author: MR. JUSTICE DAVIS

text:
    LeRoy A. Carlson, Plaintiff-Appellee, v. New York Life Insurance Company, Defendant-Appellant.
    Gen. No. 65-70.
    Second District.
    April 5, 1966.
    Supplemental opinion December 27, 1966.

      Spray, Price, Hough & Cushman, of Chicago, for appellant.
    Rathje, Woodward & Dyer Associates, of Wheaton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This was a suit to recover benefits under an accident policy issued by the defendant, New York Life Insurance Company. The jury returned verdicts finding that the plaintiff, LeRoy A. Carlson, was entitled to weekly benefits of $75 from October 30, 1958, to the date of trial, totalling $24,300, and that said weekly benefits should continue so “long as said plaintiff lives and is disabled.” Judgments were entered on the verdicts, and the defendant prosecuted this appeal.

The insurance policy on which this suit was based, was issued to the plaintiff on December 13, 1955, and provided benefits only for specified losses caused by accidental bodily injury. The insuring clause insured “against specified losses resulting directly, and independently of all other causes, from accidental bodily injury . . . , subject to the terms and conditions of this Policy.” Under the “Exceptions” of the policy, it was provided that the insurance shall not cover any loss caused or contributed to by any one or more of the following: “(c) illness, disease, or any bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body, . . . .”

Elsewhere, under the heading, “Time Limit on Certain Defenses,” the policy provided:

“(2) No claim for loss incurred or disability (as defined in this Policy) commencing after two years from the date of issue of this Policy shall be reduced or denied on the ground that a named condition not specifically excluded from the coverage had existed prior to the effective date of coverage of this Policy.”

There is little dispute as to the relevant facts. On October 25, 1958, the plaintiff was adding a room to his home, and while sanding a door the sandpaper on the electric sander ripped, causing foreign matter to be propelled into his face and eyes. Plaintiff testified that dust and splinters flew into his face, and that with two fingers, he immediately pulled a sliver out of his left eye. His eyes were inflamed from the accident, and from that date until October 30, 1958 when he saw a doctor, he applied various medications to his eyes.

The doctor, whom he saw — a specialist in ophthalmology — hospitalized plaintiff and treated him from October 30 to December 16, 1958. The doctor testified that he found no evidence of a break, puncture or laceration in the plaintiff’s left eye; and that as of December 16, 1958, there was nothing to prevent the plaintiff from performing his duties as an insurance salesman.

Two other ophthalmologists — who were largely in accord — testified that the plaintiff was suffering from lipoidal dystrophy, which either may or may not be the result of a trauma to the cornea. Neither of these doctors found any evidence of a scar from an injury to plaintiff’s left eye.

Plaintiff testified that from the date of the injury to the date of the trial, he consulted with and was examined by approximately 39 doctors; and that he visited 7 medical and psychiatric institutions. The majority of the doctors consulted were ophthalmologists; however, some were neurologists or psychiatrists. The plaintiff also testified to a series of pains and physical maladies following the injury to his eyes: sharp shooting pains in his left eye over an extended period of time; the discharge of two slivers and pus from his left eye in June of 1959; an impression of spasm, ripping or tearing apart of his head; sensations that his right eardrum was bursting, that the whole right side of his head was swollen, and that a clot of blood passed through the cavernous sinus of his head; and constant pain in the middle of his head which increased with either physical or mental activity.

He further testified that it was his recollection that various of the doctors who examined him from time to time advised him that he was losing the skin out of his eyes; that he was in shock; that he had a gross infection in his eye; that he had an infection of his middle ear; and that he had an infection of his whole head.

Three psychiatrists testified at the trial. Each stated that the plaintiff was suffering from schizophrenia, which resulted in total disability to carry on gainful employment. They concurred in the view that the plaintiff was suffering from somatic delusions; and that he was schizophrenic prior to the incident of October 25, 1958. However, they differed in their views as to when the plaintiff may have been a latent or an active schizophrenic, and as to whether the incident of October 25, 1958, may have been a precipitating factor causing a latent schizophrenia to become active.

Plaintiff’s medical witness testified that prior to October 25, 1958, plaintiff’s schizophrenia was latent. In answer to a hypothetical question, he stated that he was of the opinion that the incident on October 25, 1958, was the proximate cause of the activation of the schizophrenia. Defendant’s medical witnesses testified that it was difficult to determine when active schizophrenia has its inception, but that plaintiff’s falling sales records prior to the incident, as well as his belief that he had a splinter in his left eye, could well have been a symptom of such illness. In answer to hypothetical questions, neither of these witnesses believed the incident of October 25, 1958, could have been a precipitating factor in activating latent schizophrenia. The psychiatrists all agreed that the cause of schizophrenia is unknown; that the plaintiff had schizophrenia — either latent or active— prior to October 25, 1958, and that schizophrenia is an illness or disease.

The defendant contends that the trial court erred in refusing to direct verdicts for it at the close of all the evidence, or in refusing to grant it a judgment notwithstanding the verdicts, because as a matter of law the plaintiff’s disability did not come within the coverage of the policy. In the alternative, the defendant contends it is entitled to a new trial because of errors in evidentiary rulings; in instructing the jury; and because the verdicts were contrary to the manifest weight of the evidence.

In resolving defendant’s contention that the court erred in refusing to direct a verdict or to grant a judgment notwithstanding the verdict, we must view the evidence with its intendments most favorable to the plaintiff. Watts v. Bacon & Van Buskirk Glass Co., Inc., 18 Ill2d 226, 229, 236, 163 NE2d 425 (1960); Tucker v. New York, C. & St. L. R Co., 12 Ill2d 532, 534, 147 NE2d 376 (1958). We must, at this posture of the case, accept as true that plaintiff’s schizophrenia was latent prior to October 25, 1958, and became active as a result of that incident.

The question of whether plaintiff’s disability is covered by the policy depends on whether it is a loss as defined in the insuring clause as “resulting directly, and independently of all other causes, from accidental bodily injury,” or whether it is a loss “caused or contributed to by . . . illness, disease, or bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body” as specified in the “Exemptions” paragraph.

It is the defendant’s position that there is no liability under the policy unless the accidental injury is the sole and independent cause of the resulting disability; and that if the loss is caused in part by the preexisting illness —the latent schizophrenia — there can be no recovery. It must be conceded that if read literally the policy seems to provide as the defendant urges. Further, there is authority, including the decision of this court in Welte v. Metropolitan Life Ins. Co., 305 Ill App 120, 27 NE2d 63 (2nd Dist 1940), to support defendant’s contention. Under this rationale, if a preexisting illness and an accidental injury combine to cause a resulting disability and loss, the insurer is not liable under the policy. Also see: Schroeder v. Police & Firemen’s Ins. Ass’n, 300 Ill App 375, 382, 21 NE2d 16 (3rd Dist 1939); Ebbert v. Metropolitan Life Ins. Co., 289 Ill App 342, 16 NE2d 749 (1st Dist 1937).

The plaintiff argues that under this policy the fact that the disability is the result of the combined effect of an accidental injury and a preexisting disease, does not necessarily preclude recovery; and that under such circumstances, the right to recover is dependent upon whether the accidental injury was the “proximate cause” of the resulting loss or disability. Kater v. United Ins. Co. of America, 25 Ill App2d 22, 30, 165 NE2d 74 (3rd Dist 1960); Rebenstorf v. Metropolitan Life Ins. Co., 299 Ill App 71, 84, 19 NE2d 420 (1st Dist 1939); 29A Am Jur (Insurance) secs 1134 and 1162, pp 288, 289, 307, 308; 22 ILP (Insurance), sec 383, pp 422-424.

In Rebenstorf v. Metropolitan Life Ins. Co., supra, the court, on pages 84 and 85, in quoting from Scanlan v. Metropolitan Life Ins. Co., 93 F2d 942, stated:

“One may recover on an accident policy such as here in issue although the insured suffers from bodily infirmities. If the accident brought about conditions from which death resulted, the fact that the insured was ill, aged or infirm, or had bodily or mental infirmities, would not bar recovery provided the accident excited the bodily infirmity into activity and death resulted. If the infirmity alone would not have caused death, it cannot be said to have caused death when the immediate result was occasioned by an infirmity which became active only because of the accident. The infirmity may have made the insured less able to resist, but if the accident caused the condition which in turn affected the weak spot which did not resist as well as a healthy body, the cause is nevertheless the accident, and recovery cannot be avoided or evaded. (Citations.)”

We concur in this pronouncement. If the loss must be attributed in every case to the accidental injury solely, exclusively and totally independent of any other factor, then there would be a very rare incidence of coverage under an accident policy. As stated by Mr. Justice Cardozo in Silverstein v. Metropolitan Life Ins. Co., 254 NY 81, 171 NE 914 (1930) — a landmark decision on this subject — at page 915:

“If there is no active disease, but merely a frail general condition, so that powers of resistance are easily overcome, or merely a tendency to disease which is started up and made operative, whereby death results, then there may be recovery even though the accident would not have had that effect on a healthy person in normal state. . . . The infinite interplay of causes makes it impossible to segregate any single cause as operative at any time and place to the exclusion of all others, if cause is to be viewed as a concept of science or philosophy.”

The body of law on this subject is vast and varied. See Annotations: 131 ALR 240-269; 84 ALR2d 176-317. We might indulge in extended rationalization to justify our interpretation of the insurance contract, but we prefer simply to state that the purpose of the insurance contract would be gravely thwarted if the clause with which we are concerned were read to exclude coverage for any loss except that resulting solely and exclusively from accidental injury, without any other contributing cause. The policy must be construed in the light of the reasonable expectation and purpose of the ordinary man when making an ordinary contract. In the words of Dean Roscoe Pound, “The law enforces reasonable expectations arising out of conduct, relations and situations.” See Introduction to the Philosophy of Law, page 189. The view that an insurer may escape liability, when there is interplay between a preexisting illness and an accidental injury and “but-for” each there would not have been the resulting liability, is not acceptable to this court.

We adopt the view that where, under an insurance policy as in the case at bar, there is a preexisting illness or disease and an accidental injury and a loss or disability results, the pivotal issue is whether the accidental injury was the proximate cause of the resulting loss. A preexisting disease or illness, although contributing to the loss resulting from the accident, does not relieve the insurer of liability where the accident is the proximate cause of the loss. See: Kater v. United Ins. Co. of America, supra; Functional Analysis of Exceptions in Accident Insurance — Eugene F. Mooney, U of I Law Forum, Fall 1963, No. 3, pages 495, 515-527.

In adopting this view, we place no significance on the circumstance of whether the limiting language as to liability is contained in the insuring or in the exclusionary clause. We concur with the conclusion of the court in Kater, supra, at page 32, that the decision in Welte is contrary to the weight of the authority; and, to the extent Welte v. Metropolitan Life Ins. Co., supra, is inconsistent herewith, it is hereby overruled.

Tested by these standards, and with the evidence viewed in the light most favorable to the plaintiff, namely: that the latent schizophrenia was activated by the injury of October 25, 1958, we cannot state, as a matter of law, that the defendant was entitled either to a directed verdict or to a judgment notwithstanding the verdict. Whether or not the accidental injury was the proximate cause of the resulting disability, was a question of fact for the jury to determine.

The defendant has charged error in evidentiary rulings and in instructing the jury, as grounds for reversal and a new trial. One month before commencing this action, the plaintiff filed a malpractice suit against one of the doctors who treated him, alleging that the doctor’s negligent care was the “proximate cause” of his disability. The trial court refused to admit a certified copy of the complaint in said action in evidence. This was error — as the complaint was competent evidence as an admission. Chambers v. Appel, 392 Ill 294, 306, 307, 64 NE2d 511 (1946); Allen v. United States Fidelity & Guaranty Co., 269 Ill 234, 241, 109 NE2d 1035 (1915); Bobbins v. Butler, 24 Ill 387, 427 (1860). The plaintiff could thereafter explain or contradict the admission contained in the pleading, but it was competent evidence.

The plaintiff contends that the pleading was properly excluded under the authority of McCormick v. Kopmann, 23 Ill App2d 189, 202, 161 NE2d 720 (3rd Dist 1959), where it was held that alternative fact allegations set forth in the respective counts of the complaint therein, and based upon genuine doubt, may not be used as judicial admissions against other counts; and that such pleading only admitted the pleader’s uncertainty. In the case at bar, unlike McCormick, we have no alternative pleading, but rather, a pleading in another cause of action which contained the admission in question. The pleading was admissible and the admission was proper evidence.

The defendant also contends that the trial court erred in refusing to admit in evidence the complete contents of a letter written by Dr. Hanni, one of the defendant’s witnesses, in response to a letter from plaintiff’s attorney. Prior to the trial, plaintiff’s attorney wrote Dr. Hanni asking whether the schizophrenic condition “might or could have been caused by the traumatic episode and injury that occurred on or about the 30th day of October, 1958.” Dr. Hanni testified on direct examination that in his opinion the accident on October 25, 1958, could not be considered a precipitating factor in connection with the plaintiff’s schizophrenic illness. In cross-examining Dr. Hanni, the plaintiff’s attorney elicited, as impeaching evidence, that the doctor had written a letter to him stating: “It is theoretically possible that the episode of injury constituted a precipitating factor.”

Upon redirect examination, the defendant sought to have the entire correspondence between plaintiff’s attorney and the doctor read to the jury in order to state the question to which the doctor’s letter replied, and to set forth the entire contents of the doctor’s reply, which was:

“I have reviewed my file on Mr. Carlson carefully in an effort to answer the question put to me by your letter of July 5th, 1962.
“The diagnosis that I established following my examination was schizophrenic reaction, paranoid type, of severe degree. Since the causes of this disease are obscure the question that you asked is difficult to answer. It is my opinion that the causes of this disease consist chiefly of abnormal personality development in early childhood. I could not regard this episode of injury in October 1958 as a cause of the illness. It is theoretically possible that the episode of injury constituted a precipitating factor.
“In summary then it would be my opinion that Mr. Carlson’s mental condition was not a result of any injury that he sustained in October 1958.”

The sentence to which plaintiff’s counsel referred in the cross-examination of Dr. Hanni, when taken out of context and read alone, imports an entirely different meaning than when read within the context of the entire letter. The impeaching evidence, it would seem, would have an entirely different significance to the jury if the entire letter were disclosed. Thus, it was error to refuse to permit the defendant to bring out the remainder of the letter and the entire correspondence in redirect examination. People v. Kostos, 21 Ill2d 496, 500, 173 NE2d 466 (1961); People v. Munday, 280 Ill 32, 59, 117 NE 286 (1917); Barnes v. Northern Trust Co., 169 Ill 112, 121, 48 NE 31 (1897); Cleary, Handbook of Illinois Evidence, 2nd Ed, Secs 6.17, 9.12, pp 96, 97, 144, 145.

The defendant further contends that the trial court erred in permitting plaintiff’s expert witness to testify as to the ultimate issue, and to give an opinion in answer to a hypothetical question which assumed facts not in evidence.

In Cliff ord-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582 (1960), the court held that the refinements previously followed as to whether an expert witness could testify that a given event “caused” a condition, or whether he could only testify that a given event “might or could” cause a condition, were of no merit, and at page 243 stated: “So long as the witness is not called upon to decide any controverted fact, but is asked to assume the truth of the facts testified to, he may give his opinion thereon in any form.” In so holding, the court cited Chicago Union Traction Co. v. Roberts, 229 Ill 481, 82 NE 401 (1907), which at page 484 stated:

“It is not the province of an expert to act as judge or jury. He cannot be called upon to decide a question of fact. The object of a hypothetical question is to obtain the opinion, upon a subject not within the knowledge of men of ordinary experience, of one who by a previous course of habit or study has acquired a knowledge of that subject. The hypothetical statement of facts must be taken to be true. The opinion is permitted to be given to enable the jurors to draw the inferences from the evidence which their want of knowledge would otherwise prevent. In this case the question was whether the appellee’s condition was due to traumatism or other causes. It was a question for the jury to determine, but it was impossible for them to answer without hearing the opinions of physicians. These opinions did not invade the province of the jury. ... It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event, the testimony was merely the opinion of the witness, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form.”

We concur in the foregoing rationale of Chicago Union Traction Co. v. Roberts, supra. The nature of the case at bar was such that the determination of the ultimate issue required a degree of expertise — an expert opinion — if the jury was to reach a considered verdict. Even though the expert opinion was on the ultimate issue, it was only an opinion and, in the interest of ascertaining the truth on the issue in controversy, it should not be barred.

The hypothetical question placed to the doctor, however, contained reference to numerous facts which were not in evidence. The plaintiff had been permitted to testify to what he believed numerous doctors had diagnosed as wrong with him and what he believed numerous doctors had told him. However, it was stipulated that he could so testify to show his state of mind, but that this testimony was not to be considered as evidence of what these doctors actually diagnosed or said to the plaintiff. The hypothetical question did not contain these assertions within this restricted scope. It stated the various reputed diagnoses and statements of doctors as having in fact been made. There was no evidence to support this. The opinion of the doctor was improper in that it was based in part on assumed facts, not supported by the evidence. Butler v. Palm, 36 Ill App2d 351, 365, 184 NE2d 633 (2nd Dist 1962); Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 32, 181 NE2d 826 (1st Dist 1962); Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 530, 531, 34 NE2d 732 (1st Dist 1941). The error of the hypothetical question in the case at bar was compounded in that it suggested to the jury that certain of the diagnoses and statements supposedly made by doctors, who were not called to testify, could be true.

The defendant also contends that the trial court erred in permitting the plaintiff to be withdrawn from the stand so that plaintiff’s expert medical witness could testify and return to Michigan. The trial judge has discretion to permit evidence to be presented out of order. But here the defendant was definitely injured by this course of action. The expert placed on the stand gave his opinion based upon a number of hypothetical facts, which it was presumed would be testified to by the plaintiff. The defendant had been given no opportunity to cross-examine the plaintiff and was thereby restricted in presenting to the expert medical witness alternate assumed facts based upon plaintiff’s testimony. The result of taking these particular witnesses out of order, was to deprive the defendant of the full right of cross-examination of the expert witness. It constituted error.

It is also contended that certain exhibits which were in plaintiff’s possession — which he had received while a salesman for the defendant — were erroneously admitted in evidence. These exhibits related primarily to the “Incontestability” clause which provided a time limit on certain defenses.

The incontestability clause may not be read as an “insuring” or “coverage” clause. This clause merely provides that after the elapsed period of time, the insurer may not urge the defense that the policy was invalid in its inception, or thereafter, by reason of a condition broken. Metropolitan Life Ins. Co. v. Conway, 252 NY 449, 169 NE 642 (1930). Such a clause does not alter the scope of coverage of a policy. The insurer in the case at bar contested the plaintiff’s interpretation of the coverage of the policy — not its validity. The incontestability clause pertained to the truth of the representations made in the application for insurance, and had no relevancy to the determination of the question of coverage. Pekras v. Prudential Ins. Co. of America, 291 Ill App 597, 599, 600, 10 NE2d 704 (1st Dist 1937); Williamson v. American Ins. Union, Inc., 284 Ill App 150, 159, 1 NE2d 541 (1st Dist 1936).

The proximate cause of the resulting disability in this case was a close question. Neither the incontestability clause nor the exhibits relating thereto had any relevancy. The reference thereto by plaintiff’s counsel, could have been interpreted by the jury to mean that the preexisting illness could not be a defense to liability, regardless of whether it was the proximate cause of the resulting disability. Such misconception by the jury relative to the incontestability clause and the related exhibits, could preclude a fair trial.

The defendant contends that the court erred in the giving and refusing of certain instructions. However, it did not abstract all of the instructions which were given and were this the only ground urged for reversal, we would thus be compelled to affirm. Okai v. United Roofing & Siding Co., 24 Ill App2d 243, 247,164 NE2d 237 (4th Dist 1960); Pantlen v. Gottschalk, 21 Ill App2d 163, 177,157 NE2d 548 (3rd Dist 1959).

Because of the nature of this case and the close questions involved, we believe that the errors which we have referred to are sufficiently prejudicial to defendant to warrant a new trial. The cause is, accordingly, reversed and remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded with directions.

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

Supplement to Opinion After Allowance of Petition for Rehearing

We granted the defendant a rehearing so that both parties might fully set forth their positions on our interpretation of the insurance contract with reference to the causative factor of plaintiff’s injury. Both parties have presented able and persuasive arguments relative to the interpretation which should be given the clause which insured the defendant “against specified losses resulting directly, and independently of all other causes, from accidental bodily injury”; and the exclusionary clause which provided that the policy should not cover any loss “caused or contributed to by . . . illness, disease, or bacterial infection other than that occurring in consequence of accidental injury on the exterior of the body.”

The defendant in its petition urges that we should have held that the trial court erred in failing to direct a verdict or grant a judgment notwithstanding the verdict in defendant’s favor; and that we have done violence to the clear and unequivocal language of the contract and have erroneously adopted and applied a tort concept to contract law.

In reevaluating the insurance contract, in the light of its purpose and language, we feel we must adhere to the view expressed in our original opinion. An accidental injury must necessarily act on the bodies of persons in varied states of health and well or ill-being. The insured’s particular condition of well or ill-being may aggravate or lessen the resulting disability or loss; or such existing condition may be the precipitating and principal cause of the resulting disability which is merely aggravated by the accidental injury.

As stated in the original opinion, if the policy is to be construed in such manner that in order to recover, the disability must result from an accidental injury solely, exclusively and totally independent of any other factor, there would be only a rare incident of coverage. In view of the infinite interplay of causes, we do not believe that it is scientifically or philosophically possible to isolate any single cause as operative at any time or place to the exclusion of all others. Where there is a preexisting illness or disease and an accidental injury and a loss or disability, as in the case at bar, we hold the pivotal issue to be whether the accidental injury was the proximate cause of the resulting loss, and we do not believe that the strict interpretation of the policy urged by the defendant would be within the reasonable expectation and purpose of the ordinary man when making an ordinary contract. In construing this policy, we adhere to the concept that the law should enforce reasonable expectations arising out of conduct, relations and situations.

Under analogous circumstances — where heart attacks occurred during the working hours, of employees and claims for compensation were made — the Illinois Supreme Court was called upon to construe the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, § 138.1 et seq.). Under this Act it was specified that compensation would be paid for injury or death only where the accident “arises out of” and “in the course of” the employment.

In the earlier decisions, the court denied compensation in preexisting cardiac cases where there was no accidental injury within the generally understood meaning of the term. See: Jakub v. Industrial Commission, 288 Ill 87, 123 NE 263 (1919). In the case of E. Baggot Co. v. Industrial Commission, 290 v 530, 125 NE 254 (1919), the court held that in order for the injury to be compensable, the strain on the heart must have been due to an unusual or extraordinary exertion and must have resulted in an internal rupture of the heart or connecting blood vessels.

However, in Republic Steel Corp. v. Industrial Commission, 26 Ill2d 32, 185 NE2d 877 (1962); Clifford-Jacobs Forging Co. v. Industrial Commission, 19 Ill2d 236, 166 NE2d 582 (1960); Laclede Steel Co. v. Industrial Commission, 6 Ill2d 296, 128 NE2d 718 (1955) and Bethlehem Steel Co. v. Industrial Commission, 6 Ill2d 290, 128 NE2d 714 (1955), the court has greatly liberalized its interpretation of the “accidental” injury requirement.

In Republic Steel Corp. v. Industrial Commission, supra, at page 45, the court stated:

“To come within the statute the employee must prove that some act or phase of the employment was a causative factor in the ensuing injury. He need not prove it was the sole causative factor nor even that it was the principal causative factor, but only that it was a causative factor in the resulting injury.”

And, in Thomas J. Douglass & Co. v. Industrial Commission, 35 Ill2d 100, 219 NE2d 486 (1966) — where an award for total permanent disability, based upon neurosis following injury, was affirmed — the court stated at pages 104 and 105:

“In the case at bar it is evident that whether a causal relationship existed between the injury and claimant’s mental condition, and whether the latter has rendered him permanently disabled, depend principally upon the medical testimony. Dr. Kesert testified to the presence of such a causal connection and to the permanence of the condition, and one of the respondent’s medical witnesses admitted on cross-examination that there might or could be a traumatic neurosis resulting from amputation of the toes. Although there was other evidence indicating the contrary, the evidence on the whole is such that different inferences could reasonably be drawn therefrom. The determination of these disputed questions of fact, as we have often pointed out, is primarily a function of the Industrial Commission. (Gould National Batteries Inc. v. Ind. Com., No. 39282, 214 NE2d 750; Zion Industries Inc. v. Ind. Com. 33 Ill2d 314.) When the medical testimony is in dispute and the findings of the Industrial Commission cannot be said to be contrary to the manifest weight of the evidence, the decision of the commission will not be disturbed. (Crouch-Walker Co. v. Ind. Com., No. 39481, 215 NE2d 441.) Such is the case here.”

The causal relationship referred to by the Supreme Court in its construction of the Workmen’s Compensation Act can well be equated to the proximate cause in the case at bar. In the life, development and growth of the law, a nice tidy logical perfection of mechanical rules can rarely be achieved and certain basic considerations of justice, fundamental fairness and reasonable expectations arising out of conduct, relations and situations should not be sacrificed in an attempt to achieve such hard and fast rules. We believe that our interpretation of the policy in the case at bar is of the type which yields rational results in real cases; and we recognize that this view, and that urged by the defendant, represent the never ending struggle in the law between certainty and limited flexibility.

We are not impressed by the defendant’s argument that we have erroneously adopted and applied a tort concept to contract law. In the history of the development of the common law, the chancellor, as the keeper of the King’s conscience, would invent and issue writs to ameliorate the inequities of the existing law — and matters involving fraud, accident and breach of confidence were particularly within his competence.

Subsequently, these matters, which sound in tort, were recognized as the basis for a legal action and as a legal defense to varying types of action, particularly those arising out of contract. One of the classic examples of such tort defense is found in contract actions wherein an insured has sued his insurer on an insurance policy and the insurer’s defense is that the insured obtained the policy by virtue of false or fraudulent representations or deceit. And in a myriad of such cases, such defense has prevailed. See: Weinstein v. Metropolitan Life Ins. Co., 389 Ill 571, 60 NE2d 207 (1945); Western & Southern Life Ins. Co. v. Tomasun, 358 Ill 496, 193 NE 451 (1934); Mooney v. Underwriters at Lloyd’s London, 54 Ill App2d 237, 204 NE2d 51 (1964); Cox v. Equitable Life Assur. Society of United States, 333 Ill App 207, 76 NE2d 529 (1947) and cases cited therein. In view of the long and repeated recognition of the right of an insurer to plead and assert a defense sounding in tort to a suit in contract based on the applicable insurance policy, we are not reticent to apply the tort principle of proximate cause in our construction of the meaning of the insuring and exclusionary clauses of the insurance policy under consideration.

Many years ago, Mr. Justice Cardozo made a statement apropos of the circumstances here involved: “The process of justice is never finished, but reproduces itself, generation after generation, in everchanging forms.”

The verity of these words may be found in the decisions of the Illinois courts, among which are: Amann v. Faidy, 415 Ill 422, 114 NE2d 412 (1953), which overruled Allaire v. St. Luke’s Hospital, 184 Ill 359, 56 NE 638 (1900), and held that a viable child, who survives birth, should be permitted upon proper proof, to recover for injuries received before birth; Bradley v. Fox, 7 Ill2d 106, 129 NE2d 699 (1955), which overruled Welsh v. James, 408 v 18, 95 NE2d 872 (1951), and held that one who murders his joint tenant destroys all right of survivorship to jointly held property; Nudd v. Matsoukas, 7 Ill2d 608, 131 NE2d 525 (1956), which held that while the public policy rule of parental immunity from suit by a child may be such justification as to prevent suits for mere negligence within the parental relationship, such policy should not prevent a minor from obtaining redress' for wilful and wanton misconduct on the part of a parent; Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill2d 11, 163 NE2d 89 (1959), which overruled Kinnare v. City of Chicago, 171 Ill 332, 49 NE 536 (1898), and subsequent cases, and held that the judicially created doctrine of sovereign immunity, as extended to school districts granting them freedom from tort liability, is abolished; and Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), which held that the manufacturer or seller of a defective product or component part may be held strictly liable in tort for injuries sustained by a subpurchaser by virtue of the defective product, notwithstanding the absence of privity of contract with the manufacturer or seller.

The enlightened principles manifested in the above decisions sustain the view that the genius and glory of the common law lies in its responsiveness to the existing realities of a dynamic and changing society, and to its awareness of the value of stability and tradition without irrevocable commitment to outworn precedent. Chidester v. Cagwin, 76 Ill App2d 477.

We do not believe that the view adopted by the opinion of this court does violence to the language of the contract. Whether or not a resulting loss is covered must depend on whether or not the accidental injury is the direct and proximate cause thereof. A preexisting disease or illness will relieve the insurer of liability when it is the direct and proximate cause of the loss. Of the dichotomy of views on this problem, we believe that the cases cited and followed by us represent the better rationale.

Accepting all of the evidence with all of the reasonable inferences which may be drawn therefrom in the light most favorable to the plaintiff — as we must do — we cannot say as a matter of law that the preexisting illness, rather than the accidental injury, was the proximate cause of the resulting lass.

With deference and due respect to both the other courts and counsel for the defendant, which embrace views to the contrary, we adhere to our original opinion filed herein.

Reversed and remanded with directions.

MORAN, P. J., concurs.

ABRAHAMSON, J., dissents.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    Lena Esderts, Administratrix of the Estate of William J. Esderts, Deceased, Plaintiff-Appellant, v. Chicago, Rock Island & Pacific Railroad Company, a Corporation, Defendant-Appellee.
    Gen. No. 49,400.
    First District, Third Division.
    July 14, 1966.

      James A. Dooley, of Chicago, for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush and John M. O’Connor, Jr., of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The administratrix of the estate of William J. Esderts, brought this action against the defendant, Chicago Rock Island & Pacific Railroad Company, based upon the Federal Employers’ Liability Act (45 USCA § 51, et seq.). The jury returned a verdict in the defendant’s favor, judgment was entered thereon and the plaintiff appeals.

The plaintiff contends that she was deprived of a fair trial because improper procedure was followed in the use of impeaching statements in the cross-examination of one of the plaintiff’s witnesses, because the trial court recalled the jury after proofs were closed and read these statements to the jury, and because of prejudicial argument by the defendant.

William Esderts was the foreman of a bridge-repair crew employed by the defendant. The crew had spent a few weeks in Iowa Falls, Iowa, repairing a bridge and were using three railroad cars for their headquarters, one of which was their bunk car. The three cars were on a switch track just south of the railroad’s single-track main line which ran east and west through Iowa Falls. There were other switch tracks to the north of the main line. The bridge was on the main line three-quarters of a mile west of the bunk car.

In the late afternoon on June 5, 1952, Esderts, who had been employed by the railroad for nearly 20 years, Wilbur Peet, a young man and a new employee, and another employee who was also doing the cooking for the crew, left the bridge by a motorcar, which ran on the railroad tracks, and rode to the bunk car so that Peet could fill out some papers required for his employment and the other employee could prepare the evening meal. They traveled eastward over the main line and upon reaching the bunk car the motorcar was removed from the main line so that it would be out of the way of an expected passenger train; it was placed on the switch track to the south but it was not turned around. The front end was still facing east and the rear end was to the west.

The motorcar was a small flat car which could carry four men. The men would sit sideways on the platform of the car, two on one side and two on the other, back to back, facing away from the tracks on which the car rode. There were footboards for their feet and there was a canvas windbreak on the front end of the car. The operating levers were in the center of the platform and the man who ran the car would turn his body at an angle so that he could see ahead and reach the levers with that hand which was toward the inside of the car.

After Peet had completed his forms, Esderts and he re-boarded the car to pick up the rest of the crew at the bridge. Peet sat on the south side with his body turned towards the west, the direction in which the car was to go; he was leaning against the metal bars which supported the windbreak which was to the east and back of him. Esderts sat on the north side of the car with his upper body and face turned to the west and his right hand operating the controls behind his back. They then proceeded westward on the switch track, the car being run backwards contrary to the rules of the railroad.

The switch track entered the main line some distance to the west. 216 feet east of where the junction took place there was a derail device located on the south rail of the switch track. This was a safety device, the principal purpose of which was to prevent cars on the switch track from entering the main line and colliding with passenger or other trains. The derail would deflect cars to the south and away from the main line. Derails were painted yellow and there were such devices on all the switch tracks of the defendant railroad. The rules of the railroad required the devices to be set for their intended purpose. The derails were locked to the tracks and had to be unlocked by hand to permit movement of cars onto main tracks. The railroad rules required track foremen to watch the derails and to reset them if they were in a wrong position. The derail on the south switch track was locked and Esderts had a key for it.

As the motor car went westward at five to eight miles per hour, an eastbound switch engine on a track north of the main line passed by. Peet turned his head to the right and waved to a man on the engine. Esderts and the foreman of a switch crew waved to each other, too. A moment later the motorcar struck the derail and was hurled from the tracks. Esderts was flung off backwards and the car landed on top of him. Peet, who was thrown clear, removed the car from Esderts, who, while in obvious pain, was not unconscious. Other railroad men working in the yard came to help, a doctor was called and Esderts was taken to a hospital where he died the next day.

Although there was little dispute as to the manner in which the accident occurred, there were disputes concerning the scene of the accident. There was a warning sign on a four or five-foot high post located about six feet south of the derail. The post had the word “DERAIL” painted vertically on its east and west sides. One dispute concerned the legibility of this sign, whether it needed painting and whether it was obscured by weeds. Another dispute pertained to the visibility of the derail device, whether it was painted yellow or whether it was the same rusty color as the rail. Still other disputes concerned the weeds between the rails of the switch track, the weeds to the south of the track and the presence of debris between the rails and in the general area. All these issues, which the jury resolved favorably to the defendant, were pertinent under the plaintiff’s complaint which alleged that the defendant had carelessly and negligently:

a. maintained, operated and controlled a certain track and derail device in such a manner as to create a dangerous and hazardous condition to railroad employees required to use the track;

b. failed to provide plaintiff’s decedent with a safe place to work;

c. permitted weeds, grass and foreign growth to accumulate around the derail device so as to obscure the presence of the device from plaintiff’s decedent;

d. failed to post adequate signs or otherwise to warn plaintiff’s decedent of the presence of the device;

e. allowed and permitted a certain derail device to remain in close proximity to a passing truck and in a concealed location so as to create a hazard and trap for railroad employees using said track.

The Federal Employers’ Liability Act provides that a railroad will be liable for any injury or death to an employee of such carrier resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. The Act further provides that contributory negligence on the part of the injured employee will not bar the action, but the damages will merely be diminished by the jury in proportion to the amount of negligence attributable to such employee.

It is our opinion from reading the entire record that it was not unreasonable for the jury to reach the conclusion that it did. The evidence, although in conflict, was sufficient for the jury to find that no negligence of the railroad contributed wholly or partially to Esderts’ injury and death. The plaintiff contends, however, that the jury’s verdict was improperly influenced by errors which took place during the trial, and that these errors were compounded by the prejudicial argument of the defendant’s counsel.

The alleged trial errors pertain to the defendant’s use and the trial court’s treatment of post-accident statements signed by Wilbur Peet who was the only person who saw the accident and who testified as a witness for the plaintiff. The errors charged are many and the principal ones pertaining to the defendant’s use of statements are these: the entire statements were introduced into evidence, read to the jury and used as substantive, not impeaching, evidence; the portions of the statements which may have been impeaching were never offered in evidence; Peet was questioned on irrelevant matters for which there was no basis for impeachment and was interrogated for the deliberate purpose of impeaching him; the whole intent in the cross-examination of Peet was to generate the impression that his testimony was contradictory to his statements and to put him and the plaintiff in a bad light in the eyes of the jury; the defendant succeeded in this purpose by the questions it asked, by the way it asked them and by causing the plaintiff to object to them, and that the defendant’s mode of handling the statements prevented the plaintiff from challenging their impeachment character and from offering explanatory or rebuttal evidence. The errors laid at the door of the trial judge are the following: telling the jury that the full statements would be given to them and ruling that the statements would go to the jury room; recalling the jury after they had commenced deliberating and reading the statements to the jury himself, and creating an unfair dilemma for the plaintiff by ruling that the complete statements would go to the jury room unless the plaintiff agreed to his reading them to the jury. Although this truncated list of errors appears formidable, it becomes less so when the errors are evaluated in conjunction with what actually took place at the trial.

For a better understanding of the errors alleged and the trial developments, a resume of relevant parts of Peet’s testimony and statements is advisable. Peet testified that Esderts did not wave to anyone when the switch engine passed by, that the speed of their motorcar was approximately five miles per hour, that the derail device looked just like the track, that weeds between the tracks were eight to twelve inches high, that the derail sign was fourteen feet south of the track, had little paint on it, was not over four feet high and that the top of the post could not have been more than six inches above the weeds. During his cross-examination Peet was questioned about three signed statements. The first was made by him the day after the accident, June 6, 1952, and was marked defendant’s exhibit #4. This exhibit was three pages in length and, except for three sentences, was fully corroborative of his testimony. These sentences were: “I do not know if my Foreman waved ... or not,” “. . . we were traveling in my judgment about 7 or 8 miles an hour. . . .” and “. . . the track itself was not the cause of our derailment.” The second statement was made four days later, June 10, 1952, and was marked defendant’s exhibit #12. It was in question and answer form and three of the questions and answers were these:

“Q. Did Foreman Esderts wave at the fireman on the switch engine?
“A. I did not see him wave ... I did not see Bill wave.
“Q. How fast were you moving when you struck this derail?
“A. About seven or eight miles an hour.
“Q. Was there anything to obstruct the view of either the derail or the derail sign from your position on the motorcar ?
“A. The sun was shining in my eyes and I didn’t see it.”

The third was made five years later, October 10, 1956, and was marked defendant’s exhibit #11. It consisted of two paragraphs. In it Feet said that he had no recollection of the derail or sign being painted or weeds being cut following the accident. Pictures of the scene (which were subsequently introduced in evidence at the trial) were shown to him when the statement was taken and he said the pictures “show the conditions as they were at the time of the accident.”

With this background we can now relate what took place at the trial. After Feet identified his signature on exhibit 4 the plaintiff objected to any questions concerning the contents of the statement on the ground that a signed statement, for which the proper foundation had been laid, could only be used for impeachment purposes during the defendant’s side of the case when it could be introduced in evidence and the impeaching portions read to the jury. The court sustained the objection. Later on in cross-examination the defendant’s attorney with exhibit 4 in hand, asked Peet three or four times if it was true that he did not know whether or not Esderts waved. As each question was asked the plaintiff repeated the objection that a wrong method was being used to impeach from a signed statement. The form of the last question was changed and Peet answered that he was quite certain that Esderts did not wave. Only two other questions which might have been founded on exhibit 4 were asked the witness:' one was about the speed of the motorcar and the other was about the time intervening between Peet’s waving to the switch engine and striking of the derail; objections to these questions were sustained.

After being shown exhibit 11 Peet said it was not his statement but that it bore his signature. The defense attorney started to ask a question about the exhibit and the plaintiff’s attorney objected before the question was completed. The objection was on the ground that the witness could not be impeached by showing that he did make the statement or on any collateral or immaterial matter. A discussion took place in chambers during which the statement was shown to the attorney who thereupon withdrew his objection. The defendant, however, asked no further question of the witness based on the statement. However, he was asked questions, without objection, concerning subjects covered in the statement. He said that following the accident the position of the derail sign had been changed and the whole yard had been cleaned. He was also shown pictures of the scene, presumably the same ones shown him at the time he made the statement.

Peet was also questioned about exhibit 12 and the inquiry was made whether the questions and answers, which we mentioned heretofore, were asked and answered as set forth in the statement. Although exhibit 12 was a signed statement the plaintiff did not repeat his general objection. A specific objection was made to the question: “Was there anything to obstruct the view of either the derail or the derail sign from your position on the motor car?” for the reason that it was not impeaching. The objection was overruled. No objection was made to the other two questions. The witness replied that he was not sure he had made the answers as they were written. The person who took the statement testified that the questions had been asked and the answers given as set out in the exhibit.

At the conclusion of the defendant’s case only exhibit 12 was offered in evidence. In the presence of the jury the plaintiff asked: “What about the other statement?” and “I am asking you what about the statement you had him identify and laid a foundation for.” The defendant then offered exhibit 11. The plaintiff persisted, “But where is the statement which you had marked for identification which Mr. Peet signed on June 6, 1952?” The jury was excused. The attorney for the plaintiff pursued his inquiry and twice stated that he would offer exhibit 4 if the defendant did not. The defendant finally offered it and it was received in evidence. The defendant, however, did not read into evidence the impeaching portions of exhibit 4 or of exhibit 11.

During his final argument the defendant’s attorney referred to exhibit 4 two times but did not read from it; he told the jurors that it was in evidence and that they would have the opportunity to read it. In his closing argument the plaintiff’s attorney said that since the defendant had not read the statement he would do so. The defendant stated that he had no objection if the entire statement was read; the plaintiff replied that he intended to read the statement completely. As he read it he interspersed frequent observations that the statement substantiated Peet’s testimony. He read all of the statement except the last five sentences which included the one about the switch track itself not being the cause of the derailment. The defendant protested the omission. The court responded that the statement was in evidence and the jury could read it in its entirety in the jury room.

In his final argument the defendant’s attorney referred to exhibit 11, which he said the jury would see in the jury room, and called attention to what Peet had said in his statement. The plaintiff’s attorney also talked about the statement and he read that portion of it wherein Peet said that he knew nothing of painting being done or weeds being cut following the accident. He did not read the part wherein Peet stated that the defendant’s pictures showed the conditions as they were at the time of the accident.

Exhibit 12 was also referred to in the defendant’s final argument, and the questions asked of Peet and the answers made by him in that statement were repeated. The plaintiff in rejoinder only mentioned the question and answer concerning Esderts’ waving to the switch engine.

After the jury had been instructed and had retired, the attorney for the plaintiff objected to exhibits 4 and 11 going to the jury room because they were impeaching documents. The court reminded him that he had used exhibit 4 advantageously in corroboration of his own witness. The defendant’s attorney argued that exhibit 4 had been offered at the insistence of the plaintiff, whose inquiry about the statement “put him on the spot” before the jury and made him appear like he was “holding something back,” that the full statement had not been read and that the jury, having heard the parts favorable to the plaintiff, should see the entire statement. The plaintiff replied that the problem was created by the defendant’s failure to read the impeaching portions of the statement after introducing it and that to permit the statement to go to the jury would be reversible error. The plaintiff made an additional objection to exhibit 11: that in cross-examining Peet the defendant had gone beyond the scope of the direct examination and had asked him questions solely for the purpose of impeaching him.

During the heated discussion on both exhibits the situation was further complicated by a bailiff informing the court that the jury was asking for the exhibits. The court stated the exhibits would go to the jury. The plaintiff’s attorney renewed his protest and the discussion continued. Cases were cited and read. The court remarked that he was not surprised that the jurors were looking for the statements after his telling them that they would have the statements to read. The court said that he was trying to avoid error and he proposed a solution: recalling the jury, reading the entire statements to them and not sending the statements to the jury room. He said it was a practical solution of the difficulty but that it could be done only be stipulation. The defendant’s attorney agreed to the proposal but still contended that under the circumstances that had developed the exhibits should go to the jury room. The plaintiff’s attorney voiced misgivings and advanced two objections: one was to the reading of that part of exhibit 4 about the switch track itself not being the cause of the derailment, and the second was that he did not want either counsel to participate in the reading. The judge suggested that he himself would read the exhibits but would not read the sentence objected to in exhibit 4. The plaintiff’s attorney then agreed. The jurors were recalled and the judge told them that through inadvertence they had been told that the statements would accompany them to the jury room, that this could not be done and in lieu of this he would read the statements to them. He did so with the exception of that part of exhibit 4 previously objected to by the plaintiff’s attorney.

The defendant and the plaintiff must share-responsibility for the irregular proceedings. The defendant was at fault in not following through with the impeachment process on exhibits 4 and 11 after the court sustained the plaintiff’s objections to the method of impeachment being pursued by the defendant. There was a basis in law for the objections. It has been held that when it is desired to impeach a witness by a statement written or signed by him, and the proper foundation has been laid by permitting the witness to read the statement and proving by him or others that he wrote it himself, or that what he said was reduced to writing and was signed by him, the statement should be introduced into evidence during the cross-examiner’s case and the portions contradictory to the witness’ testimony read to the jury! Illinois Cent. R. Co. v. Wade, 206 Ill 523, 69 NE 565 (1904); Hapke v. Brandon, 343 Ill App 524, 99 NE2d 636 (1951). In the Wade case one of the parties sought to use written statements in this manner and the trial court would not permit it. The Appellate Court affirmed but the Supreme Court reversed holding that the course of proof pursued by the appellant was proper. In the Brandon case the trial court refused to admit into evidence written statements made by a witness inconsistent with his testimony. In reversing, the Appellate Court said that since the correct foundation had been laid it was proper to offer the inconsistent parts of the statements in evidence with other testimony on behalf of the appellant. We agree with the trial court in the present case that this is a proper method of using a written statement for impeachment purposes but we disagree that this is the only way it can be used. After the correct foundation has been laid a witness may be asked on cross-examination if he said this or that (quoting from the statement) and if he denies the contradictions or says he was misquoted or the like, the follow-up proof may be the same as in the case of an oral statement, a deposition or prior testimony. If the witness admits having made the inconsistent statements a party is not foreclosed from making further proof, for it has been held that the party may prefer to have these statements more clearly brought out and emphasized. People v. Williams, 22 Ill2d 498, 177 NE2d 100 (1961). Contra: Sally Chain Stores, Inc. v. Ace Bonded Carriers, Inc., 307 Ill App 644, 650, 30 NE2d 966, 969 (1940). In the present case the trial court’s ruling may have disconcerted the defendant; the cross-examination of Peet on exhibits 4 and 11 was curtailed and the full statements were offered in evidence reluctantly. But having started to impeach on these exhibits the defendant was at fault in not completing the impeachment even though the preliminary questions had not been fully answered. The defendant also was at fault in telling the jurors that they would have the statements in the jury room.

However, the plaintiff was not prejudiced because of these faults, in fact they redounded to the plaintiff’s advantage. After prodding the defendant into introducing exhibit 4 under the threat of doing so if the defendant did not, the plaintiff’s attorney capitalized on the defendant’s failure to read the inconsistent parts of the statement and read most all of the statement himself. He read it because it was favorable to his client and repetitive of Peet’s direct testimony. So, too, with exhibit 11. What he read to the jury, with one exception, was corroborative of Peet’s testimony on cross-examination. He thus succeeded in repeating to the jury the testimony of his major witness through the use of statements that were otherwise inadmissible. As he stated in the plaintiff’s brief: “His [Peet’s] statements were exactly what he had testified to on direct examination.”

The plaintiff complains that the entire statements were admitted into evidence, but she was more eager than the defendant that they be offered and received. She complains that the statements were read to the jury, but her counsel read the greater part of them himself and used them as substantive evidence in support of her case. She complains, on the one hand, that the impeaching portions of the statements were not read to the jury by the defendant and complains, on the other hand, that they were read by the court. As a matter of fact, her counsel read most of these himself. Of the three items in exhibit 4 which might be considered in conflict with Feet’s testimony one (the track not causing the derailment) was never asked of Feet; and the other two (the speed of the motorcar and whether Esderts waved) were read by the plaintiff as well as the court. Moreover, the last two items were in evidence, long before exhibit 4 was read, through the medium of exhibit 12. Of the two conflicting items in exhibit 11 one (the weeds being cut after the accident) was read by both court and plaintiff; the second item (relative to the pictures correctly depicting the scene) was read by the court only. However, these pictures were in evidence and had been shown to Feet while he was on the witness stand. Because he said he did not know if they were the same ones he had seen when he made the statement, proof that they were identical was made by one of the persons present at the time he signed the statement. The repetition by the court could not have been seriously harmful to the plaintiff.

The plaintiff complains that she was precluded from challenging the impeaching character of the items in exhibits 4 and 11 and from offering explanatory evidence concerning them. But there was no offer of proof in this regard and, furthermore, she neither challenged nor offered rebuttal explanation to those questions and answers in exhibit 12 which were identical to the ones in exhibits 4 and 11. She complains that the defendant’s inept use of Feet’s statements generated an impression that his testimony and statements were in complete . conflict and that the necessary objections made by her” counsel deepened this impression. If this was true her counsel’s disclosure of the contents of the statements and the court’s rereading of them dissipated the impression. She complains of those questions asked by the defendant prefaced by the phrase, “Is this a true statement?” (which was the form of the question used when the first attempt was made to impeach Feet by referring to exhibit 4) but the court sustained every objection to these questions.

The plaintiff complains that prejudicial error occurred when the court permitted the defendant to question Feet about refusing to give a statement on October 10, 1957. This arose when Feet said that representatives of the defendant asked for a statement on that date but he had refused to make one. The plaintiff cites Deeke v. Steffke Freight Co., 50 Ill App2d 1, 199 NE2d 442 (1964), in support of her contention. The Deeke case is not in point. In that case a defense witness declined to give a statement to the plaintiff. The plaintiff contended that his cross-examination as to this fact was unduly limited. The Appellate Court affirmed saying that a witness, at his discretion, has the right to refuse to talk to anyone. Unlike the witness in the Deeke case, Feet gave a statement but denied giving it. It was not error to question him about this, and to show that he was mistaken in saying he did not give a statement.

The plaintiff complains that the trial court permitted the defendant to improperly cross-examine Feet for the sole purpose of impeaching him about matters not covered in his direct examination, such as whether the defendant changed the conditions at the scene subsequent to the accident by cleaning up debris, cutting weeds and painting the derail and the derail sign. It is improper to examine a witness on immaterial matters for the purpose of contradicting his answers (People v. Kirkwood, 17 Ill2d 23, 160 NE2d 766 (1959)) but, in the first place, the plaintiff made no objection to these questions and, in the second place, not all of Peet’s answers were inconsistent with his statements in exhibit 11, the exhibit upon which he was being examined. The latter view was shared by the plaintiff’s attorney who, as he read this exhibit to the jury commented : “That is just what the boy said.”

The plaintiff further complains that the defendant sought to impeach Peet when there was no basis for the impeachment. Peet was asked (referring to exhibit 12): “Was this question put to you and did you make this answer at that time:

“ Q. Was there anything to obstruct the view of either the derail or the derail sign from your position on the motor car?
“ A. The sun was shining in my eyes and I didn’t see it.’ ”

The court overruled the objection that the answer was not inconsistent with Peet’s testimony. The court’s ruling was correct. Although Peet had testified that the sun obstructed his view he also had testified that the derail was the same color as the track, that the sign was almost unpainted and was not more than six inches above the surrounding weeds. If these conditions prevailed at the time of the accident it is likely that he would have said so four days later when he was asked if anything obstructed his view of the derail or the sign. If a witness fails to mention facts under circumstances which make it reasonably probable that he would mention them if true, the omission may be shown as an indirect inconsistency. Carroll v. Krause, 295 Ill App 552, 15 NE2d 323 (1938); Cleary, Handbook of Illinois Evidence, 2nd ed, § 9.7.

The plaintiff complains that the trial court informed the jury that they would have exhibits 4 and 11 in the jury room and that he stated, in chambers, after the case had gone to the jury that the exhibits would go to the jury. The plaintiff argues that impeaching documents cannot be taken to the jury room, Nordhaus v. Marek, 317 Ill App 351, 45 NE2d 993 (1943); Nelson v. Northwestern El. R. Co., 170 Ill App 119 (1912). We agree with the plaintiff that the judge was mistaken when he made these statements but the plaintiff was not harmed by the mistakes because the documents did not go to the jury.

The plaintiff complains that the judge recalled the jury and read the statements to them. This is not a just complaint because her counsel stipulated that this could be done. Also unjustified is the complaint that the stipulation was forced on her counsel. The court did not confront her counsel with a “Hobson’s choice” as is argued here. There was no ultimatum that the statements would go to the jury unless he agreed to the court’s reading them. Rather, the record indicates that the court was persuaded by the attorney that it would be error to send them to the jury. After the court said that they would go to the jury room he asked to see the cases the plaintiff was citing. It was after the cases had been read that the court suggested the solution. The plaintiff and the defendant agreed to the suggestion which resolved a difficult situation and which was a fair solution to the procedural snarl for which they, more than the court, were responsible.

The plaintiff’s final complaint is that the defendant’s argument was prejudicial. Once again, an understanding of this complaint necessitates recounting the background of the argument and the context of the allegedly prejudicial remark. As we have mentioned there was a dispute whether the derail warning sign was obscured by weeds growing in its vicinity. A witness for the plaintiff described these weeds as perennials, three to four feet tall, which were there from the year before, he said they were hemp weeds the tops of which break off for the winter but the stalks remain standing. The defendant presented a professor of botany from Iowa State University who was shown photographs taken the day after the accident of the area near the derail sign; he said the weeds visible in the pictures were not hemp, that hemp was an annual weed which grows from seed each spring, that the plant that made up the bulk of the discernible vegetation was an annual which when full grown would not reach a maximum height of more than 18 inches. In discussing these witnesses the attorney for the defendant remarked that the plaintiff’s witness had said:

“. . . that there were weeds four feet high around there. Four to four and a half feet high. He said that he never saw the derail and then he went further than that and I asked him what kind of weeds those were and he said, ‘hemp weeds,’ and to make it a little better he said they were second year growth. You could see where they had come out from the stalks and he said, ‘You know, in the winter,’ he said, ‘just the tips fall off. Just the tips fall off, and then they grow out.’ That is when we brought this professor in from Iowa, the botany man at Iowa, because that just isn’t so.
“He couldn’t identify all the weeds in there because this is the early spring, June 5th, mind you, when most growth starts in May. This is June 5th, and he told you that most of these things hadn’t progressed to the point where they are even identifiable. Some of them he could identify, but he did say there was no hemp in there.
“In other words, certain things you can recognize. Certain growths, you cannot. You might not be able to say what they are and he told you there wasn’t any hemp in there.
“He said more than that. Hemp does not do that, does not grow from a stalk. He said that different hemp weeds come up from the ground each year. Now, you aren’t going to get four feet, four and a half foot growth of any weed by June 5th.
“You know, this happened out there in Iowa and people in that area know the conditions there much better than we do. If the plaintiff in this case had a lawyer out there in Iowa you couldn’t convince any group of residents around that area that there would be any four and a half foot weed growth.”

The plaintiff’s attorney objected to the last remark. The court sustained the objection and instructed the jury to disregard the statement. The defendant went on:

“You are asked to do that. You are asked to believe that there would be such a growth in this case.”

The court sustained a second objection, struck the defendant’s remark and again instructed the jury to disregard it.

The plaintiff sees in these remarks a reflection on the propriety of her bringing her cause of action in the courts of Cook County and engaging a Chicago lawyer. She argues that she had a right under the law to have her case tried in Cook County and that the defendant should not have questioned this right before the jury, and that the right “could not be diluted by a plea to the jurors that the action was brought in Cook Counts'- since Iowa residents would not believe certain facts.” We believe the plaintiff’s apprehensions are magnified beyond reason. The defendant’s argument concerned Iowa weeds. While the remark about an Iowa lawyer was improper and the assertion that Iowa residents would know how high weeds would be early in June went beyond the evidence, the comments were relatively innocuous and the court promptly struck them and told the jury not to consider them. Even if the jury drew the farfetched inferences from the comments that the plaintiff does the court’s decisive ruling removed any resulting injury. The plaintiff also complains of another part of the defendant’s argument but we believe there is no merit to her complaint.

There was a solid evidentiary basis for the jury’s verdict and neither the trial involvements nor the procedural deviation, nor the defendant’s final argument deprived the plaintiff of a fair trial. The judgment of the Circuit Court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lorenz Bliss, Defendant-Appellant.
    Gen. No. 50,313.
    First District, Third Division.
    July 14, 1966.
    Rehearing denied December 2, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Lorenz Bliss was indicted for selling narcotics. A jury found him guilty and the court imposed a penitentiary sentence of ten to fifteen years.

The contentions made in this appeal are (1) the cross-examination of the chief witness for the prosecution was unduly limited; (2) an instruction bearing upon this witness’ credibility was erroneously refused; (3) the credibility of this witness was improperly rehabilitated; (4) the State was allowed to present evidence that the defendant was guilty of crimes other than the one for which he was indicted and (5) the defendant’s counsel was improperly restricted in his final argument to the jury.

The State’s chief witness was James Wilson, an informer. On the night of June 14, 1963, he conversed with Officer Thomas King of the Chicago Police Department Narcotic Unit at the department’s Central Police Station. After being searched he entered the automobile of Officer Howard Anthony and was driven to the vicinity of 39th Street and Cottage Grove Avenue, Chicago. Around 11:00 p. m., while Wilson and Anthony were sauntering about they met Bliss, an old acquaintance of Wilson’s. Wilson told Bliss that his friend wanted to buy some narcotics. Bliss said he had “some stuff” but would not do business with a stranger. Wilson turned to Anthony and was given $70. Wilson gave the money to Bliss as they walked across the street towards Bliss’ car. They entered the car and drove away. Anthony followed them across the street but Bliss would not allow him to accompany them. At 60th and Morgan Streets Bliss left the car. He returned in about 20 minutes and gave Wilson, who had remained in the car, a foil packet. They then drove back to the vicinity of Cottage Grove and 39th where Wilson got out, walked to Anthony’s auto and gave him the packet.

Officer King and three other officers followed Anthony’s car to 39th and Cottage Grove. King saw Wilson and Anthony talk to a man who he later learned was Bliss. He saw the man and Wilson drive away and trailed them in his unmarked squad car. He testified that he saw the man leave his car and return; Wilson remained in the car and was alone while the other man was absent. The squad car followed them back to where Anthony was waiting and King saw Wilson walk to Anthony’s auto. King received the packet from Anthony. A laboratory analysis showed its content to be heroin.

Officer Anthony corroborated the testimony of Wilson as to the events that took place in his presence. He further testified that Bliss first approached them; that he gave the sum of $70 to Wilson because Bliss wanted that amount for a “spoon of heroin.” He said Wilson kept the money in his hand. Anthony walked a few paces behind Bliss and Wilson as they crossed the street and he saw Wilson hand the money to Bliss. Bliss refused to let Anthony go along in his car; he said he would get the “stuff” but Wilson would have to act as the in-between man. He saw Wilson leave with Bliss and return with him. Although Anthony, or King and the officers who accompanied him, could have placed Bliss under arrest, they did not do so. He was not arrested until two months later.

The defendant testified that he knew Wilson by the name of Patrick Judge and had known him since he was five years old. He said he was approached by Wilson and a stranger on the night in question and the latter said, “I am trying to get some stuff.” Bliss replied, “I don’t know what you are talking about” and walked away. Wilson then reapproached him and said he had a chance to get some money out of a man he was with and asked Bliss to help him by driving him away. Bliss was going south and said, “If you want to ride with me you can ride with me.” When he arrived at 60th and Normal he told Wilson this was as far as he was going and asked, “What are you going to do?” Wilson replied he would stay in the car a little while. When Bliss returned 30 or 40 minutes later Wilson was still there. He told Wilson he was driving back to 39th Street, did so and parked his car close to where it had been parked before. Wilson and he then parted. He denied receiving money from Wilson or selling him narcotics.

The first point urged by the defendant is that he was not allowed to cross-examine Wilson about promises of leniency made to him by the police in return for his testimony in this case. It is argued that latitude should be permitted in the cross-examination of an informer and that it is always proper to inquire into a witness’ motive for testifying and about his hope for reward or expectations of leniency. We agree that great freedom should be permitted in such a cross-examination and the trial judge in this case allowed just that kind of an examination. An extensive and intensive cross-examination was permitted which brought out that Wilson had made his living by stealing, that he had been addicted to narcotics, that he had been imprisoned, under the name of Patrick Judge, once for selling narcotics and the second time for the possession of them, that he had been arrested in March 1963, and was in jail March and April 1963, on a charge of possessing narcotics and that the charge had been dismissed because of his cooperation with the police. His character, background, possible bias and relations with the police were explored thoroughly. We have perused the record and find no question asked of Wilson which was related to a promise made to him in return for his testimony in the present case. He had been asked questions and he had answered them concerning his not being indicted on the charge for which he was arrested in March 1963. He was then asked repetitious questions about the same subject, one of them being: “Well, they promised you that [to dismiss the March 1963 charge] didn’t they?” An objection was sustained and this is the limited cross-examination complained about. Wilson had already testified that the charge was dismissed and the reason for the dismissal. The question about a promise to dismiss was both repetitious and superfluous. Moreover, the question had nothing to do with the prosecution of Bliss. There was no Bliss case at that time. The Bliss case did not originate until June 1963 and was not tried until August 1964.

The contention that the court erred in refusing an instruction bearing upon Wilson’s credibility is likewise predicated upon an inaccuracy. The defense submitted an instruction which stated that, “ [T] he testimony of an admitted narcotics addict should be received by the jury with great caution and suspicion and it should be weighed with great care. . . .” The court gave a similar instruction concerning the testimony of an informer but rejected the one dealing with an addict because Wilson had not admitted that he was a narcotics addict. Wilson freely admitted that he had been addicted to drugs for years but denied that he was at the time of the trial. The defendant argues that the instruction was proper because Wilson was using narcotics “up until two months prior to trial, and there was no showing of medical or other cure, and on this record the informer was an addict.” There was, no evidence that Wilson was a narcotics addict until two months before the trial. Wilson testified that he was treated for his addiction while he was in the County Jail in March and April 1963, that he had been cured and had not used narcotics up to the time of the trial of the present case. The case was tried in August 1964. One year and four months intervened between the cure and the trial. The case of People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1959), is cited as holding that an addict who has been cured for two years is still to be considered an addict at the time he testifies at a trial for the purpose of fixing the standards by which his testimony is to be judged. The defendant is also wrong about the Boyd case. There were two informers in the Boyd case. One acknowledged that he had been a dope addict for five or six years. He said that he had been cured a couple of times, the last time about two years before the trial. However, he stated that he “had been off and on dope ever since.” The second informer was also a dope addict. He never testified he had been treated for, or cured of, the addiction; he merely said that he “hadn’t used dope for about six months.” This is far different from the present case wherein the informer testified that he had been treated and cured sixteen months before the trial and that he had not used narcotics since he was cured. There was no evidence to the contrary. Under this testimony Wilson could not be considered a narcotics addict at the time of the trial and he certainly was not an “admitted” addict. The instruction was properly refused.

The defendant’s third point rests on a more secure footing. After the extensive cross-examination of Wilson the State called Officer Anthony as a witness and asked him, over objection, whether he had previous dealings with Wilson and if he found his information to be reliable. He answered affirmatively. A motion was made to strike the answer but it was allowed to stand. At a conference in chambers the court stated that Wilson’s credibility had been placed in issue and it was therefore permissible for the State to show that the police had used him as an informer and found him to be reliable. Rehabilitation of Wilson’s credibility was permissible but not by the method used. This was not the situation where reasonable grounds for an arrest without a warrant may be established by an arresting officer’s testimony as to the past reliability of an informer (People v. McFadden, 32 Ill2d 101, 203 NE2d 888 (1965); People v. Durr, 28 Ill2d 308, 192 NE2d 379 (1963)). In the trial of an accused the reliability of the informer, if impeached or assailed, cannot be sustained by the arresting officer’s, or any other witness’, experience with the informer or his personal estimation of the informer’s credibility. Wilson’s general reputation for veracity could have been shown, but it was error to receive Anthony’s individual opinion of his veracity. Gifford v. People, 148 Ill 173, 35 NE 754 (1893).

The next point also concerns the testimony of Officer Anthony. The defendant was not arrested until two months after the sale and the State sought to explain that the arrest was delayed because the police wanted time to uncover the source of the narcotics. Anthony was asked the difference between a controlled and an undercover purchase of narcotics. He answered, over objection, that:

“A controlled buy is the purchase of narcotics which at all times we have a control of the money and the person that is making — attempts to make the purchase and the money is recorded and there is an immediate arrest; whereas an undercover purchase is a purchase where as you make a purchase, you have a delay between making another purchase and you attempt to get to the source of supply.”

Anthony then testified that the purchase made from the defendant was “an undercover buy.”

The defendant sees in Anthony’s response implications that he made sales of narcotics other than the one for which he was on trial and that the police knew him to be part of a narcotics ring. The phrasing of Anthony’s explanation was infelicitous but the inferences the defendant draws from the explanation are farfetched. The inference could be drawn that the police intended to watch the defendant to see if he made another sale; but a further inference could be drawn that he made no other sale because, after keeping him under surveillance for two months the police arrested him for the sale to Wilson. Furthermore, even if the defendant’s inferences could be said to be reasonable, they could do him no more harm than he did to himself. After his arrest, in denying the sale to Wilson, he said: “I have sold narcotics but I have never sold a $70 package”; and in his testimony he said that Wilson had not asked him for narcotics for more than two years before he ran into him in June 1963. The former statement was an admission of narcotic sales and the latter carried the implication that he had done business with Wilson on prior occasions.

The last point made by the defendant is that the court restricted his attorney’s final argument. The point comes about this way: on the night of the sale Wilson told the police that the defendant’s name was Lorenz Harris and this name was used by them in their report. In his testimony Bliss said he had never been known by the name of Harris. In his closing argument the defense counsel stated that the State had not produced evidence that the defendant was known as Harris. An objection to this was sustained. It is contended that by sustaining this objection the court hindered the defense in attacking the credibility of the prosecution’s case and impaired the defense efforts in convincing the jury that the defendant’s version of the night’s events was the true one. We see no harm to the defendant in the ruling made by the court. First of all, there was no conflict as to Bliss’ right name and no question about his identity. Secondly, the defense counsel was mistaken in his contention. There was evidence in the record that the defendant was known as Harris. After the State had concluded its case the defendant’s attorney recalled Officer King for further cross-examination. The questioning pertained to the use of the name “Harris” by the officers in their police report and by Wilson. On redirect examination the State inquired whether the defendant was known by any name other than Bliss. The witness replied that he was known as Bernard Murray, Lorenz Harris, Lorenz Bliss and by one other name. The court therefore properly curtailed the defendant’s argument that the State had not produced such evidence.

In our review of the case we have found that just one error was committed: the testimony of the police officer that he had found Wilson to be reliable. The question is whether this error requires the conviction to be reversed. If the State’s case depended upon Wilson’s testimony we would think that the method used to restore his credibility after it had been attacked was prejudicial error. The defendant contends that the State’s case does depend upon Wilson alone. The very first two sentences of the defendant’s brief are these: “The conviction rests on the testimony of the informer. No police officer ever saw any transaction occur between the defendant and the informer.” These statements are patently incorrect. The police officers did see transactions occur between Wilson and Bliss and their testimony substantiated important elements of Wilson’s testimony. The officers were with him when he talked to Bliss; they heard Bliss say that he had narcotics and would sell some to Wilson; they heard Bliss ask for $70; they saw Wilson give Bliss the money; they saw Wilson ride away with Bliss and return with him; they kept Wilson under constant observation and saw him talk to no one but Bliss; they searched Wilson before he met Bliss and no narcotics were found on him; after he returned from being with Bliss he had a package of heroin. He must have gotten the package from Bliss or found it in Bliss’ car; that he got it from Bliss is proved by the conversation Officer Anthony had with Bliss. The only link in the chain of events that the police did not see was Bliss handing the heroin to Wilson. This missing link is not consequential in view of the many links they did witness. The corroboration given Wilson’s testimony established the truth of his testimony. The fact that he had been found reliable in past transactions was relatively unimportant evidence-wise because of the fact that his veracity in the present transaction was convincingly established by the supporting testimony of the police officers. Under the facts of this case we do not believe the error was prejudicial.

The judgment of the Criminal Division of the Circuit Court will therefore be affirmed.

Affirmed.

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