author: Mr. JUSTICE SIMKINS

text:
    Quincy Trading Post, Inc., Plaintiff-Appellant, v. The Department of Revenue, Defendant-Appellee.
    (No. 11822;
    Fourth District
    July 5, 1973.

      Drach, Terrell & Deffenbaugh, of Springfield, for appellant.
    William J. Scott, Attorney General, of Chicago, (Warren K. Smoot and John D. Whitenack, Assistant Attorneys General, of counsel,) for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The plaintiff, an automobile dealer, seeks judicial review of an administrative determination by the Department of Revenue which resulted in the plaintiff receiving a notice of tax deficiency due under the Retailer’s Occupation Tax.

On June 29, 1970, the plaintiff received a notice of tax liability from the Department of Revenue alleging a total liability of $32,109.83, including penalty and interest, as well as the tax liability. The plaintiff filed a protest with the Department of Revenue requesting a hearing on his alleged tax liability, and such a hearing was held before a hearing officer on October 15, 1970. At that hearing, the plaintiff was represented by counsel. The plaintiff’s president was present but did hot testify. The plaintiff contended that the Department’s assessment was erroneous because some of the sales included by the Department in determining its adjusted assessment were not subject to the tax because they were sales for resale, and the other items were interstate sales exempt from the tax. The plaintiff-taxpayer introduced no evidence.

The Department of Revenue introduced sixteen exhibits, thirteen of which were notices and other writings dealing with the setting of the hearing and the adjusted assessment. Three exhibits and the testimony of two Department of Revenue auditors constitute the substance of the prima facie case.

One auditor testified for the Department of Revenue as follows: He was assigned by the Department to examine the books of the plaintiff covering the period of January 1967 through June 1969. Forms 558 were included in the taxpayer’s records for 312 of the 317 transactions involving out-of-state sales. The completion of such forms is the proper procedure for showing a transaction as interstate and a valid 556 form is acceptable evidence of an exempt sale. He found some 556 forms blank, .except for the purchaser’s signature, he pursued the inquiry and was told by the bookkeeper, to whom the plaintiff had referred him, that the forms were signed in blank at the time of the sale, and then filled in by the bookkeeper, using the purchaser’s residence address as the delivery point. The auditor said that when he requested some proof of the expenses of out-of-state delivery; the bookkeeper said that there was none, and that the used car manager told him' that the buyers took delivery of the cars at the taxpayer’s place of business in Quincy.

The hearing officer found that the defendant’s exhibits established a prima facie case, and that the taxpayer’s contention that the sales giving rise to the disputed tax were automobiles for resale and automobiles sold out of state did not overcome the prima facie case. It was held that thirty of the thirty-six certificates for resale submitted by the plaintiff to establish the exempt status of some other transactions were insufficient to support the exemption because dated after the period of the audit. As to the alleged sales made out of state, the hearing officer found that the auditor’s testimony concerning the questionable reliability of the 556 forms was not hearsay and was admissible, but that the defendant would have established a prima facie case without it. The hearing officer added that the auditor’s testimony supported the defendant’s prima facie case which clearly showed the plaintiff’s sales did not qualify as interstate sales exempt from the retailer’s occupation tax. The hearing officer then upheld the Department of Revenue’s findings and issued a final assessment of $33,345.55, including interest and penalties through November 30, 1970.

Plaintiff filed a complaint for administrative review by the circuit court on December 28, 1970. On June 1, 1971, the circuit court affirmed the final assessment, holding that a court cannot review or reweigh the evidence, but rather only determine whether the decision of the administrative agency was contrary to the manifest weight of the evidence. The court found that the plaintiff did not overcome the Department of Revenue’s prima facie case, but held that if the plaintiff’s contention about the hearsay nature of the testimony of the auditor as to the statement of plaintiff’s employees was sustained, and that evidence stricken, then plaintiff’s contention that he had shifted the burden back to the-defendant would have merit. However, the court held that since the plaintiff was a corporation, the three persons making the statements were employees speaking in the course of their employment and their statements were admissible as an admission of an opponent party, an exception to the hearsay rule. The court stated that the' plaintiff had ample opportunity to overcome the defendant’s prima facie case by introducing evidence, but chose not to do so.

The Retailer’s Occupation Tax Act (Ill. Rev. Stat., ch. 120, par. 443) provides that:

“As soon as practicable after any return is filed, the Department shall examine such return and shall, if necessary, correct such return according to its best judgment and information, which return so corrected by the Department shall be prima facie correct and shall be prima facie evidence of the correctness of the amount of tax due, as shown therein.”

The plaintiff-taxpayer here first asserts that the Department of Revenue did not present a prima facie case sufficient to legally support the total liability alleged. However, there is a statutory burden upon the taxpayer to establish by competent evidence that the corrected return of the Department of Revenue is not correct, and until he provides such proof, the corrected returns are presumptively correct. (Copilevitz v. Department of Revenue, 41 Ill.2d 154, 242 N.E.2d 205.) The plaintiff recognizes that presumption, but still states that the Department of Revenue has a burden to show that the taxpayer made sales that are taxable, and that they were not properly reported. The plaintiff argues that the defendant’s exhibits are only copies of notices and conclusions that more tax is owed. In Copilevitz, the taxpayer did not dispute that during the period of time in question, he had receipts from sales exceeding $168,000, which he did not report to the Department. Here the plaintiff-taxpayer does not deny selling the vehicles in question, but asserts that they were exempt because sold to non-Illinois residents. Forms 556 were in existence for almost all of the sales, but the auditor concluded that they were deficient and not corroborated, and assessed the higher amount on the grounds that there was no proof the cars were delivered out of state to the non-resident purchasers. Section 441 of chapter 120 imposes a tax on all tangible personal properties sold and delivered in Illinois. The point of delivery controls, so even if the buyer is a non-citizen of Illinois; if he makes the purchase and takes delivery in Illinois, the tax is due. Superior Coal Co. v. Department of Finance, 377 Ill. 282, 36 N.E.2d 354.

A proposed assessment of the occupation tax, being a correction of the return filed by the taxpayer, is prima facie correct, but where the only competent evidence at the hearing is the taxpayers books and his own testimony, which is not so inconsistent or improbable itself as to be unworthy of belief, the prima facie case is overcome, and the burden shifts to the Department of Revenue to prove its case by competent evidence.' (J. H. Walters & Company v. Department of Revenue, 44 Ill.2d 95, 254 N.E.2d 485.) Plaintiff seems to feel that since the Form 556 is presently the only form required to report claims of tax exempt sales and that by showing the forms were completed for at least most of the sales in issue, he has automatically rebutted the Department’s prima facie casé. However, section 446 of the Retailer’s Occupation Tax Act says:

“It shall be presumed that all sales of tangible personal property are subject to tax under this Act until the contrary is established, and the burden of proving that a transaction is not taxable hereunder shall be upon the person who would be required to remit the tax to the Department if such transaction is taxable. * * ft”

As to what is inherently believable; the plaintiff-automobile dealer asserts that it delivered individual used cars to private buyers in states as far away as Washington and Florida, and that would not seem to be the general practice. The plaintiff offers no evidence in support of that contention, not even the 556 forms which it depends upon to establish the tax exemption.

As to overcoming the defendant’s prima facie case, in Du Page Liquor Store, Inc., v. McKibbin, 383 Ill. 276, 48 N.E.2d 926, the taxpayer’s president personally testified and introduced a daily schedule of alleged sales as recorded in the ledger sheets into evidence to rebut the defendant’s corrected returns. The supreme court there said that before the presumption attaching to the Department’s amended returns is overcome:

* * [T]here should be some evidence introduced which is identified with books or records as kept by the taxpayer and supported by proof of fact entitling it to be admitted as evidence or facts gathered from some other sources which imports equal verity. #

In Copilevitz (41 Ill.2d 154, 156), the supreme court said that the Act and its regulations are “explicit in its demand for documentary evidence * * The language of that case indicates that evidence corroborating statements of the taxpayer and other supporting data is necessary. A taxpayer has all of his books and records, so, if wrongfully assessed, he could easily overcome the prima facie case of the department at the hearing procedures provided. In short, the pláintiff may not prevail by merely saying its own return was correct, and that the revenue department must prove its return correct. Simply questioning the Department of Revenue’s return or denying its accuracy does not shift the burden to the Department of Revenue. Also, merely submitting the 556 forms does not automatically overcome the prima facie case without some corroborative evidence of delivery out of state, or at least some testimony of the plaintiff-taxpayer. Even then there must be some proof sufficient to overcome the Department of Revenue’s prima facie case. (Feldstein v. Department of Finance, 377 Ill. 396, 36 N.E.2d 557.) However, as stated before, here the plaintiff did not offer any evidence, nor did it produce any witnesses.

The plaintiff questions the admissibility of statements made to the auditor by the general manager, bookkeeper, and used car manager of the plaintiff while the audit was being conducted. The reviewing trial judge held that the testimony might have been hearsay, but was an exception to the rule because the three were employees of the plaintiff corporation speaking in the scope of their employment. Plaintiff points out that none were identified; there was no evidence that they worked for the plaintiff, or when the statements were made, or to what period of time the statements concerning the manner of doing business referred, or even the context of the statements.

The complained-of testimony was given by the auditor in explaining why he felt the 556 forms were deficient. He testified that the plaintiff’s general manager took him to the bookkeeper and told her to give him whatever aid he needed. The auditor said that after he . saw some 556 forms signed by purchasers in blank, and then later filled in by the bookkeeper, that the bookkeeper told him the forms were signed by the purchasers when the sale was made, and the remainder filled in later with the buyer’s address inserted as the delivery point. When the auditor asked the bookkeeper to support the 556 forms by some records of delivering cars to other states, he was told that there were none. The auditor testified that he was told by the used car manager that the buyers picked up the cars at the plaintiff’s place of business in Quincy, but would not pay the Illinois tax in addition to their home state tax.

The reviewing trial court found that even if the statements were hearsay, they were an exception to the rule by being admissions of a party, because made by an agent within scope of his employment. The manager clearly had authority to direct the auditor to other employees in the course of his audit. The bookkeeper was instructed to answer the auditor’s questions and provide him with any records, and her reference to an expense account for the out-of-state deliveries would seem to have been within the scope of her employment. Likewise, the used car manager’s statements concerning the picking up of cars would seem to be within the scope of his employment. Statements made by an agent in the exercise of his duties pertaining to matters within the scope of his authority may constitute an admission as an exception to the hearsay rule. Scovill Manufacturing Co. v. Cassidy, 275 Ill. 462, 114 N.E. 181; 2 Wigmore, Evidence (1904 ed.) 1278.

Generally, any statement made by a party or in his behalf, which is inconsistent with his position in litigation, may be introduced into evidence against him. Nelson v. Union Wire Rope, 31 Ill.2d 69, 199 N.E.2d 769.

Finally, the plaintiff argues that the Retailer’s Occupation Tax is not applicable to the sale of an automobile in Illinois to a nonresident. Under section 441 of the Retailer’s Occupation Tax Act, a tax is imposed on all tangible personal property sold and delivered in Illinois. The point of delivery controls so that even if the buyer is a non-citizen in Illinois, if he purchases and takes delivery of the property in Illinois, the tax is due. In July 1971, the following was inserted in section 441:

“* * # nor is such tax imposed upon the sale of a motor vehicle in the State to a nonresident even though said motor vehicle is delivered to said nonresident in this State, if said motor vehicle is not to be titled in this State, and if a driveway decal permit is issued to said motor vehicle as provided in Section 3 — 601(f) of the Illinois Vehicle Code. * *

So, plaintiff contends that a basic question here is whether the cars in question were delivered out of state, or delivered to non-residents in Illinois, and that it is rendered moot by the above quotation indicating that the place of delivery is no longer relevant. However, tire change in section 441 exempting motor vehicles sold for use outside Illinois by nonresidents went into effect in 1971 — with no indication of retroactivity— and here the tax was assessed for the period January 1967 to June 1969. The law in Illinois is well settled that statutes are prospective in their operation and will not be construed to have retrospective operation unless the language used in the statute is so clear that it will admit no other construction. People ex rel. Eitel v. Lindheimer 371 Ill. 367, 21 N.E.2d 318.

Plaintiff concedes that deference is generally given by courts to findings of administrative agencies on questions of facts and matters of policy within their province, but argues that rule does not relieve the court of its duty to determine the ultimate question of whether or not the transactions in issue here are taxable under the provisions of the statute. This court’s function does not include reweighing the evidence which was before the administrative body and only if its order is clearly against the manifest weight of the evidence would it be set aside. (Rhinehart v. Board of Education of Bloomington School District #87, 132 Ill.App.2d 1078, 271 N.E.2d 104.) Courts give deference to findings on questions of fact by the Department of Revenue, reversing its decision only where its findings are against the manifest weight of the evidence. J. H. Walters & Company v. Department of Revenue, 44 Ill.2d 95, 254 N.E.2d 485.

Even without the testimony of the auditor as to what he was told by employees of the plaintiff, he did testify to seeing 556 forms signed in blank by the purchaser and later seeing the same filled in completely, and others apparently not originals and with two claiming exemptions despite evidence of Illinois delivery. Also, thirty out of thirty-six resale certificates had dates subsequent to the alleged purchase dates and in the face of all of this the plaintiff offered no evidence in support of its claimed exemptions, nor did it call any of the employees to testify.

The Department of Revenue clearly presented a prima facie case which was not rebutted by plaintiffs merely claiming to have made exempt sales to out-of-state purchasers without corroborative evidence. Therefore, the final amended assessment issued by the hearing officer and upheld by the circuit court of Adams County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE CRAVEN.

license: Public Domain

text:
    John H. Balster, d/b/a Balster Truck Service, Plaintiff, v. Road District No. 11, Defendant.—(Road District No. 11, Third-Party Plaintiff-Appellee, v. Lawrence R. Jordan et al., Third-Party Defendants-Appellants.)
    (No. 11833;
    Fourth District
    July 5, 1973.
    Eldon H. Becker, of Petersburg, for appellants.
    Samuel S. Blane, of Petersburg, and Free & Free, of Springfield, (Edward G. Free and Ronald W. Olson, of counsel,) for appellee.
   Opinion by

Mr. PRESIDING JUSTICE CRAVEN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Savage, Defendant-Appellant.
    (No. 11875;
    Fourth District
    July 5, 1973.

      Paul Bradley, of Defender Project, of Chicago, for appellant.
    John G. Satter, Jr., State’s Attorney, of Pontiac, (John A. Beyer, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from the Circuit Court of Livingston County. On February 4, 1971, defendant-appellant Larry Savage was sentenced for the crime of robbery, to a term of 3 to 8 years in the penitentiary. This sentence was imposed in the Circuit Court of Sangamon County. On October 2, 1971, defendant was serving that sentence in the Pontiac Branch of the Illinois State Department of Corrections at Pontiac, Illinois.

On October 11, 1971, the State’s Attorney of Livingston County filed an information charging defendant with the offense of aggravated battery arising from a melee within the prison on October 2, 1971, during the course of which defendant allegedly struck one Andrew Ekel, a correctional officer in the prison. After a bench trial, during which defendant offered no evidence, he was found guilty and sentenced to 9 months at the Illinois State Penal Farm at Vandalia, which sentence was ordered to run consecutively to the sentence above referred to as being imposed in the Circuit Court of Sangamon County. This appeal ensued.

Defendant first argues that the evidence fails to establish his guilt beyond a reasonable doubt. We see no reason to recite the evidence in detail. The victim Ekel and another guard, LeRoy Homstein, both testified that Savage struck Ekel with a broom or mop handle. There were minor variations in the testimony, but as to the essential element of defendant striking Ekel they were in agreement. The trial judge heard the testimony, the issue of credibility is for him, not us, to determine. The testimony of a single eye witness is sufficient to establish guilt beyond a reasonable doubt when the identification by the witness is clear and convincing. (People v. DeArmond, 5 Ill.App.3d 831, 284 N.E.2d 474.) Here the testimony as to the commission of the offense was positive, direct and given by two witnesses whose testimony was not impeached. We therefore find the argument unpersuasive.

Defendant was convicted of a violation of Ill. Rev. Stat. 1969, ch. 38, sec. 12 — 4(b)(6), which provides that one is guilty of aggravated battery who in committing a battery knows the person harmed to be a correctional officer engaged in the execution of any of his official duties. Defendant’s contention is that the evidence failed to show that officer Ekel was in the exercise of his official duties when struck and that the State failed, therefore, to establish an essential element of the offense. We disagree. Ekel testified that he was in the prison, in uniform, at the time the riot commenced. His regular shift had terminated some 30 minutes earlier. He was asked why he was still present at the prison after his shift had concluded and responded:

“I was unit moderator for unit 18, which is a small group of detail and tower men, and I was the moderator, we were having a meeting in the captain’s office.”

He also testified that this was a normal weekly meeting for which he was compensated in that he was given time off from his regular work schedule for attending the meetings. This evidence clearly supports the finding of the trial judge that Ekel was in the performance of his official duties at the time of the offense.

Defendant’s final allegation of error is “Whether the failure of the prosecution to afford the defendant a prompt preliminary hearing as required by Article I, Section 7 of the Constitution of the State of Illinois rendered the indictment void?”. As previously noted the initial charge was by an information filed October 11, 1971. The record shows that defendant was brought before the court on October 14, 1971, given a copy of the information, the .charge explained to him. Defendant refused appointment of counsel, defendant saying that he could retain counsel if he could make a phone call. The court directed that defendant be afforded that opportunity and continued the case at defendant’s request, to October 21, 1971. On October 21st, the State’s Attorney appeared in open court, the defendant not being present, and advised the court that he had been contacted by Attorney Richard Seltzer, of the firm of Isham, Lincoln and Beale who were trying to secure counsel for the defendant but that counsel would not be available today. The court then continued the case until November 9, 1971. On November 5, 1971, the grand jury returned the indictment upon which defendant was subsequently convicted and it was predicated upon the same charge contained in the information. On November 17, 1971, the defendant again appeared in open court, without counsel, and was handed a copy of the indictment. The defendant again insisted that he wanted to secure his own counsel and the court continued the case to the 16th of December. On December 16, 1971, the defendant again appeared without counsel, said that he had not yet retained counsel and again refused appointment of counsel. The court then continued the case until January 5, 1972, at which time the defendant again appeared without counsel. He advised the court that he had retained one Jeffrey Haas but that he had failed to appear. The court requested that defendant request counsel to write to the court and advise it officially of the representation. The court then continued the case to January 17, 1972, at which time the defendant again appeared without counsel. The court then stated that he was going to appoint the public defender. The defendant again refused. The court then stated that he was going to appoint counsel despite defendant’s objections since the time for trial was approaching, but that if defendant secured counsel that was a choice the defendant could pursue. Finally, on January 31, 1972, counsel appeared for defendant and represented him through the remainder of the proceedings. At this time counsel requested a preliminary hearing; the request was granted and the preliminary hearing was subsequently held on March 2, 1972. On the same day the counsel filed a motion to dismiss the indictment because the defendant had not been given a prompt preliminary hearing as required by article I, section 7, of the Constitution of 1970.

After an appraisal of this record and of all the relevant facts and circumstances, it does not appear that there was any violation of the defendant’s constitutional right to a prompt determination of probable cause. See People v. Kent, 54 Ill.2d 161, 295 N.E.2d 710; People v. Hendrix, 54 Ill.2d 165, 295, N.E.2d 724.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Arthur, Defendant-Appellant.
    (No. 56778;
    First District (5th Division)
    March 23, 1973.

      Opinion on Rehearing Filed June 1, 1973.

    Thomas J. Grippando, of Legal Aid Society, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Mark R. Harms, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SULLIVAN, J., took no part.


text:
    Raymond F. Bochantin, Sr. et al., Plaintiffs-Appellants, v. Gertrude Schroeder, Defendant-Appellee.
    (No. 57820;
    First District (5th Division)
    June 1, 1973.

      Paul M. Heller and Harvey L. Walner, both of Chicago, for appellants.
    McKenna, Storer, Rowe, White & Haskell, of Chicago, (Royce Glenn Rowe, of counsel,) for appellee.
   PER CURIAM.

SULLIVAN, J., took no part.


author: Mr. JUSTICE GOLDBERG

text:
    Abdon Rios, Plaintiff-Appellee, v. Niagara Machine & Tool Works, Defendant-Appellant.
    (No. 56435;
    First District (1st Division)
    June 4, 1973.

      Rehearing denied July 5, 1973.

      Clausen, Hirsh, Miller & Gorman, of Chicago, (John R. Caffrey and James T. Ferrini, of counsel,) for appellant.
    Joseph A. Rosin, of Chicago, for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Abdon Rios (plaintiff) brought suit for personal injuries against Niagara Machine & Tool Works (defendant) on a strict tort liability theory. Plaintiff was injured while operating a punch press manufactured by defendant and sold to Hammond Organ Company where plaintiff was employed. A jury returned a verdict in plaintiff’s favor and defendant appeals. No point is raised on the amount of the verdict.

Defendant urges that plaintiff has failed to prove the necessary elements for imposition of strict tort liability as regards the defective condition of the machine when sold and also that the sole proximate cause of plaintiffs injury was an allegedly defective safety device which had been affixed to the machine by plaintiff’s employer. Defendant also urges that the press had been materially changed subsequent to its sale. In response, plaintiff contends that it was defendant’s duty to manufacture and sell a press that was reasonably safe and not unreasonably dangerous; this duty had been breached by defendant and the unreasonably dangerous condition existed when the press left defendant’s control; defendant’s duty to produce a reasonably safe punch press could not be delegated to plaintiff’s employer and the proximate cause of plaintiff’s injury was a condition of the product.

The machine here involved is commonly referred to as a punch press. It is capable of supplying a pressure equivalent to 45 tons. It has an open back which permits the operator to feed it from the back or the sides as well as from the front, depending on the type of process required. It is described as inclinable because it can be tilted toward the rear or front for performance of certain operations. This press was manufactured by defendant sometime during 1956 and was sold to Hammond during that same year. The press was sold and delivered to Hammond without certain parts which were necessary for its operation. The movable part of the press, which descends forcefully during its operation, is called a ram. The table or bottom portion to which the ram descends is an anvil. A die set must be fitted to the ram. The type of die required by the purchaser is then fitted within the die set. A die set is also attached to a bolster which is on the anvil or lower part and a corresponding die is inserted into the lower die set.

When thus equipped, this press may be used in a primary or a secondary type of operation. In the primary phrase, raw material is fed into the press and partly fabricated or, in effect, reduced to the desired size of workable parts. In this type of operation, the machine is used automatically. The only function of the operator is to make certain that an adequate supply of raw material is at hand. This type of operation is referred to as primary or automatic.

In the secondary operation, the blank parts previously prepared by the machine are finished by perforation or other process. In this operation the machine must be hand fed by an operator. He must set the part within the pinch area on the lower die so that it will be properly fabricated by descent of the upper die in the die set affixed to the ram. After setting the part, the operator activates the machine by a foot pedal and the ram descends. It lifts automatically and the operator manually removes the finished part. In this secondary or hand operation, the machine may be used in an upright position or inclined toward the rear and the parts may be inserted from the sides, front or back.

Stanton Cheyney, sales manager for defendant, testified that this press was sold by defendant to Hammond without the dies or die set. It was necessary for Hammond to obtain and install its own dies dependent upon the type of operation for which the press was to be used. The press was sold by defendant without installation of any safety device. Counsel for plaintiff questioned the witness as to whether the machine was reasonably safe for use in the secondary or manual type of operation. The witness testified that, in his opinion, the machine was reasonably safe for operation in this manner without the addition of a safety device.

John Lang testified that he was the fabricating superintendent for Hammond. Some 3000 basic operations, of both primary and secondary nature, are performed in the Hammond punch press department. He testified that in the automatic or primary operation of the press, no safety device would be necessary and the machine could be operated with safety; assuming insertion of the proper die sets and dies and availability of electric power. However, he expressed the opinion that the machine would not be reasonably safe for operation by the manual process in any of its secondary functions unless a safety device was installed. In his opinion, the machine would be very dangerous if operated manually without a safety device. Lang testified that the press in question is activated by the operator by pressure on a foot pedal when used in a secondary operation. Also, the press is fitted with a so-called nonrepeat device which makes it impossible for the ram to descend more than once when the foot pedal is depressed. Thus, pressure on the foot pedal is always required for each individual descent by the ram.

Lang also testified that the type of dies with which the machine was to be fitted and the manner of its operation would determine the type of safety equipment that should be used for secondary or manual operation. He made that determination himself on his own judgment. Hammond installed some type of safety device upon every press prior to the time that it was used for secondary operation. After the occurrence in question,, Lang inspected the machine and found .that the nonrepeat cycle of the press was set and was working correctly.

Plaintiff testified that he was employed by Hammond as a punch press operator commencing in 1956. He was injured bn January 16, 1964, some seven years after purchase of the press by Hammond. Plaintiff was quite experienced in this operation and was in the highest classification of punch press operators. At that time, he was using the press in question for fabrication of bakelite parts each approximately 4" x 6". He was feeding the press in a secondary or manual operation. He had been working about two hours. He was seated on a chair facing the machine. The bakelite parts were preheated by water immersion. The process was that plaintiff would pick up a bakelite piece and seat it on the bottom die with his right hand. He then withdrew his hand from the pinch area and activated the press by stepping on the pedal. The ram would descend, perforate the part and then move upward. Plaintiff then removed the part from the press with his left hand. This was a single stroke machine. This entire operation took about five seconds and plaintiff was expected to fabricate no less than 650 pieces of these parts in one hour. Plaintiff testified that he inserted a part with his right hand and activated the machine. The ram descended. When the ram ascended, he put his left hand into the area to pull out the completed part. The ram then descended again upon his left hand although he testified that he did not depress the foot pedal again.

Plaintiff had worked on other presses for other employers. He testified that different safety devices were used for different jobs rquiring manual operation. Sometimes the operator was provided with a pair of tongs. Other devices used two buttons which it was necessary for the operator to push. Another type of device was that operated by electricity which activated a guard that came down when the ram did. Quite a few of the jobs that he performed involved hand feeding of the press. During his employment at Hammond, there were different safety devices used for different job operations on the same press. Prior to undertaking the operation in question, plaintiff was assisted by a set-up man. He fit the safety equipment to plaintiff and inspected it before the operation started.

In this particular case, Hammond had fitted the machine with a Posson safety device. This mechanism was connected to the ram and also strapped in place around the arms and back of the operator. Every time that the ram came down, the device automatically pushed back the arms of the operator so that his hands would be outside of the danger area. The parties stipulated that at the time in question the safety device failed and became inoperable so that plaintiff’s left hand was not pulled out of the way. The superintendent for Hammond testified that, after the occurrence, he found the Posson safety device inoperable and that this was the cause of the accident.

The remaining witness called by plaintiff was an expert engineer. He examined this machine in November of 1970, some six years after the occurrence. He answered a lengthy hypothetical question by expressing the opinion that the machine in question, delivered without any safety device, was not reasonably safe for use by punch press operators. In his opinion, the Posson device was installed to make certain that the hands of the operator were not within the danger zone when the ram came down.

Plaintiff’s second amended complaint alleged that it was the duty of defendant to design and sell a punch press that “* * * could be operated with reasonable safety by punch press operators, * * *” including plaintiff. It alleged that defendant had manufactured and sold a punch press that was unreasonably dangerous in that it did not have affixed thereto, at the time of sale, required adequate safety devices. Plaintiff’s own testimony was that the ram descended without the application of pressure on the foot pedal. This is contradicted by other credible testimony that the press had a nonrepeat device in good working order which would have made it impossible for the ram to descend more than once after one depression of the foot pedal. The parties themselves stipulated that the safety device had failed and that plaintiff’s hand was thus not removed from the danger zone. It is undisputed that the machine was sold without a safety device as alleged in the second amended complaint. There is also a preponderance of opinion evidence that the machine, when fitted with dies and die sets, could be used with safety in the automatic or primary operation but would be dangerous when used by an operator in secondaiy or manual operations without some kind of safety device.

The decision in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, is generally cited for establishing the elements essential to strict tort liability. It is incumbent upon a plaintiff in this type of case to prove that his injury “* * * resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” 32 Ill.2d at 623.

However, in the case at bar, the question before us is a specialized modification or an extension of the general doctrine of strict tort liability to cover a situation in which the manufacturer has sold his product without the addition of any type of a safety device. The decision in Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401, furnishes a theoretical basis on which to consider the liability in the case at bar. There, the court considered strict liability of the manufacturer of a steel hammer which chipped and broke, injuring plaintiff, after some 11 months of use. The court held that the issue of whether the hammer was defective and therefore unreasonably dangerous was one of fact for the jury. A judgment for plaintiff was affirmed. The court carefully defined the term “defective” as having reference to products “* * * which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.” 42 Ill.2d at 342.

Applying this principle to the case at bar, the central issue here involves a determination of whether the punch press was so defective at the time it left the manufacturer’s control as to create an unreasonably dangerous situation for the operator thereof; or, in other words, whether the press failed to perform in the manner reasonably to be expected in the light of its nature and intended function. (See 42 Ill.2d at 342.) The evidence shows that the punch press was not unreasonably dangerous, and therefore not defective, when it left defendant’s control. When the needed die sets and dies were appended, the machine was not dangerous when used for an automatic or primary operation. On the other hand, when used for any type of secondary operation, which required insertion of the operator’s hands within the danger zone, the machine was dangerous. This was not a defect because, in its secondary or manual operation, the machine did not fail to perform in a manner reasonably to be expected in the light of its nature and intended function.

The record shows that the machine could be made reasonably safe in the secondary operations by the use of a safety device. The kind and type of safety device necessarily varied with the manner in which the machine was set up and the type of function that it was to perform. These devices varied from the use of a pair of tongs for insertion into the pinch area to sophisticated electronic machines which would activate a guard in front of the ram. The precise type of device varied with the type of manual operation in which the machine was to be used. Under these circumstances, if the doctrine of strict liability were extended to cover the situation at bar, the manufacturer of devices of the type here involved would be placed in the impossible position of being compelled to furnish a number of different safety devices covering every conceivable type of manual or secondary operation of the machine.

We believe that the applicable principles may be stated as follows:

where a machine is unifunctional and is unreasonably dangerous in performing this single function without the addition of a safety device, it is defective under the Dunham definition and the manufacturer has a duty to supply such a device with the machine at the time that it leaves his control. In such case, an acceptable safety device should be deemed an integral and indispensable part of the machine. On the contrary, where the machine is multifunctional and where different types of safety devices would necessarily be required to obtain reasonable safety in performing these various functions, no duty should be imposed upon the manufacturer to provide any safety devices before the machine leaves his control. In the latter type of case, the machine would not be defective when it left the control of the manufacturer because it would perform in the manner reasonably to be expected in the light of its nature and intended diverse functions. Therefore it would not be unreasonably dangerous.

In other words, the unifunctional machine is defective and therefore unreasonably dangerous without application of the safety device. The multifunctional machine is not defective and therefore not unreasonably dangerous merely because of the absence of all of fire varied safety devices which might or might not be required for its safe operation. The essential element of reasonability cannot be disregarded.

We believe that the above analysis is supported by the cases. It is our opinion that the results reached in the following few cases bearing upon this issue may be reconciled by application of the above stated principle. In Weiss v. Rockwell Mfg. Co., 9 Ill.App.3d 906, 293 N.E.2d 375, this court considered strict liability for a woodworking machine which was allegedly defective and dangerous because the manufacturer did not provide certain safety accessories. This court held that no liability was imposed upon the manufacturer. Regarding the failure of the manufacturer to provide these accessories, we stated (9 Ill.App.3d 906, 912):

“Implicit in the first reason ascribed is the duty of the manufacturer to recommend to or provide every buyer of the shaper certain accessories. Needless to say,' this would require the manufacturer to confer with every prospective buyer and make a judgment, at his peril, of what the buyer needed. Alternatively, the manufacturer would be under a duty to recommend to or provide the buyer all of the accessories available regardless of how limited was the intended use. No case has been cited, nor do we think one exists, extending the doctrine of strict liability to this extreme.”

The decision in Weiss illustrates exemption of the manufacturer from the duty to furnish a number of varied safety devices which might be required for the safe operation of a multipurpose machine.

An illustration of the opposition situation involving a punch press-limited to the performance of one type of function is found in Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 290, A.2d 281. Plaintiff’s hand was injured in manual operation of a punch press. An expert mechanical engineer testified for plaintiff that there was a custom of the trade not to equip punch presses, such as the one there involved, with safety devices which were later installed by the purchaser. The witness assailed this practice and testified that there was a push button device which “* * * would be appropriate for any of the machine’s normal uses.” (See 290 A.2d at 283.) The court imposed liability upon the manufacturer. The court stressed the fact that one type of safety device was appropiate for all of the normal uses of the machine in question. (See 290 A.2d at 285.) We believe that the same result would be reached by this court on facts such as presented in Bexiga where the evidence showed that there was one type of device which would render the machine safe for all of its normal operations. Bexiga stands for the proposition that the manufacturer has a duty to supply a safety device “where it is feasible for him to do so” (290 A.2d at 285); as it generally is in the case of a unifunctional machine.

Another similar case is Moren v. Samuel M. Langston Co., 96 Ill.App. 2d 133, 237 N.E.2d 759, where plaintiff was injured in operation of a “printer-slotter machine.” A judgment for defendant was reversed and the cause remanded because the trial court had excluded expert testimony as to various types of safety devices that were readily available for installation upon the machine by the manufacturer. So far as we can ascertain, this machine was a unifunctional machine which was used only to slot and print cardboard for boxes. It was defective and therefore unreasonably dangerous for operation because the manufacturer had supplied an insufficient safety device. There, the manufacturer knew in advance the single purpose for which the machine would necessarily be used. In the case at bar, the machine was adapted for use with different dies and for varying processes, all requiring different safety devices.

Both sides cite, and have commented extensively upon, State Stove Mfg. Co. v. Hodes, Miss., 189 So.2d 113. There, the manufacturer sold a water heater to a contractor. The heater was delivered without a safety value but with instructions directing the contractor to supply and install such mechanism. The contractor installed without the safety valve and the heater exploded. In suit by the homeowner against the contractor and the manufacturer, the majority of the court found that the contractor was strictly liable but that the manufacturer was absolved. A dissenting opinion agreed with the result concerning the contractor but took the position that the manufacturer was also liable. Certain aspects of the decision regarding negligence have no application here. Also, we need not be concerned with the holding by the dissent that the duty of the manufacturer to append the safety device was nondelegable and could not be shifted to the contractor. We believe that this court would probably reach the same result as the dissent, but only on the theory that this stove was a unifunctional instrumentality which was defective and therefore unreasonably dangerous, without application of the safety valve, so that there was a duty upon the manufacturer to install this type of safety device.

Plaintiff cites Cunningham v. MacNeal Memorial Hosp., 47 Ill.2d 443, 266 N.E.2d 897, not because of factual similarity, but to establish a theoretical basis for plaintiff's claim. In Cunningham, the Illinois Supreme Court applied principles of strict liability to a hospital which supplied defective human blood to its patient. The court imposed liability even though the state of medical science was such that it was impossible for the hospital to detect the presence of hepatitis virus in the blood. The court held that to allow such a defense to strict liability “* * * would be to emasculate the doctrine and in a very real sense would signal a return to the negligence theory.” (47 Ill.2d at 453.) Thus, even though the product sold and administered to the patient was defective and even though the hospital was unable by any means to discover the existence of the defect, strict liability was imposed.

On the contrary, in the case at bar, the product was not defective when it left the control of the manufacturer in accordance with the Dun-ham definition. It was only dangerous when used to perform some of its many functions without a suitable type of safety device. This situation could be remedied by use of a proper safety device, but the number and varied types of these devices was such that the duty of supplying the proper type should reasonably rest not upon the manufacturer but upon the purchaser of the machine. In cases involving food products or blood for transfusion, as in Cunningham, these substances are unreasonably dangerous and therefore defective because they are ingested directly within the body of the user. Therefore it is crucially imperative that the duty be enforced against the purveyor. No third person has any opportunity to secure safety of the product, as in the case of a machine. In the case at bar, machine necessarily had to be modified by the purchaser by fitting it with die sets and dies before it was ready for use.

The burden rested upon plaintiff of proving the existence of a duty as a prerequisite to strict liability. (Fanning v. LeMay, 38 Ill.2d 209, 230 N.E.2d 182.) Thus, plaintiffs statement that the record does not show that defendant “could not equip the press at the factory with a safety device that could be used for varying operations” is legally ineffective. The. basis for imposition of this duty in cases involving strict liability appears from the decisions in Suvada and Dunham above quoted. As above analyzed, all of the evidence in this case showed that the machine was multifunctional and that the type of device required to make it safe in performing these functions necessarily varied in accordance with the type of dies used and the operation which the machine was performing. The only evidence adduced by plaintiff was that the machine was dangerous in performing all of these varied secondary or manual operations. This fact is virtually self-evident; but it is not, in our opinion, a sufficient basis for the imposition of strict liability. We, therefore, conclude that the motion of defendant for judgment n.o.v. should I have been granted.

In view of the result thus above reached, we need not consider defendant’s contention that the sole proximate cause of plaintiffs injury was an allegedly defective safety device. Also, since we have determined that defendant had no duty to append a safety device to the machine, we need not consider the point raised by plaintiff that the duty of a manufacturer in this regard may not be delegated.

The judgment in favor of plaintiff is reversed and the cause remanded to the trial court with directions that the motion of defendant for judgment n.o.v. be allowed.

Reversed and remanded with directions.

BURKE, P. J., and EGAN, J., concur.


author: Mr. JUSTICE HALLETT

text:
    Accurate Home Supply, Inc. et al., Plaintiffs-Appellees, v. Gerardo Malpede et al., Defendants-Appellants.
    (No. 57445;
    First District (1st Division)
    June 4, 1973.

      Adamowski, Newey & Riley, of Chicago, (Francis X. Riley, of counsel,) for appellants.
    Robert R. Napoleon, of Chicago, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court;

This is an appeal by the defendants from a decree foreclosing a mechanic’s lien on property of the defendant Jennie Malpede and entering a personal judgment against the defendants Nicholas and Annette Ferri, who were tenants, thereon.

On January 14, 1970, the corporate plaintiff and its president (hereinafter called plaintiff) filed suit against Gerardo Malpede, his wife Jennie Malpede, their daughter Annette Ferri and her husband Nicholas Ferri to foreclose a mechanic’s lien on certain improved real estate owned by the Malpedes and occupied by them and the Ferris. The sheriff’s return shows personal service on Annette and abode service on the others by serving her as a member of their families on January 24, 1970, and by mailing.

On July 29, 1970, notice was given by mail to all four by the plaintiff’s attorney that on August 6, 1970, he would move to default them for failure to appear or answer. On that date an attorney, Joseph A. Malek, appeared and he was given leave to file an appearance and answer for the four defendants within 21 days. On September 29, 1970, the case was dismissed for want of prosecution on a call of the calendar.

On October 20, 1970, the plaintiff’s attorney sent written notice by mail to the said attorney (who never did file an appearance or answer) that he would, on October 23, 1970, move to vacate the said dismissal and to default the defendants for failure to plead or answer. The court on that day vacated the dismissal, defaulted the defendants, ordered that the complaint to foreclose be taken as confessed and ordered that the matter be proved up on the regular motion call.

Thirteen months later, on November 30, 1971, both attorneys met in court to prove up the plaintiff’s, claim. Attorney Malek initially stated that he had had little cooperation from his client Nicholas Ferri and that he had not talked to the Malpedes or advised them that their property was in jeopardy and asked for a continuance so that he could notify them by registered mail that he was asking leave to withdraw as their attorney. The court denied a continuance and suggested that he move to withdraw later. The plaintiffs attorney then proceeded with the prove up, at the conclusion of which attorney Malek told the court that someone had, with his permission, used his name on an appearance, and that, although he had written them once in about September of 1970, he had never seen or had any contact with any of his clients since that time.

On December 2, 1971, attorney Malek served notice by mail on all four clients that on February 14, 1972, he would ask leave to withdraw as their attorney but on December 14, 1971, on the basis of said notice for February he was given leave to withdraw as their attorney.

On December 29, 1971, attorneys Adamowski, Newey and Riley moved for leave to file their appearance as attorneys for the defendants and to vacate the judgment “heretofore entered” (actually none had as yet been entered). An order was entered substituting them as attorneys, entering the motion to vacate, giving the defendants until January 28, 1972, to file supporting data, giving the plaintiffs until February 19, 1972, to file memorandum in opposition and conditioning the order upon the defendants’ paying $250 in attorney’s fees by February 1, 1972. It recited that the order was without prejudice to the plaintiffs right to present the decree.

On January 7, 1972, without any proof of service of notice of such a motion, the plaintiff’s attorney presented a decree, which motion was entered and continued to January 13, 1972, without further notice. On that date a decree of foreclosure was entered against all four defendants including personal judgments against Nicholas and Annette Ferri for $3,158.14 plus costs. An oral motion to vacate was entered and continued to February 22, 1972, but the order of December 30, 1971, except par. 4 (relating to presenting a decree) was reentered and affirmed.

On February 10, 1972, after paying the $250 attorney’s fees required by the order of December 30, 1971, Nicholas Ferri filed his affidavit stating in substance, that he employed attorney Malek to defend the action and delivered all papers to him; that Malek never asked for any additional information or action and that he assumed that his rights were being defended; arid that Malek did not advise him of any defaults or notices until after the prove up. This affidavit also recited that Gerardo Malpede, his father-in-law (and a defendant against whom the decree ran), had been dead for more than ten years; that the plaintiff’s original offer to do the job for $4,490 complete was rejected by the affiant who offered to supply the material; that the plaintiff then agreed to do the job for the difference between the materials and that figure; and that there never was any discussion of time arid materials. It further recited that the affiant himself purchased all materials used on the job; that money ($1,149.95) was paid to the plaintiff in advance; that the plaintiff never gave affiant any invoices; that throughout the project there was only one man on the job, the plaintiff’s brother-in-law, Tony; that on one occasion a second man, an apprentice, was there, and, on another occasion, three men were there to hang one door; that the plaintiff never removed any walls or did any siding work and did not even clean up after the job; that when the plaintiff no longer had anyone on the job the affiant refused to pay any more; that the materials furnished and the money paid more than compensated the plaintiff for the labor of installation; and that no money was due and owing to the plaintiff for work on the premises.

On February 17, 1972, another affidavit by Annette Ferri was filed. It corroborated her husband’s affidavit and added that her husband also paid for all plumbing supplies and the plumber’s labor costs.

On February 22,1972, the plaintiffs filed a four page unsworn “answer” to the defendants’ motion to vacate, attacking the defendants’ affidavits on the grounds that they were irrelevant, untrue, contradictory, incompetent and conclusory.

On that same day, the court entered a final order, vacating, so much of the decree of January 13, 1972, as ordered relief against the deceased Gerardo Malpede, but denying the defendants’ motion in all other respects. This appeal followed.

Section 50 (5) of the Civil Practice Act (111. Rev. Stat. 1963, ch. 110, par. 50 (5)), provides that a court may set aside a judgment on a motion made within thirty days “upon any terms and conditions that may be reasonable.”

The leading case on such motions is Widicus v. Southwestern Elec. Cooperative (1960), 26 Ill.App.2d 102, 167 N.E.2d 799, where, in reversing the trial court’s refusal to vacate a default judgment in a personal injury case, the court at pages 108-109, said:

“In view of the fact that the statute, as it now stands, does not contain the requirement that good and sufficient cause appear, we do not believe that a court now must categorically determine that a meritorious defense or a reasonable excuse be proven to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice.
« « «
The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiffs basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard fast rule applicable to all situations regardless of the outcome.
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

This case has been cited and followed in the following decisions by various appellate courts throughout the State: Lynch v. Illinois Hospital Services, Inc., 38 Ill.App.2d 470, 473-474, 187 N.E.2d 330; Wolder v. Wolder, 30 Ill.App.2d 98, 101, 173 N.E.2d 546; Trojan v. Marquette Nat. Bank, 88 Ill.App.2d 428, 437-438, 232 N.E.2d 160; Mieszkowski v. Norville, 61 Ill.App.2d 289, 293-294, 209 N.E.2d 358; Sentry Royalty Co. v. Craft, 79 Ill.App.2d 410, 418-419, 226 N.E.2d 282; Adams v. Grace, 128 Ill.App.2d 69, 76-77, 262 N.E.489; Megan v. L. B. Foster Co., 1 Ill.App.3d 1036, 2039, 275 N.E.2d 426.

In People ex rel. Reid v. Adkins (1971), 48 Ill.2d 402, 270 N.E.2d 841, our Supreme Court, referring to C.P.A. par. 50 (5), at page 406, said: Perhaps the most recent case on this subject is Knight v. Kenilworth Insurance Co. (1971), 2 Ill.App.3d 493, 275 N.E.2d 470, where, in reversing a judgment and remanding the cause with directions to vacate the judgment and to allow the defendant to answer or plead to the complaint, the court at page 495, said:

“* * # Under this section, it is no longer necessary that such relief be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such defense. The overriding consideration now is whether or not substantial justice is being done between the Htigants and whether it is reasonable, under the circumstances, to compel the Other party to go to trial on the merits. Trojan v. Marquette National Bank, 88 Ill.App.2d 428, 437, 438; Mieszkowski v. Norville, 61 Ill. App.2d 289, 294, 295; Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102, 108-111.”
“Early in the common law of Illinois, it was established that the setting aside of a default judgment within term time (30 days) is generally a discretionary matter for the trial court; however, the exercise of that discretion is subject to review, Scales et al. v. Labar et al., (1869), 51 Ill. 232. During this same period, it was further established that trial courts should be liberal in setting aside default orders within term time when it appears that justice will be promoted. (Mason v. McNamara et al. (1870), 57 Ill. 274, 277.) Prior to 1933, it was necessary that a meritorious defense and good excuse be shown. Today these are not necessary but are factors, as is hardship suffered by the plaintiff, which the court may take into account in resolving the more basic determination of dispensing justice between the parties. Widicus v. Southwestern Elec. Cooperative (1960), 26 Ill.App.2d 102, 108-109.
The reviewing court need' not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served, Trojan v. Marquette Nat. Bank (1967), 88 Ill.App.2d 428, 438. ‘What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.’ (Widicus, supra, 109.) From the facts in this case, we are of the opinion that justice will be accomplished by allowing the defendant his day in court.”

Applying these principles to the facts of this case as outlined above, we are of the considered opinion that substantial justice will best be accomplished by aHowing the defendants to have their day in court. It should be noted that, in the case at bar, the defendants’ attack, through new counsel, began even before the decree was entered, that their motion to vacate the decree was made on the same day on which the decree was entered and that they paid, as the court ordered as a condition to their even filing their motion, $250 attorney’s fees to the plaintiffs attorney.

We, therefore reverse the judgment and decree and remand the cause with directions to vacate the default and to allow the defndants to answer or plead to the complaint.

Judgment and decree vacated and cause remanded with directions.

GOLDBERG and EGAN, JJ., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    Leroy Hall, Plaintiff-Appellant, v. Baum Corporation, d/b/a Washington Hotel, Defendant-Appellee.
    (No. 55420;
    First District (3rd Division)
    June 7, 1973.

      A. J. Horwitz and Dario A. Garibaldi, both of Horwitz, Anesi and Ozmon, of Chicago, for appellant.
    No appearance for appellee.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, Leroy Hall, sued the defendant, the Baum Corporation, owner and operator of the Washington Hotel, for personal injuries received when he was an invitee of the hotel. A jury returned a verdict for the defendant and judgment was entered in accordance with the verdict. In this appeal Hall seeks a new trial because of alleged prejudicial errors, the principal ones being that the defendant impeached and improperly cross-examined its own witnesses and caused portions of a police report to be brought to the attention of the jury. Other errors relate to evidence, rulings of the trial court and instructions.

The defendant has not contested the appeal. If an appeal is perfected and the appellee does not file an answering brief, a court of review may reverse the judgment of the trial court without considering the merits of the appeal. (Ridge Manor Convalescent Home v. City of Chicago (1972), 4 Ill.App.3d 1077, 283 N.E.2d 272; Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42. However, it is this court’s practice to examine the record to determine whether an injustice would be done an appellee by a summary reversal. (Jordan/Tamraz/Caruso/Advertising, Inc., v. Parker Career Center (1973), 10 Ill.App.3d 247, 294 N.E.2d 59; Metcoff v. Metcoff (1972), 4 Ill.App.3d 160, 280 N.E.2d 572.) After studying the record and the appellant’s briefs we are of the opinion that he is entitled to reversal. Rather than reversing summarily, however, we will state the reasons for our decision.

Hall, an unemployed dockworker from Joliet, checked into the Washington Hotel in downtown Chicago about 1:00 A.M. on a humid April morning in 1964. He was assigned a room on the fifth floor. He testified that he had one or two cans of beer in the room and then, 45 minutes later, desired some fresh air. He was directed by an elevator operator to an open fire escape door on the eleventh floor. The fire escape consisted of stairs descending along the outside wall. On the eleventh floor there was a grated platform with a railing that had three approximately equidistant horizontal bars with vertical supports. The lowest bar on the railing opposite the doorway was defective in that it was bent downward about four inches at its lowest point. As Hall stood on the fire escape smoking a cigarette, with his right foot on the lowest bar to the right of the defect and his left foot on the platform, the door (which subsequent testimony indicated had been held open by a wire coat hanger) blew shut; the door struck him, he lost his balance and fell through the railing. He managed to seize the edge of the platform and screamed for help as he held on. He tried to pull himself back up, could not make it, lost his grip and plunged downward eleven floors.

Two police officers found Hall about 3:30 A.M., severely injured but still alive, on the trunk of an automobile directly below the fire escape. A supervising sergeant arrived and Hall was taken to Cook County Hospital. The sergeant summoned an evidence technician to the scene and called in two detectives to investigate the occurrence.

The detectives were Roger Niehoff and William Havansek. They saw Hall at the hospital and spoke to him. He was able to tell them that he went to the eleventh floor to get some air and was alone at the time he fell. The detectives then went to the Washington Hotel and proceeded with their investigation. They noticed that the bottom rung of the fire escape railing was bent and that it had a heel mark on it. Officer Stanley, the evidence technician, took photographs of the fire escape and fingerprints and scrapings of the raffing. Havansek prepared a report of the investigation. The second paragraph of the report said there were “heel marks on the second rail, which later proved to be the heel marks from the victim’s shoes.”

At issue in the case- were the reasons for Hall’s fall and the way he fell; whether the closing door had forced him through the railing, whether he had climbed on the railing and lost his balance or whether he had attempted suicide. It was important to the defendant to show that his fall was either deliberate or the result of his negligence. Proof that his heel prints were found on the second bar of the railing would have been of immeasurable value in establishing both defenses. In an effort to bring the second paragraph of the report to the jury’s attention, Nie-hoff and Havansek were called as defense witnesses. Niehoff, the first to testify, said that he saw that the first rung was bent but did not notice anything unusual about the second one. Although there was no showing that the witness’ memory was faulty or that he had exhausted it, the defendant’s attorney asked him to look at the police report to refresh his recollection as to whether other rungs were examined. Niehoff looked at the report, said it refreshed his recollection but again said that he did not notice anything unusual about the second rung. The same procedure was repeated and repeated. The defendant’s attorney showed the report to Niehoff five times and asked him if it refreshed his recollection — once he said “to awaken your conscience” — and five times Niehoff replied that he saw nothing on the second rung. In seeming desperation the attorney tried to bring out the content of the report. He asked Niehoff, “can you tell us what’s contained in the second paragraph of that recording?” and again, “Didn’t you cause to be recorded there, officer, the statement —?” An objection to the first question was sustained and an objection, also sustained, interrupted the second. On the third attempt the attorney was more successful. He was permitted, over objection, to ask, “* * * did you ever record or say anywhere that you saw heel marks on the second rail?” Niehoff replied, “Not to my knowledge.” The attorney then inquired: “Showing you [the report], I ask you the question again.” Niehoff responded, “This was not my recording, counsel.”

Havansek, who had drafted the report, was then called by thé defendant. He was asked what he had noticed about the railing and he said that one rung was bent and a heel mark was on it. He, too, was asked five or six times if he noticed anything unusual about the other rungs and he was given the report to refresh his recollection — again without proof that his memory was exhausted. He replied that all the rungs had been examined but he remembered nothing unusual about any rung except that a heel mark was on the one that was bent. Havan-sek was asked, “How about the second rung?” An objection was overruled and he answered, “According to the report, it says the second railing had a heel mark on it.” The defendant’s attorney inquired, “It said Tieel marks,’ didn’t it?” An objection to the attorney’s reading from the report was overruled, but an objection for the same reason to the follow-up question, “Did you therein record that there were heel marks —,” was sustained. The attorney then asked:

“Officer, didn’t you record that statement ‘And heel marks on the second rail, which later proved to be heel marks from the victim’s shoes’?”

The court instructed the jury to “wholly and totally” disregard the question. The court permitted, however, the attorney to ask:

“Did you record, Officer, that you found heel marks on the second railing?”

To which the witness replied, “Yes, sir.”

The court-enforced distinction between the questions resulted from revelations which came to light outside the presence of the jury. It was the evidence technician who had determined that the heel prints were made by Hall’s shoes. Havansek merely recorded what the technician told him. The report, although composed and typed by Havansek, did not state that he himself had observed heel marks on the second rung. The testimony of Niehoff and Havansek was consistent throughout their examination. They said that they themselves had seen nothing unusual about the rungs except the lowest one; as far as they were concerned the reference in the report to the second rung was a mistake; they did not know of their own knowledge whether the heel mark they had seen corresponded with the heels of Hall’s shoes for it was the technician who made the comparison. Both witnesses said the report refreshed their memories but were steadfast in saying that it did not alter their recollection of what their own investigation disclosed.

Undoubtedly, the defendant’s attorney was disappointed in their testimony. But his frustration was caused in part by his calling them as witnesses without knowing what their testimony would be. He did not take depositions from them nor from the technician and did not summon the technician as a witness. He had a copy of the police report and he relied on it. Moreover, the report itself was confusing. It was a compilation of four individual reports: one by the police officers who first found Hall on the parked auto; the technician’s report, which detailed the procedures he utilized; Niehoff’s and Havansek’s own closing report and a supplemental report prepared by them. The supplemental report, which was used in examining the witnesses, was basically a two-page narrative of all the areas of inquiry and a synopsis of the evidence uncovered by all the police officers involved in the case. With minor exceptions the report did not differentiate between the second-hand knowledge Niehoff and Havansek obtained and what they observed themselves.

When the defendant did not receive the evidence it expected from Niehoff and Havansek it attempted to impeach them by the supplemental report. Throughout their direct examination the defendant sought to divulge the contents of the report. By persistence and repetition it finally succeeded in revealing to the jury not only a part of the inadmissible report but a part containing hearsay information. The inadmissible disclosure bolstered the defendant’s case but seriously prejudiced the plaintiff’s. The prejudice was accentuated by the defendant’s opening statement that the evidence would show that heel marks from Hall’s shoes were on the second rung of the railing.

The general rule is that a party who calls a witness to testify cannot impeach his testimony. However, there are exceptions to the rule. If a witness unexpectedly gives testimony against the party calling him, that party may examine him to call his attention to former specific inconsistent statements. (People v. Wesley (1959), 18 Ill.2d 138, 163 N.E.2d 500.) If the trial court determines that a witness is hostile or unwilling he may be cross-examined by the party calling him. An occurrence witness may be impeached by proof of prior inconsistent statements if the party calling him shows that he called the witness in good faith and is surprised by his testimony. Ill. Rev. Stat. 1969, ch. 110A, par. 238.

The testimony in this case does not come within these exceptions. If the defendant was initially taken aback by Niehoffs testimony it was not by Havansek’s, who testified after Niehoff. Neither witness was hostile or unwilling to testify. Neither was reticent, deceptive or evasive. Their only testimonial reluctance was their unwillingness to say what the defendant wanted them to. Furthermore, there was no judicial determination that they were either hostile or unwilling witnesses and they were not occurrence witnesses. An occurrence witness has personal knowledge of an event from being present when it takes place, such as a witness who observes an accident in which a personal injury was sustained. (Ballentine’s Law Dictionary, 1969, 3d ed., p. 880.) Both Niehoff and Havansek arrived at the hotel after Hall had been taken to the hospital. They interrogated him there and then returned to the Washington Hotel. They were post-occurrence witnesses; they testified to their interview with Hall and to the condition of the premises after the event which formed the basis for the cause of action.

Even if the court had found that the two detectives were hostile and had granted the defendant the right to cross-examine them, the defendant could only have shown that Havansek’s report contained a statement at odds with his testimony. It had no right to prove anything beyond that. Police accident reports are inadmissible in evidence in whole or in part. (Ill. Rev. Stat. 1969, ch. 110A, par. 236.) They may be used for the limited purpose of impeachment as to inconsistent statements (Black v. DeWitt (1965), 55 Ill.App.2d 220, 204 N.E.2d 820) or to refresh a witness’ recollection (Tuskey v. Callos (1969), 112 Ill.App.2d 213, 250 N.E.2d 524) but they cannot be used, as the defendant did, to divulge substantive evidence to the jury. Wolf v. City of Chicago (1966), 78 Ill.App.2d 337, 223 N.E.2d 231.

The report was used not to refresh faulty memories but to impeach the defendant’s own witnesses, The repeated references to its contents and the readings from it not only served as attempted impeachment but as a substitute for competent evidence. The effect of the improper impeachment and references to the contents of the report was so prejudicial that it was not remedied by the diligent efforts and limiting instruction of the court.

The cause is reversed and remanded. In view of this result it is unnecessary to consider the other claims of error.

Reversed and remanded.

McNAMARA and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Birch, Defendant-Appellant.
    (No. 57884;
    First District (3rd Division)
    June 7, 1973.
   PER CURIAM.

SCHWARTZ, J., took no part.

James J. Doherty, Public Defender, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.