prior testimony operated to suggest, or even influence, Aranda’s observation indicating that entrance had been gained by á tampering with the rear door, particularly in view of other evidence demonstrating that the front of the premises were not molested. Accordingly, defendant has failed to convince this court wherein he was prejudiced by that testimony.

While the State was unable to adduce direct testimony of defendant’s presence on the fifth floor, we think the record fairly reflects sufficient credible circumstantial evidence to support his conviction beyond a reasonable doubt. Defendant admitted to being in the building during the critical time period, offering an explanation which in view of the attendant circumstances taxed the limits of credulity. Defendant’s denial of having journeyed above the ground floor was directly contradicted by the positive identification of the witness, Blue, who pointed out defendant as the man he observed descending the rear stairs from the upper levels of the building. At this same point in time, Kosh was standing guard outside the front entrance to the Stringfellow offices. Seconds later, defendant was intercepted by O’Donnell and Buck exiting from the building.

The physical descriptions of the structure housing the burglarized premises were such as to convincingly tie together this sequence of events. There is little question but that the offices were entered and exited from the rear fire door. Although it would appear that a scattering of employees had already arrived at the building, the floor occupied by the Stringfellow firm was then vacant save the intruder. Absent a common hallway above the ground level, defendant’s use of the rear stairway strongly indicated his presence at the back of some upper floor establishment. Moreover, defendant was found to be in immediate and exclusive possession of a quantity of coins closely resembling those taken from Slatterly’s desk within the confines of the victimized premises, itself, in absence of contrary circumstances, sufficient to give rise to an inference of guilt. People v. Franceschini, 20 Ill2d 126, 169 NE2d 244 (1960).

Defendant however renews his objection to the admissibility of these coins to facilitate that end. We cannot agree. While there existed a disparity between the number of coins missing and the number found on defendant’s person, it is manifest that the witness, Slatterly, could not at all be certain as to the specific quantity of coins taken. Furthermore, this discrepancy, if at all, concerned itself with a difference in quantity and not a difference in kind. In view of defendant’s contemporaneous possession of coins of the same denomination and general description as those recently stolen, we must deem the disparity of insufficient moment to have either adversely affected their relevancy to the point in issue or to have raised a reasonable doubt as to his guilt. People v. Lagios, 51 Ill App2d 440, 201 NE2d 245 (1964). In burglary prosecutions, the precise identification of the property taken is inconsequential if, as in the case of money, the character of the property is such that an exact identification is impossible. People v. Brancztet, 59 Ill App2d 381, 208 NE2d 416 (1965). The description of the particular denomination and issue of the coins missing answered as concisely as possible to those seized from defendant within moments after their taking. Defendant, it would appear, had nothing else in his possession at the time with the exception of a set of personal keys. The link we feel was sufficient to warrant the trial judge’s admission of the half-dollars into evidence. People v. Sellers, 30 Ill2d 221, 196 NE2d 481 (1964); People v. Johnson, 88 Ill App2d 265, 232 NE2d 554 (1967); and People v. Waller, 85 Ill App2d 55, 229 NE2d 298 (1967).

Lastly, defendant submits that the footprint and shoe exhibits were erroneously admitted into evidence without the proper foundation. Relying upon the cases of People v. Kelly, 84 Ill App2d 431, 228 NE2d 561 (1967) and People v. Zammuto, 280 Ill 225, 117 NE 454 (1917) as his authority, defendant predicates his argument upon the absence of evidence suggesting the recent origin of the print, as well as the incompetent lay opinion testimony of Officer O’Donnell to establish the alleged similarity between the two. It is an argument we think inappropriately taken on the facts of the instant case.

In the Zammuto case the testimony of the lone eyewitness had been severely discredited, and the defendants interposed convincing corroborative alibis. Examined in context, the court’s adverse comments relative to the State’s use of a shoeprint comparison to otherwise facilitate the identification of the accused, Caltagerone, was a criticism notably directed to the credibility and not the competence of that evidence, the court citing the absence of some peculiarity about the print discovered in the snow in an area where persons other than the guilty party may have had occasion to walk.

In the instant case, the footprint was found at or near the point of unlawful entry, an area leading out to the rear stairway which defendant was seen traversing within minutes after Kosh overheard the pounding noise. This stairway was seldom, if ever, used by the building personnel. Unlike the Kelly case, simply by virtue of the footprint’s “obvious” presence in the otherwise dust covered area, we think its recent origin could have been fairly concluded by the trial judge. While as defendant argues, the officer did make mention of other footprints in proximity to this area on redirect examination, the record is silent as to whether these prints were or were not the same as the one from which the specimen was taken. In view of these circumstances and the lack of foot traffic at that door, we cannot say that O’Donnell’s failure to describe the basis for his observation with particularity was a defect of sufficient force to foreclose upon the introduction of these exhibits into evidence. People v. Merrit, 29 Ill2d 423, 194 NE2d 292 (1963).

The officer stated only that the footprint and impression left by defendant’s shoe were closely similar based upon what he personally observed. He did not, at any point, purport to represent by an opinion that the two footprints were, in fact, one and the same. Accordingly, the matter was one affecting only the credibility to be attached by the court to the witness’ observation, which determination we are not justified in invading on the record that is before us. People v. Zeravich, 64 Ill App2d 150, 212 NE2d 282 (1965). While again the footprint evidence was circumstantial in nature, the proofs adduced below left room for but one reasonable conclusion, that being the guilt of the accused.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.


author: SCHEINEMAN, J.

text:
    The New York Central Development Corporation, a Delaware Corporation, and Jones & Laughlin Steel Corporation, a Pennsylvania Corporation, Plaintiffs-Appellants, v. Edward J. Byczynski and Helena S. Byczynski, Defendants-Appellees.
    Gen. No. 67-95.
    Third District.
    May 20, 1968.
    Rehearing and petition for certification of importance denied July 16, 1968.

      Peterson, Johnson & Martin, of Princeton, James W. Kissel, of Chicago, and Heyl, Royster, Voelker & Allen, of Peoria, for appellants.
    John J. Wosik, of Henry, Berry & O’Conor, of Streator, and Cassidy & Cassidy, of Peoria, for appellees.
   SCHEINEMAN, J.

The plaintiffs obtained an option to buy 370 acres of land from defendants at a fixed price of $330,000. The contract contained this provision:

“The conveyance of the above premises is conditioned upon conveyance of suitable exchange property to seller. Seller will sell only if such exchange property cannot be acquired by purchaser.”

When the buyers exercised their option as provided in the contract, the sellers declined to close the deal. Plaintiffs then filed this suit in equity praying for specific performance. It was defended on the ground that plaintiffs had not performed their obligation to produce suitable exchange property. The chancellor denied the relief deciding for defendants on the ground principally that the words “acquired by purchaser” mean that the plaintiffs were obligated to acquire and tender suitable exchange property.

When an exchange is contemplated it is surely essential that the party tendering the exchange be able to convey, or cause to be conveyed, the title thereto. To this extent that party must acquire a right to convey. But, there arose a number of questions which cannot be answered by merely reading this paragraph. Who has the right to select the property to be exchanged? To whom must it be suitable? May the plaintiffs tender acreage which the defendants say is too far away or otherwise undesirable to them? May the plaintiffs claim credit on their contract for their costs even if defendants assert the price is too high ?

Surely the parties must have had some understanding on these subjects when they contracted. Yet, the contract does not spell out what they intended, thus leaving both sides room to claim what they think was meant. With two possible answers to these and other questions, the written contract left matters open to dispute unless both sides dealt at all times in good faith.

The rest of the contract throws no light on these questions. The fact is the parties did not write a complete statement of their intentions. The option agreement is incomplete on its face as to various matters which have to be agreed upon. In this situation, evidence of prior negotiations is admissible.

“Whether the written contract was intended to be a complete and final agreement, must be determined from the language of the contract and the circumstances of the case. If it is silent in essential particulars, parole evidence is admissible to establish the missing parts.” Stevens v. Fanning, 59 Ill App2d 285, 207 NE2d 136; Olson v. Rossetter, 399 Ill 232, 77 NE2d 652; Meyer v. Sharp, 341 Ill App 431, 435, 94 NE2d 510; Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 242 Ill 88, 94, 89 NE 723.

“Parole evidence which does not vary or contradict the document under consideration is admissible to establish a fact as to which the instrument is silent.” 18 ILP, Evidence, § 271.

“The intention of the parties, it is true, must govern; but the experience of human affairs teaches the courts that this intention is not to be sought merely on the apparent meaning of the language used, but this language may be enlarged or limited by reference to the circumstances surrounding the parties and the object they evidently had in view.” Pocius v. Halvorsen, 30 Ill2d 73, 78, 195 NE2d 137.

In addition to the line of cases above referred to which permit evidence to be admitted as to prior and contemporaneous negotiations, where it is found that the written agreement is silent in some essential matters, there is another line of cases which refer to the acts of the parties as showing what they believe was intended. Some of these cases are as follows:

“In the construction of a contract it is always allowable to look to the interpretation the parties place upon it, contemporaneously or in its performance for aid in ascertaining its meaning.” Consolidated Coal Co. v. Schneider, 163 Ill 393, 396, 45 NE 126.

“Where the parties to a contract have approved a particular construction of doubtful terms or conditions of the contract, the court will follow the construction which the parties have placed upon it.” Abingdon Bank & Trust Co. v. Bulkeley, 390 Ill 582, 62 NE2d 447.

“There is no more convincing evidence of what the parties intended by their contract than to see what they did in carrying out its provisions.” Department of Revenue v. Jennison Wright Corp., 393 Ill 401, 408, 66 NE2d 395.

“It is a familiar rule of construction, that where the terms of an agreement are in any respect doubtful or uncertain and the parties to it, have by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the courts, in the event of litigation concerning it.” Wood River Drain. and Levee Dist. v. Alton Box Board Co., 26 Ill2d 53, 186 NE2d 49; Pocius v. Halvorsen, 30 Ill2d 73, 81, 195 NE2d 137.

Applying these legal principles to the facts brought out by testimony in this case, we find that the attorney who was later retained by defendants, had drawn up this clause concerning exchange property for the purpose of deferring large capital gains which would be heavily taxed. He owned land in this vicinity and sold an option on it to the plaintiffs and included therein this paragraph. He also used it for other clients. He had told representatives of the plaintiffs they should not attempt to find exchange property since that would simply drive the price up. When the defendants retained him in their transaction he informed them about the exchange clause, its purpose and that he had told the plaintiffs they were not to seek exchange property.

This option contract with the defendants was executed in February, 1965. Thereafter the defendants proceeded to look for property they would deem acceptable. They consulted numerous real estate brokers and inspected farms over a wide area.

There is no possible doubt under the evidence in this case that Mr. Byczynski knew he was to select property suitable to him for exchange purposes. He testified that in the course of his search he actually made offers for three different farms. His offers were rejected.

Months later in September of 1965 the plaintiffs notified defendants they were exercising the option. Thereafter, on September 16, 1965 Mr. Byczynski met with representatives of the plaintiffs. At that meeting he complained that he was not given enough time to locate exchange property and asked for an extension to March 1, 1966.

Since it is established without controversy that defendants were to select exchange property pursuant to their agreement and they acted upon that agreement in an effort to acquire it, it follows that the defense in this case, in which it is asserted that the plaintiffs were supposed to seek out and procure exchange property, was contrary to the facts.

Accordingly the decree entered in this case is reversed and the cause is remanded with directions to enter a decree granting the relief prayed for.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Appellant, v. In the Matter of a Search Warrant Upon the Premises Described as and Located at 5948 West Diversey Avenue, Second Floor Apartment, Chicago, Illinois, Appellee.
    Gen. No. 51,737.
    First District, Second Division.
    May 21, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph A. Garlovsky, Assistant State’s Attorneys, of counsel) for appellant.
    No attorney for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The trial court granted defendant’s motion to suppress the evidence and to quash a search warrant on the grounds that the complaint for search warrant on its face was issued upon evidence secured by illegal eavesdropping. The State appeals, contending that defendant failed to sustain his burden of evidence on the motion to suppress in that no evidence of illegal eavesdropping appears on the face of the complaint for search warrant, and that no evidence was introduced that an eavesdropping device was used.

On December 29, 1965, a Magistrate issued a search warrant upon the verified complaint made by Officer Donald Herion to search the premises of the second floor apartment, 5948 W. Diversey Avenue, Chicago, and to seize scratch sheets, bet slips and other gambling paraphernalia which had been used in the commission of, or which constituted evidence of the offense of gambling. The affidavit was as follows:

“Complainant says that he has probable cause based upon the following facts, that the above listed things to be seized are now located upon the premises set forth above :
“Donald Herion received information from a known and reliable informant who in the past has given Donald Herion reliable and accurate information relative to gambling activities, that this informant has been, and is currently calling in horse bets, to the telephone number of TU 9-3928, and that on 28 December 1965, at about 11:45 a. m., said informant in the company of Donald Herion, went to a telephone and Donald Herion after dialing the telephone number of TU 9-3928, handed the receiver of the telephone to the said informant and he then placed a bet to the person answering the telephone on the first race at the ‘Fairgrounds,’ on a horse named ‘Busy Wac,’ for $2.00 to win. A check of the telephone records reveal this telephone to be listed to one Ralph Klodzinski, of 5948 W. Diversey Ave., 2nd floor in the City of Chicago, State of Illinois.”

Ralph Klodzinski was arrested on December 29, 1965, for gambling offenses. On June 3, 1966, Klodzinski filed a written petition to suppress the evidence and quash the search warrant, alleging:

“That the complaint for the search warrant on its face reveals that Officer Donald Herion was guilty of a violation of Chapter 38, § 14-1-2.”

At the hearing on the motion conducted on that date, counsel for Klodzinski chose to introduce no evidence, stating: “It’s on the face that’s what I allege in my petition.” Officer Herion was present at the hearing, but was not called to testify. After reading aloud the face of the warrant and headnote two of People v. Kurth, 34 Ill2d 387, 216 NE2d 154 (1966), the court sustained the motion to suppress the evidence and quashed the search warrant.

“A motion (to suppress evidence illegally seized) shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant.” Ill Rev Stats, 1965, c 38, § 114-12 (b).

The definitions and elements of illegal eavesdropping are set forth in Ill Rev Stats, 1965, c 38, § 14-1 and § 14-2:

“§ 14-1 (a) An eavesdropping device is any device capable of being used to hear or record oral conversation whether such a conversation is conducted in person, by telephone, or by any other means; . . .
“§ 14-1 (b) An eavesdropper is any person, including law enforcement officers, who operates or participates in the operation of any eavesdropping device . . .
“§ 14-2 A person commits eavesdropping when he:
“(a) Uses an eavesdropping device to hear or record all or any part of any oral conversation without the consent of any party thereto; or
“(b) Uses or divulges any information which he knows or reasonably should know was obtained through the illegal use of an eavesdropping device.”

In People v. Kurth, supra, the Supreme Court held that tape recordings of telephone conversations and oral conversations obtained by use of radio transmitters and tape recorders were inadmissible against one who had not consented to the recording.

Under the statute and the Kurth case, the defendant has the burden of proving use of an eavesdropping device. Use of such a device must be shown in order to establish the offense of eavesdropping. In the Kurth case, the devices used were explicit: radio transmitters, receivers and a tape recorder. An examination of the complaint and search warrant in the instant case reveals that there was no device in the hands of Officer Herion after the telephone call was placed, or that Officer Herion used any such device to hear or record all or any part of an oral conversation. The only object mentioned in the complaint was a telephone. Clearly, a telephone itself does not constitute a device banned by the eavesdropping statute. The face of the search warrant fails to reveal any use of illegal eavesdropping.

Accordingly, the order of the Circuit Court is reversed, and the cause remanded with directions to deny the motion to quash the search warrant, and for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded with directions.

BURKE, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    Estate of Angela Medina, Deceased. Ysmael A. Medina, Petitioner-Appellant, v. Bernice Medina Kramer, Respondent-Appellee.
    Gen. No. 52,449.
    First District, Second Division.
    May 21, 1968.

      Maurice M. Loman, of Chicago, for appellant.
    Eugene P. Meegan, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

On March 8, 1967, Bernice Medina Kramer filed a petition representing that on January 18, 1967, Angela Medina died; that her estate consisted of a cause of action for wrongful death and that she left as heirs, her mother, who is the petitioner, Ysmael A. Medina, her father and Debra Medina, her 2%-year-old sister. The petitioner asked that letters of administration issue to her. On April 12, 1967, Ysmael A. Medina, the father of the decedent, filed a petition asking that he be appointed as the administrator of the estate of Angela Medina. On April 12, 1967, after a hearing the court ordered that letters of administration issue to Bernice Medina Kramer, the mother. The father, Ysmael A. Medina, appeals.

Supreme Court Rule 828 (c) provides that if no verbatim transcript of the evidence or proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection, and that the court, holding hearings if necessary, shall promptly settle, certify and order filed an accurate report of proceedings. The report of proceedings, based on recollection, shows that the lawyers of the respective parties and Ysmael A. Medina, the father of decedent, were present.

The attorney for the mother stated that she had filed an action for the wrongful death of Angela and for personal injuries to Debra Medina, a minor, against Schriber Trucking Co., and John Hren, Jr.; that one of the allegations in the suit is that plaintiff was not guilty of contributory negligence; that Angela Medina and Debra Medina were passengers in the car driven by their father, Ysmael A. Medina; that “I am informed that it is his [Ysmael A. Medina] alleged failure to stop at a through street that resulted in the said accident in which his four-year-old child was killed; that if this charge is true, he would be guilty of wilful and wanton conduct; that it might be necessary to sue him and make him a party-defendant; that it would be very foolish to jeopardize the case to have the said Ysmael A. Medina act as Administrator of the estate of Angela Medina to sue himself individually.”

The lawyer for the father of the decedent denied that his client “failed to stop at a stop sign as a direct cause of the accident.” The parties stipulated that the father and mother are divorced and that the decree, following the agreement of the parties, gave custody of the children to the mother, with visitation rights to the father. The court said that it was unnecessary for the attorney for the father to read the contents of an opinion which would clarify the situation as she was familiar with the citation. In denying the petition for the appointment of the father and granting the petition for the appointment of the mother, the court said that “it is to the best interest of the estate to appoint the mother as administrator.”

The father states that the court appointed the mother as administrator without a full hearing or trial. The burden is on the appellant to bring to this court a record which will establish reversible error. The report of proceedings is certified as constituting all that transpired before the court. There was no dispute as to the facts. Section 97 of the Probate Act (c 3, § 97, Ill Rev Stats 1967) vests the court with the authority to make the appointment when two equally entitled are claiming. The record does not show that the court erred in making the appointment of the mother. Therefore the order is affirmed.

Order affirmed.

McNAMARA and LYONS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Bock, Defendant-Appellant.
    Gen. No. 50,846. (Abstract of Decision.)
    First District, Second Division.
    May 21, 1968.
    Bellows, Bellows & Magidson, and Herbert Barsy, of Chicago, for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Oliver Ferguson, and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


text:
    Marion Busch Simon, Plaintiff-Appellant, v. James C. Jones and Mary Sue Jones, His Wife, DefendantsAppellees.
    Gen. No. 51,787.
    First District, Third Division.
    June 6, 1968.

      J. Edward Jones, of Blue Island, for appellant.
    Ebers, Metskas & Bjorvik, of Chicago, for appellees.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiff, Marion Busch Simon, filed an action for specific performance of a real estate contract. Defendants, James C. and Mary Sue Jones, filed a motion to strike the complaint. That motion was denied and defendants answered. Plaintiff then filed a motion for summary judgment supported by affidavits. Defendants’ objections to the motion for summary judgment were overruled and a decree for specific performance was entered in favor of plaintiff on February 23, 1965.

A motion by defendants to vacate that decree was filed March 12, 1965, and sustained on March 30th, and counteraffidavits to plaintiff’s motion for summary judgment were filed. Plaintiff filed a motion to strike the counteraffidavits, and on May 26, 1965, that motion was denied, as was plaintiff’s motion for summary judgment.

On October 21, 1965, the following order was entered:

“This cause coming on to be heard upon the regular call of cases, and there being none present to Answer;
“IT IS HEREBY ORDERED that the entitled cause be and the same is hereby dismissed for want of Prosecution.”

Without requesting the trial court to vacate the order of dismissal, plaintiff filed a notice of appeal directed to the Supreme Court of Illinois. The case was transferred to this court and was assigned number 51,443. Defendants filed a motion to dismiss the appeal, which was allowed on June 30,1966.

The plaintiff then filed a petition for leave to appeal within one year (assigned number 51,787) which was allowed. The record, abstract and brief from case number 51,443 were incorporated by reference into this case. Defendants filed a motion to dismiss the appeal which motion was taken with the case.

The grounds set forth in that motion were that the question involved has become moot because a portion of the property has been conveyed to the county; that plaintiff cannot seek reversal of an order (of October 21, 1965) which she admits was properly entered by the trial court, and that the abstract does not contain the orders appealed from.

Plaintiff argues that she was standing on her motion for summary judgment and therefore welcomed the order of dismissal, inasmuch as it was necessary that there be a final and appealable order. She argues that this order must be reversed so that this court can review the trial court’s denial of her motion for summary judgment. On the other hand, defendants argue that a denial of a motion for summary judgment is not reviewable. They cite Home Indemnity Co. v. Reynolds & Co., 38 Ill App2d 358, 187 NE2d 274, wherein a party sought review of a denial of its motion for summary judgment after a trial on the merits and a verdict in favor of the other party. The court held that the ruling was not reviewable and said on page 367:

“We hold that if a motion for summary judgment is improperly denied the error is not reversible for the result becomes merged in the subsequent trial. Therefore, even if an examination of the affidavits, counteraffidavits, depositions and exhibits were to lead to the conclusion that either one or both of Home Indemnity’s motions should have been granted it would avail nothing, for the error cannot be reviewed.”

Plaintiff argues that the instant case differs from the Home Idemnity case, supra, in that there was no trial on the merits because she chose to stand on her motion for summary judgment and proceed no further with the presentation of her case. (This position of plaintiff’s is not clear from the record in that there is no showing of the intention to stand on the motion for summary judgment.) She analogizes this to the method in preCivil Practice Act days whereby a plaintiff would stand by her declaration if a demurrer thereto had been sustained. In those cases plaintiff could elect to stand by her declaration and the suit would therefore be dismissed. Plaintiff could then appeal the ruling on the demurrer as well. However, in those cases the dismissals were final rulings on the legal sufficiency of the declaration. In the instant case the dismissal was entered as a matter of routine procedure when plaintiff did not appear for the trial call. She did not seek to have that order vacated by the trial court. There was no final ruling on the merits of the claim, although plaintiff had the opportunity to present her evidence and obtain such a ruling. When the court denied the motion for summary judgment it did not say that plaintiff had no valid cause or claim, but merely held that there was a genuine issue of material fact which must await the presentation of evidence for a determination.

Had plaintiff moved to dismiss her case after the court’s denial of her motion for summary judgment, she could not have appealed from the final order of dismissal because it would have been entered on her own motion. Neither could she obtain review of the denial of the motion for summary judgment because she would first have to obtain a reversal of the order of dismissal which bears no relation to the merits of the case and could not be reversed merely because of an erroneous interlocutory ruling by the trial court on the merits. There is no sound reason why an order denying a motion for summary judgment may be reviewed after a dismissal of the case for want of prosecution when an identical order is not reviewable after an ensuing trial and judgment thereon. Plaintiff was not in any way barred from proceeding to a full hearing of her case by the order denying her motion, and if such procedure were to be condoned it would give an unfair advantage to the party who sought to avoid a trial on the merits.

The law is clear that a denial of a motion for summary judgment, not being a final order, is not appealable. (LaSalle Nat. Bank v. Little Bill “33” Flavors Stores, Inc., 80 Ill App2d 298, 225 NE2d 465; Kern v. Chicago & E. I. R. Co., 31 Ill App2d 300, 175 NE2d 408.) Plaintiff cannot by refusing or failing to proceed, thereby inviting a dismissal of her suit, accomplish indirectly what cannot be done directly. A denial of a motion for summary judgment is not, at the time entered, and never becomes a reviewable order. If an order denying a motion for summary judgment were reviewable as a matter of right after dismissal of the suit for want of prosecution, a plaintiff could effectively obtain review of any interlocutory order by failing to go forward with the presentation of his case.

Plaintiff offers no reason in support of her request for a reversal of the order of October 21, 1965, dismissing her case other than it would be necessary to obtain a review of the order of March 30, 1965. The latter (denying summary judgment) we cannot review. The order of October 21, 1965, according to plaintiff, was properly entered. That leaves this court with nothing before it to review and the appeal must be dismissed. Because we have reached this conclusion we need not consider the other grounds set forth in defendants’ motion to dismiss the appeal, or the contention of plaintiff based upon alleged errors of the court in denying the motion for summary judgment.

Appeal dismissed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Marshall Field & Company, a Corporation, PlaintiffAppellee, v. Dr. James J. Green and Pauline Green, Defendants-Appellants.
    Gen. No. 52,803.
    First District, Fourth Division.
    May 29, 1968.
    Rehearing denied June 17,1968.
    James M. P. D’Amico, of Chicago, for appellant.
    No appearance made in behalf of appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered in the Circuit Court on October 19, 1967, denying the motion of Dr. James J. Green and Pauline Green, defendants, for summary judgment. A suit had been brought by Marshall Field & Company as plaintiff against the defendants on an account for goods and services performed pursuant to a decorating contract relating to defendants’ home. The defendants filed a defense to the complaint, then moved for a summary judgment in their favor, which was denied by the court. Defendants then took this appeal, asking that the order of the trial court be reversed.

In this court the defendants filed a brief. No reply brief was filed by the plaintiff.

The question this court must first determine is whether or not the order entered in the trial court was an appealable order. A court’s order refusing to enter a summary judgment is not an appealable order. See Simon v. Jones, 96 Ill App2d 1, 238 NE2d 259. It is true that the trial court entered a draft order denying defendants’ motion for a summary judgment, in which order it was stated: “It is further ordered that the court finds no just delay for the immediate execution of this order or appeal therefrom.”

It is necessary to consider section 50(2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 50 (2)). Our opinion in Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32, dealt with this question at some length, reaching a conclusion adverse to the position of defendants here in seeking a review of the instant order. Shortly thereafter, in Davis v. Childers, 33 Ill2d 297, 211 NE2d 364, the argument was made that the finding of the court that there was no just reason for delaying appeal, was unavailing where the judgment entered was not a final judgment, and the court pointed out that section 50(2) applies only where multiple parties or multiple claims for relief are involved. The court further held that the section was not designed to stimulate appeals from orders that dispose of less than all of the issues in an action involving a single claim, and that a trial court cannot confer appellate jurisdiction by a finding that there is no just reason for delaying enforcement or appeal. Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787; Hanley v. Hanley, 13 Ill2d 209, 148 NE2d 792. Also see City of Vandalia v. Tate, 66 Ill App2d 488, 213 NE2d 787.

On its own motion this court must dismiss the appeal.

Dismissed.

DRUCKER and ENGLISH, JJ., concur.


author: GOLDENHERSH, J.

text:
    Michael J. Stock and Amanda Rose Stock, PlaintiffsAppellees-Cross-Appellants, v. Reliance Insurance Company, Defendant-Appellant, and Pekin Insurance Company, Defendant-Cross-Appellee.
    Gen. No. 67-61.
    Fifth District.
    May 31, 1968.

      Clausen, Hirsh, Miller & Gorman, of Chicago, and Murray & Stephens, of Centralia (Jacob T. Pincus, John W. Morrison, and James T. Ferrini, of counsel), for appellants.

      John E. Jacobsen, Craig & Craig, of Mt. Vernon, and Wham & Wham, of Centraba, for appellees.
   GOLDENHERSH, J.

This is an action for declaratory judgment brought by plaintiffs, Michael J. Stock, hereafter referred to as Stock, and Amanda Rose Stock, to determine the rights and liabilities of the parties under policies of insurance issued by the defendants, Reliance Insurance Company, hereafter called Reliance, and Pekin Insurance Company, hereafter called Pekin, and to recover monies allegedly due plaintiffs under the policies. The Circuit Court of Marion County, after trial without a jury, entered judgment in favor of plaintiffs and against Reliance in the amount of $6,066.13, held that there was no valid contract of insurance between plaintiffs and Pekin, and entered judgment for Pekin. Reliance appeals from the judgment, and plaintiffs have cross-appealed. ■

On November 23, 1963, Reliance had issued its “homeowner’s” policy to plaintiffs providing various coverages at premises described as 10 Phyllis Drive, Centraba.

Plaintiffs, in order to complete the construction of a dwelling on the premises, borrowed money from William H. Roffman, hereafter called Roffman. To secure the loan, the property was conveyed to Roffman, his wife and son, and on February 15, 1964, they, as vendors, entered into a contract for deed with the plaintiffs as vendees. On that date an endorsement was made to the Reliance policy naming the Roffmans as “additional assureds.”

As amended by endorsement dated February 1, 1965, the Reliance policy provided the following coverages: for the dwelling house, $20,000; for personal property, $8,000; for additional living expenses, $2,000.

The evidence shows that at the time plaintiffs obtained the loan from the Roffmans it was estimated it would take a year to complete construction of the dwelling. Plaintiffs, at the suggestion of Charles Rude, Jr., of the Rude Insurance Agency, procured a builders’ risk policy to protect the interests of the Roffmans. This policy was issued by Pekin, through the Rude Agency. While this policy was in force, the building suffered water damage. A claim was presented, and was denied by Pekin. Plaintiff, Stock, was much perturbed by the denial of liability, and told Charles Rude, Jr. that he did not think “Pekin was too good a company,” but nevertheless, did not cancel the policy, and did not at any time direct Mr. Rude to refrain from placing other insurance with Pekin. The builders' risk policy expired in November, 1964.

The testimony shows that Roffman, over a period of some years, had purchased real estate contracts, and insurance, through the Rude Agency. He had instructed the agency that it was never to allow a policy of insurance to expire, or be cancelled, on any property on which he had a loan. Rude had been instructed that when the property in question qualified, he was to obtain a “homeowner’s” type policy, since that type afforded a greater range of protection at a low premium.

The contract for deed contains the following provision:

“The Purchasers shall also procure insurance on the building or buildings now on said lot, or that shall hereafter be erected on said lot for a sum at least equal to the amount due on this contract on the date of its execution, in some good company or companies to be selected by the Sellers, such insurance to be for the benefit and for the further security of the Sellers ...”

At no time did the indebtedness exceed the amount of insurance provided on the dwelling in the Reliance policy.

Charles Rude, Jr. testified that he was a real estate and insurance broker. During the period in question he represented several insurance companies, one of which was Pekin. On February 15, 1965, he prepared and submitted to Pekin an application for a “homeowner’s” policy. This was done because of Roffman’s standing orders with respect to insurance. There was no specific request for the insurance by either Stock or Roffman, and neither of them signed the application. At that time Rude did not know of the Reliance policy, and the application states there was no other insurance in force. The policy shows Charles H. Rude, Jr. to be the issuing agent.

Mr. Rude testified that under the rules and regulations of the Illinois Department of Insurance governing the writing of “homeowner’s” policies, he could not have written the policy in the name of the Roffmans without naming the plaintiffs as insureds, because Roffman did not live in the house. It was his intention to insure the interests of both the Roffmans and the plaintiffs.

He testified that in the ordinary course of doing business with Pekin, policies had been issued without signed applications.

Mr. Rude testified further that when the policy was issued he delivered a copy to Roffman, and kept Stock’s copy, intending to give it to him when he came in to make a payment.

The Pekin policy provides the following coverages: for the dwelling, $15,000; unscheduled personal property, $6,000; and additional living expenses, $1,500. Plaintiff, Michael J. Stock is the named insured, and William H. Roffman, described as “titleholder” is named as “additional insured.”

On March 1,1965, a fire occurred, destroying the dwelling and its contents. Plaintiffs did not learn of the issuance of the Pekin policy until after the fire.

Shortly after the loss, plaintiffs, Roffmans, and a representative of General Adjustment Bureau, Inc., acting for both defendants, executed a document captioned “Agreement as to actual cash value and amount of loss” in which it is agreed that the losses resulting from the fire are in the following amounts: the dwelling, $21,000; contents, $10,000; additional living expenses, $938, a total of $31,938. The agreement contains a provision to the effect that by agreeing upon the amount of the loss defendants do not promise to pay any sum whatsoever, the agreement creates no liability, and the parties do not thereby waive any rights they might otherwise have. The parties also executed a separate nonwaiver agreement which provides that by agreeing upon the amounts of the loss the parties waived no rights or defenses.

On the date of the fire plaintiffs owed the Roffmans $13,117.05. Of this amount Reliance and Pekin paid %ths and %ths, respectively, being the proportion of the loss that the amount of coverage afforded by each insurer bore to the total amount of insurance in force on the dwelling.

On September 21, 1965, shortly after Pekin paid the Roffmans its proportionate share of the sum due them, the Redeker Agency, successor to the Rude Agency, surrendered the policy for cancellation. On December 3, 1965, Pekin wrote the Redeker Agency advising it that the policy had been cancelled as of September 21, 1965. In the letter it stated, “Since our policy should not have been written and it should have been written, if any, to protect the interest of the mortgagee on a fire policy, we feel that there is an addtional return premium due. . . .”

Plaintiffs’ loss was $18,820.95, the difference between $31,938, and the $13,117.05 paid the Roffmans. Reliance tendered plaintiffs $10,754.82, being %ths of their loss. Pekin refused to pay any portion of plaintiffs’ claim. The amount of the judgment entered against Reliance is the difference between the amount tendered plaintiffs and $16,820.95, the sum remaining unexpended under the policy after deducting the amount which Reliance paid the Roffmans. Assuming affirmance of the judgment, plaintiffs suffer an uncompensated loss of $2,000.

In a comprehensive memorandum in which it reviewed the evidence and made findings of fact, the trial court held that in order for a valid policy of insurance to have been issued to plaintiffs, Rude must have been authorized by plaintiffs, their agent or representative to apply therefor; there was no such authority given Rude either expressly or impliedly, and therefore, there was no valid contract of insurance between plaintiffs and Pekin.

Reliance contends that Pekin issued a valid and binding policy and its liability is limited to %ths of the loss.

Plaintiffs contend that the trial court erred (a) in holding that Pekin was not liable to them under its policy, (b) in rejecting evidence of additional living expenses incurred by reason of defendant’s refusal to make prompt payment of the. sums due them, (c) in its refusal to award attorneys’ fees under the provisions of chapter 73, section 767, Ill Rev Stats 1965, and (d) in refusing to award interest on the sums found to be due.

Pekin contends that (a) there was no contract between it and plaintiffs, (b) there was no binding or valid insurance policy because there was no meeting of the minds of the parties, (c) an insurance contract must be mutually binding upon the parties and since there was no obligation on the part of the plaintiffs, there was none on the part of Pekin, (d) Rude had no authority to apply for a policy for which plaintiffs had not applied and Pekin is not bound by Rude’s actions beyond the scope of his authority, (e) the policy was not effectively ratified by plaintiffs, (f) making a claim after loss cannot ratify a policy which was not valid, and (g) ratification could not be effected through a claim handled under a nonwaiver agreement.

Assuming the trial court to have correctly found that Rude was not in any manner authorized to apply for insurance on behalf of plaintiffs, we do not find such authority to be essential to plaintiffs’ recovery on the policy. From our examination of the authorities we conclude that a contract of insurance made on behalf of an insured, without his knowledge or authority, may be ratified by the insured, even after a loss has occurred, provided the insurer has not meanwhile withdrawn its previous assent. American Surety Co. of New York v. Martinez (Court of Civil Appeals of Texas), 73 SW2d 109; Clower v. Fidelity-Phenix Fire Ins. Co. of New York, 220 Mo App 1112, 296 SW 257; 26 CJ 69; 44 CJS 1091; 29 Am Jur 554; 29A Am Jur 151; see annotations 76 ALR 1174, 1177 and 121 ALR 1428. Although the cases discussed in the ALR annotations, for the most part, involve the issue of whether such ratification, after a loss occurs, affects coverage under a preexisting policy which contains a clause barring other insurance, the opinions recognize the validity of the above stated rule.

The evidence shows that plaintiffs gave notice of the loss and made a claim against Pekin promptly upon learning of the existence of the coverage, and there is no evidence that Pekin, at that time, had taken any action which could affect its acceptance of the risk. We need not discuss the effect, if any, of Pekin’s attempt, by unilateral action, to convert its “homeowner’s” policy to a fire policy covering the mortgagee’s interest in the property, nor do we find it significant that plaintiffs’ claim against Pekin was handled under a nonwaiver agreement. The efficacy of plaintiffs’ act of ratification is not affected by what Pekin did after the claim was presented; only withdrawal of assent prior to plaintiffs’ making their claim would serve to avert ratification. Upon the facts shown, we hold that plaintiffs effectively ratified the issuance of the policy.

Pekin argues that if it had known of the Reliance policy it would not have accepted the risk. We do not find this contention persuasive in view of its having acted upon an unsigned application prepared by its agent. Assuming misrepresentations in the application, they would not serve to defeat recovery. Lycoming Fire Ins. Co. v. Jackson, 83 Ill 302.

In support of their cross-appeal plaintiffs contend that the trial court erred in excluding evidence of additional living expenses in excess of the amount shown in the agreement fixing the amount of the loss. They argue that the agreement was made in anticipation of prompt payment, and defendants’ refusal to pay the sums due caused them to incur additional expense. They further contend that because of the delay in payment of the sums due Hoffman, they became liable for, and paid, additional interest on their indebtedness to him.

Plaintiffs do not cite, and we have not found, any authority which would support these contentions, and we hold that the trial court correctly rejected them.

We have considered plaintiffs’ arguments in support of their claim for allowance of attorneys’ fees, and are not prepared to say that the record compels a finding that defendants’ conduct in this matter was vexatious, or without reasonable cause. Accordingly, the trial court did not err in its refusal to allow plaintiffs’ claim for attorneys’ fees.

We turn now to plaintiffs’ contentions with respect to interest. Each policy contains the following provision:

“When loss The amount of loss for which this Corn-payable pany may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.”

Although a letter admitted in evidence acknowledges that a proof of loss was submitted to Pekin, no proofs of loss are contained in the record. Upon authority of Di Leo v. United States Fidelity & Guaranty Company, 50 111 App2d 183, 200 NE2d 405, we hold that interest should be awarded upon the sums due commencing 60 days after the submission of proofs of loss to the respective defendants.

For the reasons herein set forth, the judgment of the Circuit Court of Marion County is reversed and the cause is remanded to the Circuit Court of Marion County with directions to enter judgment in favor of plaintiffs and against the defendant, Reliance Insurance Company in the amount of $10,754.82, being %ths of plaintiffs’ loss, the sum tendered by Reliance, together with interest computed on said sum, if any be due, at the rate of 5% per annum, commencing 60 days after submission of proof of loss until paid, and to enter judgment in favor of plaintiffs and against Pekin Insurance Company in the amount of $8,066.13, together with interest computed on said sum, at the rate of 5% per annum commencing 60 days after submission of proof of loss, and for such further proceedings as are consistent with this opinion.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Helga Neubauer, Plaintiff-Appellee, v. Coca Cola Bottling Company of Chicago, Defendant-Appellant.
    Gen. No. 67-124.
    Second District.
    May 9, 1968.
    Rehearing denied and supplemental opinion July 17, 1968.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago, for appellant.
    Lidschin & Pucin, and Michael Nemeroff, of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is a products liability case brought by Helga Neubauer against the Coca Cola Bottling Company of Chicago for injuries allegedly sustained by reason of the consumption of part of a bottle of Coca Cola, herein called Coke, which contained a foreign substance. The plaintiff charged that the defendant was the bottler and distributor of the Coke in question. The jury returned a verdict for the plaintiff, from which the defendant appeals.

The defendant contends that the trial court erred in refusing to grant its motions for directed verdict or for judgment notwithstanding the verdict. The basis for such motions was that the plaintiff failed in her proof to establish that the defendant manufactured or sold the bottled Coke in question, or that any deleterious condition existed in the product when and if it left the supervision of the defendant, or that the bottle of Coke was not tampered with after it left the control of the defendant. In the alternative, the defendant contends that the judgment should be reversed and remanded for a new trial on the basis of evidentiary and other errors occurring at the trial.

The plaintiff testified that on Saturday, June 4, 1966, she and her husband, with the help of two other men, were moving into a new apartment. At about 11:00 a. m., she went to Tony’s Liquor Store, which was nearby, where she selected six bottles of Coke and six bottles of Seven-Up from a cooler, and brought them back to the new apartment. She opened four of the Coke bottles, using the same procedure and attaining the same result which she had experienced in the past when opening other bottles of soft drinks. The plaintiff’s Coke was cold and carbonated; she quickly drank about one-half of it and noticed nothing unusual about its taste.

One of the men, who was helping the plaintiff and her husband move, noticed something unusual in the plaintiff’s Coke. An examination revealed a dark film on the inside of the bottle, with particles floating in the Coke and sediment at the bottom.

The plaintiff was well until approximately 6:00 p. m., when her stomach started to hurt. Later she became nauseated and had diarrhea. She was sick on Sunday, went to work on Monday, but was not able to do much. On Tuesday, she again went to work but was forced to leave at noon, and went to the hospital where she remained until the following Tuesday, June 14,1966.

The bottle in question was a ten-ounce bottle. An officer of Tony’s Liquor Store testified that he bought his Coke from the defendant but had never purchased a ten-ounce bottle from it. An employee of the defendant testified that the defendant is the only company bottling and distributing Coke to dealers in Lake County — the area in which Tony’s Liquor Store is located. Employees of the defendant also testified that no ten-ounce bottles were sold to Tony’s Liquor Store.

It is the defendant’s contention that the plaintiff’s evidence failed to establish that the defendant manufactured or bottled the Coke in question. It may be conceded that this is the first essential element of the plaintiff’s case. Welch v. Coca-Cola Bottlers’ Ass’n (Tex), 380 SW2d 26, 30 (1964); Hart v. Coca-Cola Bottling Co., 119 Ohio App 90, 188 NE2d 817, 818 (1963); 36A CJS, Food, § 69(1), p 921.

The defendant relies, primarily, on the fact that the Coke in question was in a ten-ounce bottle; that the store owner and the defendant’s employees testified that ten-ounce bottles of Coke were not sold to the store; that the defendant’s witnesses stated that ten-ounce bottles are sold to business entities where there is on-the-premises consumption through coin operated coolers, and to certain other outlets for resale in case lots as leader items.

It is not denied, however, that the defendant is the only Coca Cola bottler and distributor in this area; that Tony’s Liquor Store purchased Coke from the defendant; or that the plaintiff testified, unequivocally, that she purchased the Coke from Tony’s Liquor Store. The proximity of the store to the apartment renders it somewhat logical that she would get the Coke there. There is no reason for the plaintiff to testify falsely concerning where she purchased the Coke, and it is not likely that she would forget where she purchased it.

We cannot say that the plaintiff’s testimony, and the further evidence that the defendant was the exclusive distributor in the area, and that Tony’s Liquor Store purchased its Coke from the defendant, is of insufficient probative value to show that the Coke in question was bottled by the defendant. The direct, positive evidence relative to the ten-ounce bottle was conflicting. From this evidence the jury might well have determined that a ten-ounce bottle was mistakenly delivered to Tony’s Liquor Store by the defendant. Whatever else it may have determined on the basis of these facts, there was adequate evidence for a jury to decide that the Coke in question was bottled and sold by the defendant.

Unlike Welch v. Coca-Cola Bottlers’ Ass’n, supra, cited by the defendant, there was no evidence in the case at bar that any other Coca Cola bottler sold or distributed Coke in the defendant’s exclusive franchise area.

In order to hold the defendant — a remote seller— liable, the plaintiff need not prove negligence but must establish as in any other products liability case: (1) that her injury resulted from a condition of the product; (2) that the condition was an unusually dangerous one, and (3) that the condition existed at the time the product left the manufacturer’s control. The plaintiff must also prove the exercise of due care for her own safety. People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 196, 226 NE2d 6 (1967); Suvada v. White Motor Co., 32 Ill2d 612, 623, 210 NE2d 182 (1965).

The defendant strongly suggests that the third requisite listed above has not been met. In a food products case, such as this one, where the product is contained in a bottle with a crown cap, proof that an unusually dangerous condition existed at the time it left the defendant’s control may be met in either one of two ways: by proof that there was no reasonable opportunity for tampering with the bottle; or, if there was such an opportunity, then by proof that there actually was no tampering. Harris v. Coca-Cola Bottling Co., 35 Ill App2d 406, 415, 183 NE2d 56 (1962); Sharpe v. Danville Coca-Cola Bottling Co., 9 Ill App2d 175, 178, 132 NE2d 442 (1956) ; Williams v. Paducah Coca Cola Bottling Co., 343 Ill App 1, 11, 98 NE2d 164 (1951).

It must be conceded that there was less than an abundance of proof on either of these issues. There was no evidence as to the manner of delivery to, or the storage of the Coke at Tony’s Liquor Store. By the plaintiff’s own testimony, the Coke was obtained from a cooler in the store which was accessible to the general public. It cannot be said that there was an absence of reasonable opportunity to tamper with the bottle. Williams v. Paducah Coca Cola Bottling Co., supra.

The question remains as to whether there was sufficient proof that in fact there had been no tampering. The plaintiff’s proof on this issue consisted of her testimony that the bottle opened in a normal fashion; that it was carbonated, and it did not taste unusual. In Heimsoth v. Falstaff Brewing Corp., 1 Ill App2d 28, 116 NE2d 193 (1953), where the court held that it was error to direct a verdict for the defendant at the close of the plaintiff’s case, the fact that the bottle of beer which contained a foreign substance foamed upon being opened, was considered as significant. At page 35, the court stated that the foaming of the beer upon the bottle being opened, was a circumstance inconsistent with tampering. In Sharpe v. Danville Coca-Cola Bottling Co., supra, at page 180, the court stated that the plaintiff’s testimony that the Coke tasted flat “is an important circumstance in that it supports the inference that the bottle cap had been loosened permitting air to enter and thus destroying carbonation.”

While the burden of proof is on the plaintiff, this burden is to establish the essential elements of her case by a preponderance of the evidence. In a case where there is an opportunity to tamper with a bottle, proof that there was in fact no tampering, does not require that the plaintiff shoulder the impossible burden of tracing and accounting for a particular bottled product from the time it is sealed to the time it is consumed. Of necessity, the plaintiff’s proof must, in the great majority of such cases, be circumstantial. Evidence that the cap opened in the normal fashion; that the Coke tasted normal and not flat, and that it was carbonated, was sufficient for a jury determination of whether or not the Coke had, in fact, been tampered with.

While the plaintiff did not offer an extensive quantity of evidence on the several elements essential to sustain her case, the defendant’s contention that the trial court erred in refusing to direct a verdict or to grant it a judgment notwithstanding the verdict, does not call upon us to substitute our judgment for that of the jury. It only calls upon us to determine whether all of the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored the defendant that no contrary verdict based thereon could ever stand. We cannot say that such is the case. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

Dr. George B. Callahan, the plaintiff’s attending physician, testified on her behalf. He first saw her at the hospital on June 7, 1966, where he took a history of her condition, which coincided with her testimony at the trial. He diagnosed her condition as acute gastrointernal colitis, made the necessary tests and successfully treated her. In response to a hypothetical question, he stated that in his opinion, based on a reasonable degree of medical certainty, the drinking of a portion of Coke in question was the causative agent of the plaintiff’s ill-being.

The plaintiff called a biochemist as a witness. He had examined the Coke in question during the latter part of April, 1967 — almost one year after the incident. The defendant contends that it was error to permit this witness to testify as to the findings of his tests and examination.

The plaintiff testified that she recapped the bottle with a rubber stopper about an hour after she drank from it. The bottle remained capped, and, for the most part, refrigerated until it was turned over to the biochemist for examination. The plaintiff testified that, except for that portion of the Coke removed by him, the physical appearance of the remaining contents of the bottle was the same at the time of the trial as it was on the day when she drank part of it.

The biochemist testified that his examination of the Coke disclosed a dead mold known as rhizopus — a slimy mold; and that the growth of the mold was dense and was of the type customarily found in liquid. He further stated that at the time of the examination the rhizopus was not viable; and that he could not state when the mold was alive. He also testified that there is a wide variety of this type of mold and that some varieties are dangerous and “will produce untoward effects” when consumed in food or drink, and others will not. He could not state from his tests whether this particular mold would make a person ill.

The trial court refused to strike the testimony of this witness, and stated that the defendant’s objections were to the weight to be accorded the testimony rather than to its admissibility. The court expressed doubt as to whether the testimony helped the plaintiff’s case.

As to the length of time which elapsed between the date of the incident and the date of the examination, the cases cited by the defendant, relating to experiments conducted after an incident, in which it is sought to simulate conditions and to show by experiment that a given thing either could, or could not, have happened, are distinguishable. In such cases it must appear that the essential conditions of the experiment are the same as those existing at the time of the incident in order for the experiment to be admissible. Hammer v. Slive, 35 Ill App2d 447, 454, 455, 183 NE2d 49 (1962). Such cases, however, are not particularly helpful in determining whether the results of tests on allegedly contaminated foods may have relevancy in a case.

In Tiffin v. Great A. & P. Tea Co., 18 Ill2d 48, 162 NE2d 406 (1959), which affirmed 20 Ill App2d 421, 156 NE2d 249 (1959), the court had before it the question of contamination of a ham. On June 13, 1953, certain members of a family ate the ham in question. Shortly thereafter, they all became ill and one of them died. On June 17, certain tests of the ham indicated that bacteria were present. The Court observed, however, at page 59, that these tests did not show when the contamination occurred. The facts in the case were: the ham was not in a sealed container; it was purchased on June 11; it was taken to another person’s home and kept in the refrigerator until approximately 6:30 a. m. on June 12; it was then cooked until about noon and taken to the plaintiffs’ home where it cooled at room temperature until about 5:00 p. m. — the air temperature that day averaging 79 to 96 degrees; enough meat was then sliced from the small end of the ham to feed seven persons, none of whom became sick; the ham was then placed in the refrigerator until the following morning — June 13; at noon that day the ham and other foods were eaten, and shortly thereafter, the persons who ate the ham became ill; the following day — June 14 — samples of the ham were taken, and they were mailed, unrefrigerated, to Springfield where the tests were taken on June 17. The trial court had refused to admit the report of the test in evidence because of the remoteness of the examination. This ruling was not appealed.

However, judgment was entered against the defendant, from which it appealed, claiming that the trial court should have granted its motions for a directed verdict. The Appellate and Supreme Courts referred to the results of the test as though they had been admitted in evidence. Both reviewing Courts held that the trial court erred in denying the motions for a directed verdict. The Courts observed that on June 12, seven persons ate the ham without any ill effect — a strong indication that it was not then contaminated. They also observed, among other things, that the ham had been unrefrigerated at least two days prior to the test, and there was a particularly strong suggestion, under all of the facts, that the ham may have become contaminated after it was cooked and while it was cooling.

In Bowman v. Woodway Stores, 345 Ill 110, 177 NE 727 (1931), also cited by the defendant, the court again had before it only the question of whether a verdict should have been directed for the defendant where “Pet” milk was alleged to have been the cause of the illness and death. The evaporated milk had been mixed with water from a cistern; the unused portion of the milk was destroyed; the milk had no peculiar taste or odor; and the can had no unusual appearance. The can, together with other cans, was examined three months later by an analytical expert who found no ptomaine, and was of the opinion that had there been any bacteria or poison in the can on the day in question, the spoiled condition would have manifested itself by a bulging of the can and by taste and odor.

Neither of the above cases established that the tests conducted by the witness were not relevant. They indicated that a verdict should be directed for the defendant: (1) absent competent evidence that the product in question was contaminated; or, (2) where there was evidence of contamination, then absent further competent evidence that the product was in such condition when it left the defendant’s control.

In the case before us, the plaintiff testified that the physical appearance of the contents of the bottle was the same at the time of the trial as it was on the day she drank from it. She, and others, testified relative to the sediment and particles in the Coke, and to the slime on the inside of the bottle.

In view of all of the evidence, we believe the trial court was correct in permitting the testimony of the biochemist to stand. The evidence was relevant with respect to whether the plaintiff was injured by reason of a foreign substance in the Coke at the time she drank it. There was sufficient additional evidence to render his testimony both relevant and admissible: it was for the jury to determine its probative value.

The defendant contends that comments by the court and misconduct of the plaintiff’s counsel deprived it of a fair trial. The defendant’s counsel asked the court to admonish the plaintiff to answer the questions without volunteering information. The court did not so admonish her, but rather, on one occasion remarked that “her answers are not so different from most witnesses and most human beings,” and at another time stated that he thought she had answered the question. An examination of the plaintiff’s testimony convinces us that the court was correct, and also, that the comments of the court did not deprive the defendant of a fair trial.

The same can be said of counsel’s claimed misconduct. In questioning the plaintiff’s husband, counsel asked him if he had missed work as a result of the incident. The defendant objected and the plaintiff’s counsel then agreed that any such loss of work was not a part of the case; and the jury was instructed to disregard the question and answer. We do not believe this conduct on the part of the plaintiff’s counsel indicated a purpose to prejudice the jury, nor that it had such effect. Ziegler v. Smith, 86 Ill App2d 215, 222, 229 NE2d 340 (1967).

As to the other evidentiary errors claimed: The testimony pertaining to her fall at the hospital and resulting injury was some evidence of her claim of dizziness at the time, and was properly admitted. The court properly excluded the cross-examination of the men who helped the plaintiff move, with reference to the condition of her health when they left the premises, as beyond the scope of the direct examination. Other testimony clearly indicated that the plaintiff did not begin to feel ill until that evening — after these men had gone.

The limiting of the cross-examination of these men might have been unduly restrictive, and the testimony of the plaintiff’s husband improper, but we cannot concur that these errors were prejudicial to the defendant’s rights. Ziegler v. Smith, supra, 224. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.

Supplemental Opinion on Denial of Petition for Rehearing.

Upon petition for rehearing, the defendant urges, among other things, that we failed to comment on his point that certain testimony of the biochemist should have been stricken because it was highly prejudicial and speculative. The biochemist testified on direct examination that there is a wide variety of rhizopus mold, some of which can be eaten without any harm and others which can be extremely dangerous.

The thrust of the contention is aimed at the words “extremely dangerous.” However, on cross-examination, the biochemist stated:

“The molds about which I was speaking were not viable when I was examining them. They were not living. They were dead molds when I examined them.
“Q. Can you tell us, sir, with any degree of medical or — strike the word medical — biochemical certainty when the mold had died ? A. No. I cannot.
“I made my examination between the 20th and 30th of April. I continued to watch it grow each day. I did not cause the mold to grow. I examined what was already there, which was dead.
“Q. Then can you tell me with a reasonable degree of medical certainty when before the date of your examination the mold was alive? A. No, I cannot.
“I cannot answer yes or no that molds change over the course of time.
“Some rhizopus are dangerous and some are not.
“Q. Now you never stated in your direct examination whether or not the molds that you were speaking about were of one class or another in terms of — I guess we’ll have to use the word ‘danger.’ Do you know the answer to that question? A. This is quite impossible without extensive medical tests. I cannot specifically state that this particular mold, which I examined, will produce untoward effects.”

The defendant urges that this testimony was prejudicial and speculative in that the chemist could never say with any degree of biochemical certainty whether or not the dangerous type of rhizopus mold was involved in this case; and that his motion for a mistrial should have been granted because of the failure of the biochemist to connect the extremely dangerous type of rhizopus mold with this case.

In our opinion we noted that the “trial court refused to strike the testimony of this witness, and stated that the defendant’s objections were to the weight to be accorded the testimony rather than to its admissibility”; that the “court expressed doubt as to whether the testimony helped the plaintiff’s case”; that the plaintiff and others “testified that the physical appearance of the contents of the bottle was the same at the time of the trial as it was on the day she drank from it”; and that she and others “testified relative to the sediment and particles in the Coke, and to the slime on the inside of the bottle.” In view of all of the evidence, we sustained the trial court in permitting this testimony to stand.

When we consider this testimony in its totality, we find nothing prejudicial in it. We believe it to be relevant and question whether it could be classed as speculative. We distinguish this case from Marut v. Costello, 53 Ill App2d 340, 362, 202 NE2d 853 (1964), and other cases cited by the defendant. However, even if we assume for the purpose of argument in this case that the evidence was improperly admitted, we find the error to be harmless in that no prejudice was caused thereby. The object of the review of judgments of trial courts is not to determine whether the record is free from error but to ascertain whether a just conclusion had been reached, founded upon competent and sufficient evidence, in a trial in which no error has occurred which might be prejudicial to a litigant’s rights. People v. Storer, 329 Ill 536, 542, 161 NE 76 (1928); Ziegler v. Smith, 86 Ill App2d 215, 224, 229 NE2d 340 (1967); Reske v. Klein, 33 Ill App2d 302, 312, 313, 179 NE2d 415 (1962); Johnson v. Chicago & N. W. Ry. Co., 9 Ill App2d 340, 357, 358, 132 NE2d 678 (1956).

Consequently, we adhere to the affirmation of the judgment herein and deny the petition for rehearing.

Judgment affirmed and petition for rehearing denied.