author: MR. JUSTICE BRYANT

text:
    Robert E. Dickeson, Plaintiff-Appellee, v. Baltimore & Ohio Chicago Terminal R. R. Co., a Corp., et al., Defendants-Appellants.
    Gen. No. 49,363.
    First District, Second Division.
    March 30, 1965.
    Rehearing denied September 27,1966.

      John H. Gobel and N. E. Liontakis, of Chicago, for appellants.

      Philip H. Corboy and James P. Chapman, of Chicago (James P. Chapman, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court:

This appeal comes from a judgment entered on a jury verdict finding the appellant railroads guilty of negligence and assessing the appellee’s damages at $116,480. The appellants deny negligence on their part and claim also that the appellee was guilty of contributory negligence as a matter of law. To these claims are added several errors alleged to have taken place at the trial.

The appellee here was the plaintiff in a personal injury action below. The appellants are the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company, the owners of the right-of-way on which the appellee was injured; the Pennsylvania Railroad Company, the lessee of that right-of-way; and the Baltimore and Ohio Chicago Terminal Railroad Company, the user of this right-of-way by agreement with the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company.

Most facts concerning this accident are not in dispute. The appellee, Robert Dickeson, was 14 years and four days old at the time of the occurrence. He was born and raised in Drakesboro, Kentucky and lived in close proximity to a railroad track which ran through the town. Before the accident, appellee’s health was excellent except for a condition of the eyes known as internal strabismus — that is to say in layman’s language he was cross-eyed. As a result he tended to see everything out of his right eye. When he looked straight ahead he saw objects to his left with hazy vision.

While in Kentucky, Robert attended the Drakesboro Consolidated School which combined both grade school and high school. He had failed one year of school in Kentucky and when he began school in Chicago he was placed in the sixth grade. His younger brother, David, though two and one-half years junior to the appellee, was put in the fifth grade.

In November or December of 1952, appellee’s family moved to Chicago and resided at 338 South Artesian Avenue. Appellee attended the King Elementary School which was located near his home. His school record shows he attended that school for two and three-tenths weeks before his accident. He never returned to school after he incurred the injuries of which he complains here.

The father of the appellee testified that he had warned Robert once when he was six or seven years old not to play on the railroad tracks which ran behind their home in Drakesboro. This was confirmed by the appellee. There is no other evidence of warnings being given Robert concerning the danger of playing on or near railroad trains. The testimony is uncontroverted that the appellee had never ridden a railroad train in his life nor that he ever had attempted to hitch or “flip” a ride on a train before the date of the accident.

The accident occurred when the appellee and his brother were returning home from visiting their sister late in the afternoon of January 22, 1963. They had been playing tag, but when they passed the railroad embankment they decided it would be fun to go up there. Both testified that neither had been up there before; both testified that they had seen other children playing on the embankment before the accident. They climbed the embankment using a path that had been worn there, apparently from the constant use of children going up to the tracks to play. The path ran from the top of the embankment to Rockwell Street to the east and took the plaintiff and his brother to a point about 150 feet north of an overpass which carried the tracks over Jackson Boulevard.

The testimony is that the boys were standing on this embankment when a slowly moving Baltimore and Ohio train approached from the north on the second track from the east. Thus, the boys were on the eastern most track while the train was on the track next to them. The train was headed toward the overpass crossing Jackson Boulevard. There was testimony that the appellee and his brother waved to the engineer and that he waved back. There was no testimony that anybody tried to chase these boys off the embankment. As the train was passing by, Robert grabbed a ladder rung which was affixed to the .side of a car and began to climb up the rungs to the top. He testified that as he was doing so he looked upward, obviously looking to see where the next rung on the ladder was. It should be noted that as he was climbing the ladder his left side was toward the south — the direction in which the train was moving. As noted before, Robert had bad vision to the left due to a condition of the eyes. As the train passed over Jackson Boulevard, appellee was knocked off the side of the car by a bridge girder.

A switchman on the train heard the appellee cry out as he was hit, and pulled the emergency cord to stop the train. Robert was found wedged between the train and the girder of the overpass. The police were summoned and appellee was removed to Cook County Hospital. It is not necessary to discuss the injuries incurred by the appellee here; no point is being made here as to the extent of these injuries, nor is there any claim that the damages as assessed by the jury are excessive.

The situs of the accident was a railroad embankment, or elevated right-of-way, located in a densely populated area. The neighborhood was a blighted one with no easily accessible playgrounds for the young people. The only playground in the immediate area was part of a housing project and was restricted to the use of the children of the tenants.

On this right-of-way were located five tracks, which had been elevated in 1897. As originally built, there was a retaining wall on the Rockwell Street side of the embankment (the side from which the appellee climbed to the tracks), but in later years the wall was allowed to fall into disrepair, and gradually an incline developed allowing easy access to the right-of-way.

Ño claim is made here that the fact that there was not a wall or fence barring access to the tracks is violative of any statute. It is, however, maintained by the appellee that under the circumstances, it was negligent for the appellant railroads not to fence off their right-of-way or find some other method to keep the children from harm.

There was evidence adduced at the trial that it was customary for neighborhood children to play on the tracks and that often they would flip rides on the slow moving freight trains as they went by, ride them a short while and jump off a few blocks from the point of beginning. When a freight was moving the other way, the same procedure would be repeated, returning the children back to where they started. There was evidence that this practice had been going on for a great number of years. There was also evidence that the presence of the children was known to the railroads involved in this case. Testimony was given to the effect that children used to throw rocks at the trains as they went by, and railroad employees acknowledged that they had seen children on the tracks and that it was known that they would try to hitch rides on the trains. A policeman testified he saw children on the embankment about once a week and that he saw children at the station house about six times a week when they had been brought in by others for playing on the tracks. He testified that the children ranged in age from six to sixteen years. He also testified that he had conversations with the B & 0 about the problem of children playing on the tracks. In addition, several residents of the neighborhood took the stand to testify that the children of the area habitually played on that embankment and that they had seen children flip the trains.

Records of the Pennsylvania Railroad Company were subpoenaed and .showed that four other children within three years preceding this accident had been injured by moving trains while on the embankment, in the immediate vicinity of the spot where this accident occurred.

The sum of the arguments concerning liability in this case is the claim of the appellee that the railroads were put on notice that children were in the custom of playing on the tracks and that it was negligent of the railroads in question not to construct some sort of barrier to keep them off the right-of-way, or have a more vigilant lookout maintained by railroad personnel for these children. The railroads maintain that they were under no duty to fence. They insist that whatever might be the argument for fencing this area, it could be made for any section of track in the city, pointing out that fencing in all the railroad track in the city would impose an undue burden on the railroads. The appellant railroads also claim that the appellee was guilty of contributory negligence as a matter of law.

Any determination of negligence on the part of the appellant railroads must take into account the doctrine of Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955). That case has been cited and discussed so much that its facts hardly bear repetition here. The holding of that case is summed up in the following paragraph taken from page 625 of the official reporter, pages 841, 842 of the Northeastern Reporter:

“It is generally true, as defendant contends, that an owner or one in possession and control of premises is under no duty to keep them in any particular state or condition to promote the safety of trespassers or others who come upon them without any invitation, either express or implied, (citations omitted) It is also established that infants, as a general rule, have no greater rights to go upon the land of others than adults, and that their minority of itself imposes no duty upon the occupier of land to expect them or prepare for their safety, (citations omitted) It is recognized, however, that an exception exists where the owner or person in possession knows, or should know that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. (citation omitted) The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.”

The court went on to say that the question of whether a condition or agency was sufficiently attractive to entice children, whether the condition would involve danger to the children, and whether the condition was such as to give notice to the owner or occupier of the premises that children were likely to trespass was a question of fact for the jury to determine.

In the case before us there was evidence that the railroads did in fact know that children were in the habit of trespassing on the embankment. A moving railroad train is certainly an instrumentality of great potential danger to children, and the jury was certainly within its province to decide that such trains are sufficiently attractive to entice children to climb on them.

The appellants, however, insist that the Kahn doctrine is not applicable to this case. They urge that the Kahn doctrine leaves the old attractive nuisance doctrine intact, changing only the requirement that the child must have been lured onto the premises by the instrumentality which caused injury. From this they argue that the appellee was still guilty of contributory negligence, and urge that the requirement of the Kahn case that the cost of remedying the situation be slight as compared to the dangers involved prevents the application of this doctrine to them.

The question of contributory negligence is one for the jury to decide. While a child under the age of 14 years is presumed free of contributory negligence, the jury may find that a child of 14 years or older is free from contributory negligence in any given instance. “It is firmly established that in determining the question of due care the factors of experience, intelligence and capacity must be considered in the case of a minor over 14 years of age.” Skaggs v. Junis, 27 Ill. App2d 251, 169 NE2d 684 (1960).

The appellant railroads insist that as a matter of law children of the age of the appellee must recognize the danger involved in playing on moving trains. This is not true. They have cited several cases which, they say, supports their proposition. While no attempt will be made to discuss all of them, the most recent merit some consideration. Petermichl v. Chicago & N. W. Ry. Co., 205 F2d 434 (7th Cir, 1953) involved a grown man who attempted to jump on a moving commuter train while holding a leather bag and a large envelope in his right hand — the plaintiff being right handed. This plaintiff had been using this station for 13 years, and the court held that as a matter of law he must be held to have recognized the dangers involved in his act. This is far different from a 14-year-old boy who had never been on a train in his life.

Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, 149 NE 23 (1925) dealt with a child 7 years and 10 months old. In that case the railroad company was found guilty of negligence in allowing its right-of-way to be used by children for a play area. The case contains the dictum that when a child reaches the age of 14 he is held to the same degree of care as an adult, but consideration must be made for age and experience. This hardly supports the appellants’ contention that 14 year olds are held to be contributorily negligent as a matter of law when flipping a train.

Matijevich v. Dolese and Shepard Co., 261 Ill App 498 (1931) dealt with a child who was injured when on a dare he allowed a dynamite cap to explode in his hand. The holding of the case was that since the boy was not lured onto the land by the dynamite caps, but had gone there to go hunting, he did not fall under the attractive nuisance doctrine. The court also said in dictum that since the evidence showed the boy had exploded several of the caps before he was injured and that he fully appreciated the concussive power released by the explosions, he was not exercising due care in allowing one to explode in his hand. To state the facts is to distinguish that case from the one at bar.

Gemmill v. Grand Trunk Western Ry. Co., 211 Ill. App 246 (1918) was a case which held that a 12-year-old boy who was killed while trying to jump on a moving train was guilty of contributory negligence as a matter of law. This case is certainly appellants’ strongest, but we feel it is no longer valid law in this state. Even the appellants concede that if the appellee here were under 14 years of age his contributory negligence would be a question for the jury.

The jury was instructed that a minor is not held to the same standard of conduct as an adult, and that the jury was to evaluate the question of appellee’s due care for his own safety in view of what would be expected of a reasonably careful minor of similar age, mental capacity and experience. (Emphasis supplied.) The appellant railroads made no claim that this instruction misrepresents the law of this State. We find no error in this matter.

Addressing himself to the question of mental capacity, the appellee brought in testimony from a psychologist, Mr. George Speer, to the effect that Bobert was of less than average intelligence. He testified that appellee had an I. Q. of 81 which classified him as “dull-normal.” An average score would be from 90 to 110. This psychologist stated that he gave Bobert three tests, described as objective, each of which was recognized in the profession. According to this witness the three tests were given so that there might be a cross-check to insure the accuracy of the results. As a result of these three examinations, this witness testified that he could say with a reasonable degree of certainty that the appellee was doing the best he could.

The appellants take strong exception to the admission of these tests on the grounds that the appellee might have purposely given the wrong answers. They point out that the lower the appellee scored on these tests, the better was his chance of being found free from contributory negligence. While all they say is true, we cannot agree with them that this evidence should have been excluded. Obviously a test like this cannot produce a result which can be said to be absolutely certain. As appellants point out, there may be cultural biases in these examinations, the examinee may be trying to do poorly, the examiner might not be giving the test well; but this can be said of any psychological or psychiatric examination.

In the case of Hidden v. Mutual Life Ins. Co. of New York, 217 F2d 818, it was held reversible error for a trial judge to refuse to admit testimony of a psychologist. In that case the testimony was to go to the issue of whether or not the plaintiff had a nervous condition which he claimed kept him from working. He had the same motives for doing poorly on the examinations as the appellee did here. Yet it is clear in these cases that while these tests are not scientifically accurate in the sense of physics or mathematics, they must be admitted if the court is to take cognizance of psychological factors. Until someone devises a better way of testing I. Q. or whether a man knows right from wrong or any of the other things for which these tests can be used, we shall have to make do with these. The courts decided long ago that this evidence is accurate enough to be admissible. Any question concerning the exactness of these tests is a problem for the jury in determining what weight they should be given. Appellants’ cross-examination fully brought out the problems involved in giving and evaluating these examinations. The jury was fairly informed concerning these tests and we can find no error whatsoever in permitting these examinations to come in.

The next question presented goes to the existence of negligence on the part of the railroads. It is clear that railroads do not have to go out of business because children might be injured while trespassing on their land. We considered this problem recently in American National Bank v. Pennsylvania R. Co., 52 Ill App2d 406, 202 NE2d 79 (1964). In that case a child was injured on the exact same stretch of track that was involved in this case. That case was, however, decided in part on the basis of fencing ordinances; in the case at bar appellee pled these ordinances as part of his complaint, but the court below struck them as being no longer in effect. No cross-error has been assigned as to the correctness of that ruling. As far as this appeal is concerned, the issue is out of the case.

Can it be said that the railroads breach a common law duty by not taking steps to keep the children of the neighborhood off the right-of-way? Assuming, as we must in this appeal, that there were no statutory or regulatory requirements that the railroads fence, we feel that under the circumstances the appellants had a common law duty to take steps to close their right-of-way to the children. The fact that there was no statute or regulation requiring them to fence generally does not mean that under certain circumstances the duties imposed on owners and users of land by the Kahn opinion will have no effect. In the Kahn case itself, there was no violation of a statute or regulation of any kind, yet the Supreme Court held a duty existed because the instrumentality or condition on the land was potentially dangerous and the owner or user of the land had notice that children might well come to injury because of it. So in this case, the trains are dangerous to children playing on or by them, and the appellants had knowledge that the children were customarily there. We hold, therefore, that there was a common law duty on the railroads to take steps to keep these youngsters off the right-of-way.

The appellants insist that this will place an impossible burden on them. We quote from their brief:

“The allegations and evidence concerning this aspect of the case boil down to the question of fencing’. There was evidence that railroad police and city police patrolled the area regularly and apprehended persons engaged in illegal or dangerous acts. There was no evidence as to the possibility of removing the elevation fill. The only evidence with reference to the ‘utility’ requirement was that the cost of fencing railroad right-of-way at the time of the accident was $4.16 per linear foot, or a cost of $21,964.80 per mile for one side of the right-of-way. This amounts to a cost of $43,929.60 per mile to fence both sides of the right-of-way for only one mile. The length of the City of Chicago is about 25 miles, so to fence one railroad for the length of its right-of-way through the City of Chicago would come to a cost of over $1,000,000.00.”

They say that to fence all the railroad right-of-way in the State of Illinois would cost $486,000,000. They conclude, “Certainly it should not be said that the railroads must assume this crushing burden, in addition to the other financial burdens under which they admittedly are laboring today.”

Certainly not, but no one is suggesting that the railroads fence in their entire right-of-way. In this case we are dealing with a situation where children 'habitually were on the tracks. This was a congested area with few recreational facilities. There was testimony that children were there every day. It is certainly clear that they were there many times each week. We also have a situation where the trains were moving slowly enough that children could flip the cars as they went by. This creates a situation where the slow moving trains might well appear safe to a child, where that same child would be aware of the dangers of a fast moving train. There is no evidence before us that this is the standard situation in this city or in this state. It may well be that the same problem exists in some other parts of the city or the state. But trains do not ordinarily move that slowly, and tracks do not ordinarily run through such congested areas, and rights-of-way do not ordinarily have .such a history of accidents as did this stretch of track. The appellants in this case were negligent in not taking some precautions, be it fencing or otherwise, to free their right-of-way of these children.

The appellants next claim that one of the requirements of the Kahn case is that the condition or instrumentality on the land be such that children because of their immaturity would not comprehend the nature of the risk involved. They continue by asserting that children, by law, recognize the danger presented by a moving train. This point is made in the section of their brief dealing with contributory negligence. We cannot see what new issue it raises. If what is meant is that a child of the appellee’s age must recognize the danger incumbent on flipping a train, then it is a question of contributory negligence and for the jury to decide. If they are trying to say that the railroads never had notice that the children would be attracted to the trains, the evidence is quite to the contrary, and the jury so found.

We hold, therefore, that the finding of the jury that the appellants were negligent and that the appellee was free from contributory negligence was not against the manifest weight of the -evidence, or contrary to the law.

A claim is made that the Baltimore and Ohio was not subject to the Kahn rule because it did not own the right-of-way, but only used the tracks which were owned by the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company and leased to the Pennsylvania Railroad Company. The jury was instructed without objection from the appellee that the Baltimore and Ohio did not have a duty to build any fences. This does not, however, mean that the Baltimore and Ohio was necessarily free from negligence. The jury found this appellant guilty on the basis that it negligently operated its train. The instructions are very clear that this was the only way they could find against that railroad. We cannot say that such a finding would be manifestly against the weight of the evidence. The testimony was that the switchman was in the caboose, that from the cupola of the caboose one could look out and see whether children were on the tracks. It is also clear from the evidence that the cupola was boarded up in the winter to keep the cold air out, necessarily blocking the view of anyone inside. The switchman, therefore, was not keeping a lookout for children, yet he said at the trial that he knew they were in the habit of playing on the tracks. The engineer of the train waved to the appellee and his brother as he went by; no gesture was made by him to indicate that they should not be there. Whether or not someone should have been keeping a sharper lookout, or whether the engineer’s waving to the children could have been interpreted by them as meaning that their presence on the right-of-way was not improper was a question for the jury to decide. We see nothing that could justify our substituting our judgment for theirs.

The appellants next claim that they were unreasonably restricted in their cross-examination aimed at ascertaining whether the appellee knew the dangers of moving railroad trains. They sought to determine whether the railroad tracks which ran through Drakesboro, Kentucky were fenced or unfenced. The question was not allowed and the attorneys for the appellants were instructed by the court below not to inquire into the matter. It has long been the law that the scope of cross-examination lies largely within the sound discretion of the trial judge, and unless that discretion is clearly abused, with resulting prejudice to a party, we should not on appeal interfere with such a ruling. Hinnerichs v. Galbraith, 40 Ill App 2d 433, 189 NE2d 760 (1963). We cannot say that the trial judge abused his discretion in refusing to permit the appellants to inquire as to the condition of the tracks in Drakesboro. Assuming the tracks were unfenced, the appellants would still have to show that the trains were moving slowly enough to attract children to play on them. No such offer of proof was made. As we noted above, there might be a great deal of difference in the attractiveness of a train moving five miles per hour and one moving sixty-five miles per hour. Unless there were groundwork laid to establish a similarity between the conditions under which the trains ran in Drakesboro and the manner in which they were operated at the situs of the accident we cannot say the trial judge abused his discretion in not allowing this evidence to come in.

Objections also were sustained to questions asked of the appellee’s father concerning appellee’s apparent degree of understanding of warnings given him not to play on or about the tracks near his house. Such testimony would clearly be improper. The father is not competent to testify as to what the child thought, only as to what he did. The appellee’s father was asked whether his wife ever warned Robert about the trains, but this clearly calls for hearsay testimony, and an objection to the question was properly sustained. Objections were also sustained as to the appellee’s knowledge of the dangers of mine shafts. This was not an abuse of discretion. Hinnerichs v. Galbraith, supra. The appellant’s knowledge of mine shafts was not in question, and the court below was in his rights in finding the question too far afield from the issue at bar. A question to a police officer concerning the existence of safety programs in the appellee’s school was clearly improper. Unless the witness had been at one of these safety sessions, his answer would be hearsay. In addition, there is no evidence that the appellee was present at any of these sessions, if any there were. He had been in school only two and three-tenths weeks; if these sessions had been held but once a month, he might easily never have been present at one. Finally, there would also have to be proof as to what was discussed at the sessions. There would have to have been some evidence that the appellee was present at a session at which the danger of playing on railroad trains or tracks had been discussed.

As their next point of contention the appellants claim that two witnesses should not have been allowed to testify since they were not properly included on interrogatory answers. One witness was George Speer, the psychologist, who testified as to the appellee’s mental capacity. The second was Laura Williams, a resident of the neighborhood who testified that the children of that area were in the habit of playing on the railroad tracks. Mr. Speer was not listed in the interrogatory calling for persons having knowledge of facts concerning the accident; Mrs. Williams was listed, but a wrong address was given.

As to Mr. Speer: The appellee engaged him shortly before trial to give the examinations discussed earlier and to report on the results. This was well after the time at which replies to the interrogatories were filed.

Appellants rely largely on the case of Nystrom v. Bub, 36 Ill App2d 333, 184 NE2d 273 (1962). In that case the court refused to permit an expert in blood chemistry to testify to a hypothetical question concerning the effects on a person of drinking a given amount of beer. The court held that the question of whether or not a person was drunk was one on which people generally were competent to testify, and was not the type of issue for which expert testimony was needed. The court in that case also mentions that the witness was not listed on the interrogatories, but we do not read this as the basis for its holding.

The Nystrom case does hold that the matter is one for the trial court’s discretion, and we hold that the Court below did not abuse his discretion in permitting the psychologist, Mr. Speer to testify. We find no duty incumbent upon the appellee to keep the appellants informed of new witnesses after the interrogatories have been filed. We also note that during his opening argument, counsel for the appellee told the jury that they would show that Robert was of less than average intelligence. The railroads were certainly put on notice then that the issue of the appellee’s intelligence would be brought into the case, and apparently they made no effort to try to meet this line of argument except to object when Mr. Speer was offered as a witness. The Court below did not abuse his discretion on this point.

As to Mrs. Williams: The appellants object that the wrong address was furnished them on the interrogatories. As the court said in Pink v. Dempsey, 350 Ill App 405, 411, 113 NE2d 334 (1953):

“Pretrial discovery is designed to permit exploration and to avoid surprise. It is like a proceeding for the filing of interrogatories, or, perhaps, a comprehensive hill of particulars. It is directed toward making the judicial process one of determining the facts appertaining to the issue and rendering a just decision thereon, rather than the promotion of a battle of wits between counsel.”

We note in this case that Mrs. Williams testified only to the play habits of the children in the neighborhood. It was clear from the complaint that part of the appellee’s case was that the children of the neighborhood habitually played on the railroad tracks. It could certainly have been no surprise to the appellants when such testimony was offered. We find that the railroads could not have been prejudiced by the introduction of this testimony. In addition, we note that the appellants, after discovering that the witness did not live at the address stated in the interrogatories, did nothing until her testimony was offered at the trial. We feel the appellants were not complying with the spirit of Sec 58(3) of the Civil Practice Act in not calling the attention of the appellee’s attorney to this error. It would be cruelly unjust to permit a party to sit idly by, knowing an error had been made, and then ask to have a witness excluded when the time came for trial. A simple telephone call would have produced the correct address; we do not think that is too much to ask in the interests of justice.

The appellants next object to the introduction of certain evidence at the trial. The first of these objections go to the fact that there was some evidence admitted that showed parcels of land adjacent to the railroads’ right-of-way which were fenced. It is admitted that evidence of custom and usage is admissible where the conditions are similar but they point out that the problems of fencing in a rectangular lot are quite different from fencing in an entire railroad right-of-way. As we noted earlier in this opinion, the entire right-of-way is not in question here; it is this immediate area with which we are concerned. We cannot say, therefore, that the trial judge was in error in admitting evidence which tended to .show that other owners and occupiers of land in that vicinity considered it necessary to fence property to keep the children from climbing onto the tracks.

The next objection goes to the admission of cards in the possession of the Pennsylvania Railroad concerning a history of the accidents which had occurred at that location. It is claimed that two of these accidents did not even occur on the Pennsylvania right-of-way, and that, therefore, there was no notice shown to that appellant. We point out that the Pennsylvania Railroad had these cards in its possession, since it produced them in response to discovery proceedings. It cannot claim that it did not have notice of what was on them.

The final objection concerning the admission of evidence goes to the question of the exhibits offered by appellee. One of these exhibits was a plat map of the area of the accident. Upon objection of the railroads, the showing on the map of cyclone fences outside the immediate area in question was conceded as error, and that portion of the map which showed their presence was cut off. The result is a map with a large slit running along the railroad right-of-way. It certainly was impractical at the date of trial to have a new plat drawn up, so it was up to the Court below to balance the value of the evidence with the possibility of prejudice to the appellants. It has not been shown that the Court below abused his discretion.

The same applies to a photograph taken of the scene of the accident. That photograph showed the bridge at which the accident occurred with children playing on it. Before that evidence was permitted to go before the jury, the children were blacked out from the picture. We cannot say that such prejudice resulted from the introduction of this evidence that would require a new trial. Certainly, it would have been better had a clean picture gone to the jury, but we have not been shown an abuse of discretion or error such as to require a new trial. Brennan v. Leshyn, 51 Ill App2d 132, 201 NE2d 167 (1964).

The next error claimed, is that the court erred in allowing appellee’s counsel to read previous statements made by one of the witnesses to rehabilitate that witness after cross-examination. The appellants’ claim that the impeachment went to one small part of the testimony given on direct, and that the rehabilitation amounted to a grand repetition of the entire testimony on direct. The question of what is proper to rehabilitate the witness is one for the sound discretion of the trial court. We cannot say that discretion was abused in this instance. People v. Burke, 52 Ill App2d 159, 201 NE2d 636 (1964).

All in all, this court may not fully agree with each and every ruling which the Court below made with regard to the proffered evidence, but we cannot say that there was such an abuse of discretion that justice would demand a new trial. As has been often noted, few trials are completely free from the taint of error, and we will reverse only when some substantial prejudice has been shown. Kinsch v. DiVito Const. Co., Inc., 54 Ill App2d 149, 203 NE2d 621 (1964).

The appellants’ last set of objections goes to the instructions given the jury. Their first claim is that the jury was improperly instructed as to the import of the Kahn case. They claim that plaintiff’s instruction 4 (IPI Instruction 120.04) omits the requirement that the landowner must anticipate that children, because of their immaturity, will fail to appreciate the risk involved. They claim, in addition, that the basic requirement of negligence has been left out.

To dispose of the second objection first, the requirement of negligence was not left out. The jury was instructed that to prove his case the appellee had to show among other things that there was a condition which the appellants knew or should have known involved a reasonably foreseeable risk of harm to children, and second, that the appellants knew or should have know that children would be likely to trespass on the premises. The proof of such a situation does constitute a proof of negligence under the Kahn doctrine, unless the defendants can show the cost of remedying the situation would be excessive.

As to the claim that the instruction left out the requirement that the landowner must anticipate that children, because of their immaturity, will fail to appreciate the risk involved, it is clear that had the jury found that children would have appreciated the risk involved in the moving railroad trains, it would have to have found that there was no reasonably foreseeable risk of harm to children. Had the children been able to foresee the risk, they would not have gone on the trains, and there would have been no reasonably foreseeable harm that could come to them. We feel that the instruction fairly covers all matters included in the Kahn doctrine.

The next objection is made to the instruction which sets forth the issues in the case. We have read the instruction carefully and feel that it adequately sets forth the issues. It is true that no mention was made in that instruction that the appellee had violated a Chicago Municipal Ordinance by flipping the train but the instruction included an Illinois Statute which was almost identical to the Chicago ordinance. As a result, the jury was informed that it was against the law for the appellee to flip a ride on the train, so while it was technically error to omit to inform the jury that an ordinance had been violated as well, we cannot say that such error was prejudicial.

It is also claimed that this “issues” instruction fails because it does not set forth the Kahn doctrine, the appellants claiming that whether they violated that doctrine or not was the true issue of the case. We have, however, just discussed the instruction which dealt with the Kahn doctrine. Every issue of the case need not be in the same instruction. The jury was told to construe all the instructions together to determine what the law is. They were not misinformed.

The appellants claim it was error for the court not to instruct the jury that plaintiff was a trespasser on the right-of-way, and as a result, until his presence on the tracks was known, the Baltimore and Ohio owed him only the duty not to wilfully and wantonly injure him. The testimony was clear that his presence on the tracks was known by the engineer of the train. The evidence is uncontradicted that the engineer waved at the appellee and his brother and that they waved back. Moreover, the railroad had notice that children habitually played on the tracks. Having such notice, the railroad owed a duty of ordinary care to see that these children were not injured by their moving trains. This instruction, therefore, misstates the law and was properly refused.

The appellants offered instructions which stated that neither the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company, nor the Pennsylvania Railroad Company had a duty to build a fence on the premises in question. These were refused by the Court below. The refusal was proper, for, as we noted earlier in this opinion, the question of whether these railroads should have built a fence to keep the children off the tracks was a question of fact for the jury.

Finally, the appellants object to appellee’s instruction which states: “More than one person may be to blame for causing injury. If you believe that one or more of the defendants were negligent and that its negligence caused injury to the plaintiff, it is not a defense that some other defendant or some third person may also have been to blame.” This is basically IPI Instruction 12.04. The appellant’s objection to this instruction is that it is negative in form; that the committee which wrote the IPI instructions said that negative instructions were frowned upon; that this instruction which tells what is “not a defense” was recommended in violation of the Committee’s own standards; and that it was error to give it, for it could only add confusion. The appellee replies that the jury might feel that the City might be responsible for not building fences, or that the crew of the train which injured the appellee might be responsible. The jury was properly instructed that these appellants’ negligence was in question, and the fact that someone else might have also been negligent was not a defense.

We hold that there was no prejudicial error committed in the course of the trial and we, therefore, affirm the judgment of the Court below.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE KLUCZYNSKI

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James P. Mitchell, Defendant-Appellant.
    Gen. No. 50,469.
    First District, First Division.
    February 18, 1966.
    Rehearing denied July 19, 1966.

      Charles A. Brady, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, James P. Mitchell, was convicted in a bench trial of murder and sentenced to twenty-five years in the penitentiary. His reasons for appeal are that (1) the state failed to prove him guilty beyond a reasonable doubt and (2) he was deprived of a fair trial because of (a) incompetency of counsel and (b) conduct and prejudicial errors on part of the trial court.

The evidence before the court was as follows: Fannie Mae Webber, common-law wife of Willie Edwards, the deceased, testified that she was with him at about 10 or 10:30 on the evening of August 6, 1960 in the Edwards restaurant. Willie left her and went to the Frader Juke Box Lounge next door. After a certain length of time she joined him in the lounge. They then left and as they were walking toward their car which was parked across the street, defendant came up and told the deceased he wanted to talk to him. She entered the car and the two men went into the alley adjacent to the lounge. She said they then grabbed hold of each other and “were just tussling” when some fellow came from across the street to try to separate them. She left the car and ran into the restaurant to get deceased’s brother, Jesse, who came out and went to where the men were “tussling.” In her excitement she reentered the restaurant and when she came out the second time “they were still tied up.” Jesse and one Chuck Willet were separating them. Again, she entered and came out of the restaurant and then saw Willie’s car backing out of the alley with Jesse driving and Willie in the passenger seat. “A couple minutes later someone yelled Look out, look out, he has a gun.” She was on her way to the car when she saw defendant running out of the alley toward it. Police officers were on the scene. The car was stopped in the street, having been “blocked” by a police car. Defendant was standing at the passenger side of the car, firing into it. She heard about four or five shots. The officer then took hold of the defendant. Later defendant and the deceased were transported to a hospital. On cross-examination she said she did not see a knife; that Jesse had nothing in his hands when he came out of the restaurant, and that she did notice blood on defendant’s back.

Jesse Edwards testified he was employed as a cook for his brother, Cleve Edwards, at the Edwards restaurant. He saw his brother Willie, the deceased, and Fannie come into the restaurant, and saw Willie leave and Fannie follow shortly thereafter. Later Fannie came for him and he ran out into the alley where he saw Willie and the defendant tussling with each other. He tried to break them up. Finally, he got them apart and told Willie he would take him home. He “put Willie on the passenger side of the car.” Chuck took the defendant up the alley about 50 feet away from the car. Jesse got into the driver’s seat, backed the car out into the street and as he started to proceed down the street he saw the defendant, with something in his hand, running from the alley some 60 feet away. Willie, seeing Mitchell with whatever he had in his hand, “laid over in the car.” Jesse proceeded slowly down the street when he heard someone holler “Halt.” He saw defendant running along the passenger’s side of the car and heard about three or four shots. He stopped the car and a police officer came up. On cross-examination Jesse said that when he left the restaurant he had nothing in his hand; he did not notice any weapon in the possession of either of the men quarreling; he did not notice any blood on either of the men and that it was about a minute between the time the fight broke up and defendant appeared with the gun. “At the time when we separated James Mitchell and my brother, Willie, I took Willie to the car and Chuck Willet took James Mitchell up the alley in front of the car and he went behind [to the rear of] the building and just as I started up the car, backed out into the street and when I started pulling away, that is when I saw Mitchell come back running out of the alley.”

Jesse Macklin, a bystander, saw defendant and deceased fighting and the “break up.” He said he saw Willie and his brother Jesse get into the car and the defendant “disappear” down the alley. Jesse backed out of the alley and “headed” into the street. Mitchell came running out of the alley up to the car and started to point and shoot into the car. He fired three, maybe four, shots. When cross-examined, he said he saw Jesse come out of the restaurant and he had nothing in his hands. He saw blood on Mitchell’s back. He noticed no weapon in possession of either men fighting.

Police officer Grimes and his partner, Pamon, were cruising in a squad car. After a conversation with an unidentified man, they proceeded to the scene, a half Mock east. As Grimes was preparing to make a left turn into the alley from the middle of the street, an automoMle was backing out and proceeded west down the street. He saw defendant ten or twelve feet in the alley, running out into the street with a gun in his hand. Grimes and his partner got out of the police car and he hollered “Halt.” Defendant ran to the car which had stopped and fired five shots. The officers disarmed and placed defendant in custody. Grimes went to the passenger side of deceased’s car, opened the door and observed a knife with the blade closed lying on the front seat, near the deceased. Mitchell, the defendant, had blood stains on his shirt. The knife had fresh blood on it.

Officer Rodgers, assigned to the investigation, saw defendant at the hospital and observed two wounds in his back.

Frader Culp, owner of the lounge said she was behind the bar waiting on customers when she heard shots fired. She went to the scene and saw the defendant’s back covered with blood. She saw a closed knife after the police picked it up.

Defendant testified that he was a disc jockey in the advertising and public relations business. He was at the lounge on the evening in question to take recordings of the band by means of his sound truck parked in front. He had a conversation with the deceased in the lounge concerning the fact that defendant was interested in having food served in the lounge. The deceased was “put out about it.” In the conversation the deceased said “You won’t be able to operate a restaurant over here because we have a restaurant next door.” Defendant went about his work, going to the truck and returning to the lounge. He later went outside, saw the deceased parking his car in the alley, and heard him say “Mitchell, I would like to speak to you.” They walked to the front of the car and deceased began verbally abusing him. The deceased swung at him, missed and fell. Defendant stepped back. Deceased started to lunge when defendant grabbed him “in the collar” and tried to dissuade him from any violence. Jesse came and defendant continued to plead that there be no violence. The deceased reached into his pocket and started to open a knife. Defendant started back four steps when he felt a “lick” in his back. He turned, swung deceased around and tripped him with his right foot causing both to fall to the ground. Deceased “hit” him in the back with the knife and defendant held him there. Jesse was coming to him with a cleaver. He became frightened and went to one knee, got out of the way, and started to run onto the sidewalk. The deceased made two more steps and hit him in the back. He stumbled from the “lick” and found himself near the sound truck. That is when he reached in and took the gun. He yelled to a girl to call the police. He heard footsteps and saw deceased and his brother, Jesse, and told them to wait for the police. “All this time I was shielded by the truck, so I went into the alley, followed them up into the alley and, just as Jesse said, he got into the driver’s side, [and] Willie got on the other side.” He followed, imploring them to wait for the police. Both Jesse and the deceased told him to get away from the car, that they weren’t going to wait for the police. Jesse pushed the door open and defendant fell back. He got up, saw the car start, the light go on, the car move in his direction, the direction he was running, and then back up. As he noticed the car was headed west in the street, he ran to the car saying “Hold it, you are supposed to wait for the police.” Deceased “at that time reached forward and took the same knife and he started to turn to the door and I shot one time up slightly, purposely to let him know that I had a gun, otherwise he would open the knife, but he still started to come forward, then I shot in the car, trying to shoot him in the hand, trying to shoot the knife as part of his hand, but the car being moving the bullet struck him in some other part that I later found out. And he had the knife in his hand at the very same time that I fired the shot and he was coming toward me and he kept moving and I fired the second shot. The third shot was fired after I noticed the knife was still in his hand and he kept coming toward me, but the first time, Your Honor, I had fired the gun away from the car.”

The fact of homicide was not disputed. Defendant argues that it was justified because of self-defense or mitigated because of provocation. The Criminal Code applicable at the time (Ill Rev Stats 1959, c 38 § 367) provided:

If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given. [Emphasis added.]

The evidence discloses that the deceased had abandoned the fight and the defendant was in pursuit at the time he fired the mortal shots. It was not a killing in self-defense. Defendant, in the alternative, contends that the homicide was manslaughter rather than murder. The statutes then in effect (Ill Rev Stats 1959, c 38 par 361) defined the offense as follows:

Manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection.

Applying these principles to the facts here, defendant’s contention must be limited to voluntary manslaughter (HI Rev Stats 1959, c 38 par 362):

In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given, and the killing sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder. [Emphasis ours.]

It was for the trial court to determine whether, from the evidence, there was an interval between the assault and the killing sufficient for the voice of reason and humanity to be heard. The court found there was and from the record we cannot say it was so unreasonable as to warrant a reversal.

Defendant next contends that “ [t] he neglect with which counsel for James Mitchell conducted his defense deprived the defendant of a fair trial.” He admits that where defendant has counsel of his own choice, the lack of skill or care exercised in the trial rarely affords a basis for reversal of a judgment of conviction. In People v. Williams, 26 Ill2d 190, 194, 186 NE2d 353 (1962), the court said that it had repeatedly held that the incompetency of counsel of one’s own selection cannot give rise to a claim of a denial of due process unless the representation was of such caliber as to reduce the proceedings to a farce and a sham. See also People v. Cox, 12 Ill2d 265, 146 NE2d 19 (1957); People v. Clark, 7 Ill2d 163, 130 NE2d 195 (1955); People v. Morris, 3 Ill2d 437, 121 NE2d 810 (1954). But defendant argues that after the judge “refused to allow him to hire different counsel” his attorney was no longer counsel of his choice, and that therefore this principle does not apply. We do not agree. The record discloses that after commencement of the trial and some testimony was heard, he requested substitution of counsel. Neither of the attorneys he suggested as a substitute was present or available, and his originally chosen counsel carried on with the active participation of the defendant whom the trial court commended for his capable assistance. Defendant’s complaint of his counsel’s incompetency in failing to call certain witnesses is unconvincing. Calling of witnesses is a matter of trial tactics upon which skilled lawyers will differ. People v. Palmer, 31 Ill2d 58, 65, 198 NE2d 839 (1964). Upon reading the record we further find that the testimony of these witnesses would be cumulative. It could add no more than what the proof and defendant’s version had established. He was not deprived of a fair trial because of incompetency of counsel.

Defendant claims the trial court committed reversible error when it precluded him from impeaching the witness Fannie Webber. The latter was recalled as defendant’s witness. On direct examination he began asking questions from a transcript of her testimony given at the coroner’s inquest. The court sustained the state’s objection to this line of interrogation. Although an offer of proof was made available, the questions and attempted impeachment are not contained in the record for our examination. Nevertheless, we feel that the matter was inconsequential and could not prejudice defendant so as to deny him a fair trial. Fannie Webber, as witness for the state, gave testimony regarding the preliminary tussle, position of the car involved, and the “couple of minutes later” when she heard someone cry out a warning that defendant was approaching with a gun. With the proof adduced, including defendant’s testimony, we do not believe any deviation from her original testimony would justify our disturbing the finding of the trial judge, who was the trier of the facts.

Defendant, finally, complains that the trial court committed multiple improprieties, thereby depriving him of a fair trial. We have searched the record and find such charge without substance. The discussions with counsel about the length of the trial, engagement of counsel with other court calls, the regulation of the trial hours, the chamber conferences, and the refusal of the judge to hear from the defendant' in chambers were properly part of the usual conduct in a criminal trial. The defendant’s rights were not prejudiced.

For these reasons, the defendant’s conviction of murder is affirmed.

It is our further belief that the defendant’s sentence to the Illinois State Penitentiary for twenty five years was excessive viewed in the light of all the conditions and circumstances of the occurrence. Under the authority of Ill Rev Stats (1963), c 38, par 121-9(b) (4), we have the power to reduce the sentence. A proper and just sentence, in our opinion, would be for a period of fourteen years. Defendant is hereby sentenced to the Illinois State Penitentiary for a term of fourteen years in lieu of twenty five, to be computed and served according to law.

Judgment affirmed and modified.

MURPHY and BURMAN, JJ., concur.

       Referring to Jesse’s testimony.


author: CRAVEN, J.

text:
    Dr. T. P. Leonard, Plaintiff-Appellee, v. Thomas Walsh, Defendant-Appellant.
    Gen. No. M-10,674.
    Fourth District.
    May 9, 1966.
    Supplemental opinion September 26, 1966.
    Thomas F. Walsh, pro se, of Lincoln, appellant.

      Burger, Geisler & Fombelle, of Decatur (Norman J. Fombelle, of counsel), for appellee.
   CRAVEN, J.

This action originated in the magistrate’s division of the circuit court of Macon County, in the form of a small claims complaint to collect $50 for medical services allegedly rendered by the plaintiff to the defendant. The action was instituted and the complaint signed by one “B. J. Smith agent for Dr. T. P. Leonard.”

The defendant, by special and limited appearance, filed a motion for change of venue, asserting his residence to be in Logan County, and further alleging that the plaintiff had not rendered any medical services to the defendant in Macon County. The motion to dismiss was denied. Subsequently, judgment was entered against the defendant by default. This appeal is from that judgment. The record of proceedings from recollection indicates this cause of action to be predicated upon the following facts.

The defendant, an attorney, who resides in Logan County, requested the plaintiff, a resident of Macon County, to come to Logan County to testify on behalf of defendant’s client in pending litigation. Plaintiff agreed and did appear in Logan County for purposes of testimony. The request to testify was made of the plaintiff in Macon County.

The sole contention of the defendant here is that the judgment is “manifestly wrong” and in contravention of the venue provisions of the Civil Practice Act.

Section 5, c 110, Ill Rev Stats 1963, provides:

“Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely for the purpose of fixing venue in that county, or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.”

The phrase, placing venue “in the county in which the transaction or some part thereof occurred out of which the cause of action arose,” is determinative of the venue issue raised by this appeal. It is not necessary, as the defendant contends, either that the defendant reside in Macon County or that the medical services were performed in that county; rather, it is only required that some part of the transaction occurred in that county. It is clear from this record that such was the fact. The motion for change of venue was properly denied. Standard Mut. Ins. Co. v. Kinsolving, 26 Ill App2d 180, 167 NE2d 241 (1960); Consolidated Gasoline Co. v. Lexow, 316 Ill App 257, 44 NE2d 927 (1942).

This record shows this proceeding to have been instituted on behalf of an individual plaintiff by one who is described as an agent and who is not an attorney. The decision of this Court in Remole Soil Serv., Inc. v. Benson, filed April 12, 1966, 68 Ill App2d 234, 215 NE2d 678, requires a reversal of the judgment.

In this case, it is clear that one not licensed to practice law has instituted legal proceedings on behalf of another in a court of record. When this appears the suit should be dismissed, and if it has proceeded to judgment the judgment is void and will be reversed. 7 CJS Attorney and Client, par 16b.

The judgment of the trial court is reversed and this cause is remanded with directions to vacate the judgment and dismiss the suit at the plaintiff’s cost.

Reversed and remanded with directions.

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

Supplemental Opinion On Rehearing.

Rehearing was granted in this case.

This court, on its own motion, received additional briefs and heard further argument of counsel on the matters discussed in the opinion.

In this case, the complaint was filed by one “B. J. Smith agent for” plaintiff. It is urged that on the same date the complaint was filed, a request for summons was filed, bearing the name of an attorney, and that thereafter an attorney represented the plaintiff throughout the proceeding.

The Civil Practice Act, § 13 (1) (Ill Rev Stats 1965, c 110, par 13(1)), provides, “Every action . . . shall be commenced by the filing of a complaint . . .” Rule 9-1 of the Supreme Court rules (Ill Rev Stats 1965, c 110, § 101.9-1B), governing small claims, provides that an action on a small claim may be “commenced by . . . filing a short and simple complaint . . .” That which initiates the proceeding is the complaint, not the praecipe for summons. See Historical and Practice Notes, SHA c 110, § 13.

As early as 1841, it was held that no person can commence an action in a court of record as “agent” for another unless he is a regularly licensed attorney. Robb v. Smith, 3 Scam (4 Ill) 46. Subsequent pronouncements on the subject do not modify the philosophy underlying this holding. See ILP, Attorneys and Counselors, § 15, and cases there cited.

For the reasons stated, we adhere to the views set forth in our original opinion, and this cause is reversed and remanded with the directions contained in the original opinion.

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


author: GOLDENHERSH, P. J.

text:
    Washington Manufacturing Company, Inc., a Corporation, Plaintiff-Appellant, v. American Uniform Rental Company, a Partnership, and J. Wes Gentry, Cecil Oller, Joseph Coughlin, and Harmon Bowman, Partners, Defendants-Appellees.
    Gen. No. 65-112.
    Fifth District.
    July 5, 1966.
    Rehearing denied July 26, 1966.

      Frank E. Trobaugh and Stephen E. Brondos, of West Frankfort, for appellant.
    August L. Fowler, of Marion, for defendant-appellee, Joseph Coughlin, and Kenneth B. Powless, of Marion, for defendants-appellees, J. Wes Gentry and Harmon Bowman.
   GOLDENHERSH, P. J.

Plaintiff appeals from the judgment of the Circuit Court of Williamson County entered after denial of plaintiff’s petition to set aside a prior order of the court dismissing with prejudice, plaintiff’s cause of action.

Plaintiff filed suit on November 27, 1961. Defendants Gentry, Coughlin and Bowman individually, filed answers, denying the allegations of the complaint, denying defendants were partners, and as an additional defense, each defendant alleged that plaintiff, a foreign corporation, is unlawfully engaged in doing business in Illinois and may not, therefore, maintain this action. No pleading was filed for defendant, Oiler. On May 3, 1963, each of the three defendants named filed a motion for judgment on the pleadings.

On December 18, 1964, a notice bearing the signatures of the Chief Judge and two associate Circuit Judges of the First Circuit was issued, listing a number of cases, including the one on appeal, and notifying counsel and litigants that the cases would be reviewed on January 18, 1965, that if parties or counsel did not appear at that time to “show good cause,” all cases “in which no appeal is pending, and in which no motion or order has been made for two years or in which no action has been taken or attempt made for trial or disposition within two years preceding the call may be dismissed for want of prosecution, or may be summarily dismissed by the Court and shall not thereafter be docketed without good cause shown.” The notice further provides that upon a dismissal order being entered, the Clerk shall immediately give notice thereof to each party who has appeared and against whom the order is entered, or his attorney of record. The notice includes, verbatim, section 50.1 of the Civil Practice Act (c 110, § 50.1, Ill Rev Stats 1965).

The record does not show whether, or in what manner, this notice was communicated to counsel. Plaintiff’s attorney of record, whose office is in an adjoining county in the First Circuit, is attorney of record in three of the thirty-one cases in the list attached to the notice.

The next order entered in this case is dated January 18, 1965, and recites that the “cause is called pursuant to setting and notice sent to all attorneys of record.” It further states that plaintiff’s attorneys do not appear, defendants’ counsel are present in court, and on motion of defense counsel, that “this cause be dismissed after the expiration of 30 days from this date unless plaintiff appears within such time and shows good cause for reinstatement or other disposition.” The order is marked “Filed April 13,1965.”

An order dated April 12, 1965, and filed April 13, 1965, recites that plaintiff has not appeared within 30 days of January 18, 1965, no oral or written motion has been filed by plaintiff, and orders the cause dismissed, with prejudice.

On June 10, 1965, plaintiff filed a petition based on section 72 of the Civil Practice Act, for reinstatement of the case, verified by its then counsel of record. The petition and the affidavit filed in support thereof state that subsequent to the filing of the pleadings plaintiff answered written interrogatories, correspondence was had between counsel in an effort to arrange for depositions at times convenient for the parties, that a discussion of possible settlement took place on April 26, 1965, that neither plaintiff nor its attorney received notice of the orders dated January 18, 1965, and April 12, 1965, that plaintiff’s attorney became aware of the entry of these orders on May 25,1965.

On July 13, 1965, plaintiff, represented by the counsel who prosecute its appeal, filed an amended petition. In substance, the petition and supporting affidavits state that neither plaintiff nor its counsel received notice, nor were they aware of the entry of the orders of December 18, 1964, January 18, 1965, or April 12, 1965. They further state that a vice president of plaintiff, its then counsel and one of the defendants conferred regarding possible settlement of the case on April 26, 1965, and plaintiff’s counsel and one of the attorneys for defendants discussed settlement after that date, and neither defendant nor the attorney made any mention of the orders to plaintiff’s vice president or its attorney. The affidavits further state that plaintiff has a meritorious cause of action, facts in support of the statement are set forth in considerable detail, and copies of a number of exhibits are thereto attached.

Defendants filed a motion to strike the amended petition. On October 11, 1965, the circuit court made a docket entry allowing defendants’ motion to strike, and in a written order dated October 11, 1965, and filed October 29, 1965, the court “confirmed and approved” its order of April 12, 1965. The order also provides that defendants “have and receive from plaintiff, Washington Manufacturing Co., Inc., a corporation, all costs accrued herein as taxed by the Clerk of this court, and that they have execution therefor.” This appeal followed.

Section 72 of the Civil Practice Act (c 110, § 72, Ill Rev Stats 1965) provides the procedure by which a litigant may seek relief from final orders, judgments and decrees after 30 days from their entry. The petition invokes the equitable powers of the court, Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, and the granting or refusal of the relief sought should be tested by the principle of fundamental fairness to prevent injury, and seek the furtherance of justice. Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358.

In considering a motion to strike the petition, the facts well pleaded must be taken as true. Pierce v. Carpentier, 20 Ill2d 526, 169 NE2d 747. In order to be entitled to relief, a petitioner must show that he has a meritorious claim and that he and his attorney have exercised reasonable diligence. Mutual Truck Parts Co. v. Nelson, 69 Ill App2d 30, 216 NE2d 301.

Treating the allegations of the amended petition as true, plaintiff is entitled to the relief prayed. Plaintiff’s affidavits state that no notice of any of the orders was received by it or its counsel. It is true that the failure to give notice as required by section 50.1 of the Civil Practice Act does not impair the force, validity or effect of the order, but fairness requires that such notice be given. Nagel v. Wagner, 46 Ill App2d 2, 196 NE2d 728. The affidavits state that plaintiff’s first knowledge of the orders was on May 25, 1965, and the filing of a petition on June 10, 1965, shows plaintiff acted with diligence in seeking relief. Further, the record shows that motions for judgment on the pleadings were filed on May 3, 1963, which fact would serve to take the case out of the category defined in the order of December 18, 1964, which stated the coúrt would act on cases “in which no motion or order has been made for two years.”

As stated by the Appellate Court (Second District) in Mieszkowski v. Norville, 61 Ill App2d 289, at page 297, 209 NE2d 358, “While we recognize that rules of court must be observed if dockets are to be kept current, yet courts must, in a proper case, yield the procedural exactitudes to the more basic rules of fundamental fairness.”

Defendants argue that the pleadings show that plaintiff, by failing to reply to certain defenses, has admitted the truth of the defenses alleged in the answers and is precluded from proceeding here because of its violation of the provisions of ch 32, § 157.125, Ill Rev Stats 1965. The sole issue before this court at this time is the correctness of the trial court’s ruling on plaintiff’s petition and we do not reach issues that may later arise, Mahin v. Baltis, 34 Ill2d 413, 216 NE2d 132.

For the reasons herein set forth, the judgment of the Circuit Court of Williamson County is reversed and the cause remanded with directions to vacate the orders of April 12, 1965, and October 11, 1965, and reinstate the cause on the docket.

Judgment reversed and remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Angela Jones, Defendant-Appellant.
    Gen. No. 49,721.
    First District, Third Division.
    July 7, 1966.
    Rehearing denied July 21, 1966.

      R. Eugene Pincham and Charles B. Evins, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Upon a trial without a jury defendant was convicted of the illegal sale of narcotics and sentenced to ten to fifteen years in the State Reformatory For Women. The principal point made by defendant is that she was entrapped into making the “sale” by a special police informer who provided her with narcotics and that the State’s failure to call the informer as a witness to controvert that part of her testimony relating to entrapment is fatal to its case.

It is admitted that on the night of January 21, 1964, an exchange of narcotics for money took place between the defendant and the police informer, one Archie Washington (named in the indictment as “Johnny Rogers,”) at Vi’s Lounge, near 79th and State Streets, in Chicago. A police officer was inside the tavern and witnessed the transaction. Upon completion of the sale, defendant and the informer left the bar, whereupon two officers arrested defendant and found in her possession certain marked bills which had previously been given to the informer by the police. This is not denied by defendant.

Defendant testified that she worked as a domestic employee in Niles, Illinois, but that on the day in question she had not gone to work because of inclement weather and because she had worked the night before at a party given by her employer. She testified that she had known the police informer, Archie Washington, since 1953; that he was a gambling partner of her boyfriend, Junior Henderson; and that the three of them were often together socially; that on the afternoon prior to her arrest, she had been at Junior’s apartment; that Junior had left her there to clean up the place; that Archie came by and left an envelope (later shown to contain heroin), telling her that the parcel was for Junior. Archie then left the apartment, saying he would call back to see if Junior had returned. Subsequently Archie did phone and upon learning that Junior still had not returned, instructed defendant to bring the envelope to Vi’s Lounge and to wait there for him or for Junior, whichever one came first. Defendant says she waited at the tavern until Archie arrived, that she recognized the police officer, but that nevertheless she went with Archie to the rear of the tavern and sat at the bar near the policeman.

Archie asked defendant for the envelope and in return gave her a roll of bills, which she put inside her glove. Defendant inquired whether the money represented gambling winnings, for she knew that Archie and Junior had an arrangement to share the winnings or losses from their gambling efforts. Archie replied that the money was for Junior, and defendant, having before acted as a carrier of money between the two men, did not associate the payment of the money with the return of the envelope. The informer was not called as a witness, and the defendant’s testimony, as hereinbefore given, of the events culminating in the alleged illegal sale remains uncontroverted.

The court in People v. Strong, 21 Ill2d 320, 172 NE2d 765, defined entrapment as existing:

“ ... if it appears that officers of the law or their agents incited, induced, instigated or lured the accused into committing an offense which he otherwise would not have committed and had no intention of committing, and if a criminal design or intent to commit the offense originates in the mind of one who seeks to entrap the accused and who lures him into the commission merely for the purpose of arresting and prosecuting him, . . .” (P 324.)

In the Strong case, as in the present case, the defendant’s unrebutted testimony was that a person working for the police as an informer provided the defendant with the narcotics that were later used as the basis for a charge of illegal sale. There, too, the State failed to call the informer as a witness to refute the testimony of the defendant. The court said that while the State was not obligated to call the police informer, as held in People v. Aldridge, 19 Ill2d 176, 166 NE2d 563, the unexplained failure to do so may give rise to an inference against the State.

The decision in Strong went even farther than holding that the providing of narcotics by police agents to those suspected of involvement in drug traffic is entrapment. In condemning the practice, the court said:

“While we are sympathetic to the problems of enforcement agencies in controlling the narcotics traffic, and their use of informers to that end, we cannot condone the action of one acting for the government in supplying the very narcotics that gave rise to the alleged offense. We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sine qua non of the offense.” (P 325.)

In the instant case the State contends that the trial court was free to disbelieve the testimony of defendant and to conclude despite the absence of rebuttal testimony that she was guilty. The State cites People v. Glass, 16 Ill2d 595, 158 NE2d 639, where a conviction for illegal sale of narcotics was sustained despite the defendant’s alibi that he was simply returning a package which had been mistakenly left in his room by the police informer. The court held that the evidence presented by the prosecution, taken with reasonable inferences therefrom, was sufficient to warrant the trial court’s rejection of the defendant’s explanation. The circumstances in People v. Glass, supra, are sufficiently similar to those in People v. Strong, supra, so that no meaningful distinction can be made in an attempt to reconcile them. In Glass, as in Strong, the defendant sought to negate guilt by testimony that the police informer was somehow able to vest possession of narcotics in the defendant and later make it appear to police officials that the defendant was selling the drugs to the informer. In Glass, however, the court did not discuss the problem thought to be controlling in the Strong case; that is, whether a conviction may be sustained where the prosecution does not present the informer as a witness to rebut the testimony of the defendant tending to prove that the informer sought to entrap the defendant. The court’s response to the issue raised in the Strong case makes it apparent that where crucial elements of the State’s case depend upon the work of an informer, he must be called upon to controvert the testimony of the defendant tending to prove entrapment. This principle is especially applicable in the instant case, where the informer himself is an addict under indictment for narcotics violations. We consider the later ruling in Strong binding upon us.

The State argues that defendant in the instant case may not raise the defense of entrapment because she has denied the commission of any crime, and cites People v. Realmo, 28 Ill2d 510, 192 NE2d 918, in support of its contention. In that case the defendant was barred from raising the defense of entrapment where he denied “the commission of the acts constituting the offense”; that is, he not only denied selling narcotics, but denied having possession of the drugs. In other words, he denied being involved in the transaction. In the instant case the defendant does not deny that she was in possession of an envelope containing narcotics or that she gave the envelope to the informer and received the money. She has an explanation which, if accepted, exculpates her of the knowledge or intent necessary to constitute her acts criminal. This distinguishes the instant case from Realmo, supra. Under such circumstances the defendant is not precluded from asserting the defense of entrapment.

Defendant also charges that the indictment was defective in that it named the informer as “Johnny Rogers,” whereas his correct and known name was Archie Washington. The state contends that in an indictment for the sale of narcotics, the name of the purchaser is not an essential element. It appears to us, however, that the use in an indictment of a special code name known only to the police is susceptible to abuse. We do not, however, decide the case on that ground.

Defendant’s brief filed in this case consists of 94 pages of typewritten matter. In addition, defendant filed a reply brief of 37 pages and a supplemental reply brief of seven pages. The briefs are replete with extensive quotations from authorities. Counsel is experienced and should be aware of the demands on the court at this time. We expect him not only to adhere to the rules relating to these matters, but in a case such as the one before us, which presents relatively simple issues, to state his case briefly and simply.

The judgment is reversed.

Judgment reversed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Appellee, v. Hollice Neyland, Appellant.
    Gen. No. 50,544.
    First District, Second Division.
    July 7, 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 S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in fall.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Lee Smith, Defendant-Appellant.
    Gen. No. 49,577.
    First District, Second Division.
    July 7, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Cornelius E. Toole 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 B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to he published in full.


author: MR. PRESIDING JUSTICE BRYANT

text:
    George Kelrick, Plaintiff-Appellee, v. Hannah L. Koplin, Harry Koplin and Glencoe National Bank, Defendants, Hannah L. Koplin, Defendant-Appellant.
    Gen. No. 50,623.
    First District, Second Division.
    July 7, 1966.
    Rehearing denied and opinion modified September 20, 1966.

      Brown, Dashow & Langeluttig, of Chicago (Jack Joseph, of counsel), for appellant.
    Marovitz, Powell & Pizer, of Chicago (Harold Marovitz and Joseph H. Horwich, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from the granting of a motion for summary judgment in the Circuit Court of Cook County, June 26, 1964, and from an amended summary judgment entered February 17, 1965. The appellant urges that a sufficient question of fact was presented to the court below to prevent the entering of summary judgment, that the finding that there was no just reason to delay enforcement or appeal was error, and that the allowance of interest in this action for conversion was improper.

The original complaint in this action was filed February 3, 1958, by George Kelrick, doing business as National Jewelry Co., against Hannah L. Koplin, Harry Koplin and the Glencoe National Bank. That complaint alleged that the plaintiff had delivered to Hannah L. Koplin certain articles of jewelry under a contract of bailment under which Mrs. Koplin was permitted to take the jewelry with her for the purposes of inspection. It was alleged that the jewelry was never returned, although demand was made of Mrs. Koplin. A temporary injunction was issued which ordered the Glencoe National Bank not to permit the removal of the articles of jewelry from a safe-deposit box rented by the defendants. This injunction was set aside by this court in Kelrick v. Koplin, 19 Ill App2d 301, 153 NE2d 481 (1958). On December 29, 1958, the complaint was amended to add a Count II which realleged the facts in the earlier complaint, and also alleged the value of the jewelry in the possession of Hannah Koplin to be $5,818.75. The plaintiff sought recovery in that amount. The original Count I was eventually dismissed and is not before us now.

An answer and counterclaim was filed in which it was alleged that Kelrick owed Harry Koplin the sum of $10,000. It was said that Harry Koplin accepted in partial payment the items of jewelry in question. It is also alleged that Hannah Koplin was acting solely as agent for her husband when she picked up the jewelry at the plaintiff’s store. It is alleged that the printing on the form signed by Hannah Koplin did not represent the true agreement between the parties. The counterclaim asks- a judgment in the amount of $4,181.25 plus interest, that sum being $10,000 less the value of the jewelry received.

A motion for summary judgment was subsequently filed in the Circuit Court asking that the counterclaim of Harry Koplin be dismissed with prejudice for the reason that a Kentucky court had determined that the $10,000 debt claimed by Mr. Koplin was not owed to him, thereby making the subject matter of the counterclaim res judicata. The motion for summary judgment also asked that a judgment be entered for the plaintiff in the sum of $5,818.75 plus interest thereon. After the filing of affidavits and interrogatories, the court below entered summary judgment for the plaintiff on his claim against Hannah Koplin in the sum of $5,818.25 plus interest in the sum of $2,401.06. The counterclaim was continued generally.

The plaintiff then sought to enforce his judgment, but discovered that there was no finding that there was no just reason to delay enforcement or appeal. As the counterclaim was still pending in the Circuit Court, the judgment granted the plaintiff was as yet unenforceable. Ill Rev Stats 1963, c 110, § 50(2). The plaintiff then went back to the Circuit Court and had the judgment amended to show that there was no just reason to delay enforcement or appeal. The appeal was then brought to this court.

The first question we shall consider is whether or not there was a question of fact that would preclude the granting of a motion for summary judgment. Ill Rev Stats, 1963, c 110, § 57 provides

“(3) . . . The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.”

It is undisputed among the parties that Mrs. Koplin went to the store of Kelriek and took certain jewelry. It is also undisputed that certain items were returned and other items taken in place of the returned merchandise. The dispute among the parties turns on whether Mrs. Koplin took the merchandise for herself, or whether she was merely acting as agent for her husband. As we noted above, Mr. Koplin claims he took the jewelry in part payment for a debt of $10,000 owed him by Kelriek. The Koplins maintain that Mrs. Koplin merely acted as agent for her husband in taking the jewelry from the store. They say that this was known by Kelriek, and that the only reason Kelriek is suing Mrs. Koplin for the return of the merchandise is she has no counterclaim against Kelriek while her husband does. Kelriek, on the other hand, denies these allegations and further claims that such evidence as is offered by the Koplins is barred by the parol evidence rule.

The writing in question is headed MEMORANDUM, and shows “From National Jewelers Co., 630 5th Ave., New York, N. Y.; To Mrs. Hannah Koplin, 547 Greenleaf, Glencoe, Ill.” Immediately under this there is printed on the form, the following:

"The goods described and valued as below are delivered to you for examination and inspection only and remain our property subject to our order and shall be returned to us on demand. Such merchandise, until returned to us and actually received, are at your risk from all hazards. No right or power is given to you to sell, pledge, hypothecate or otherwise dispose of this merchandise regardless of prior transactions. A sale of this merchandise can only be effected and title will pass only if, as and when we the said owner shall agree to such sale and a bill of sale rendered therefor.”

Following this there is a list of jewelry. Some of the items have been crossed off and marked returned; other items were added to the list after it was originally signed. The memorandum is signed “H. Koplin.” It is admitted that this is Mrs. Koplin’s signature.

It seems clear that on its face, this document is a contract of bailment whereby National Jewelers Co., the store owned by Kelrick, agreed to allow Hannah Koplin to take certain jewelry for inspection, and Hannah Koplin agreed to assume responsibility for the jewelry given her. We note that nowhere is there a mention of agency of any kind, nor is there any place where the name of Harry Koplin appears. The rule is set forth in III Corbin on Contracts, § 573 as, “When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” Corbin in that same section urges the issues involved in the application of the parol evidence rule to be “(1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate ‘integration’ of that contract?”

We have already held that this writing constitutes a contract; we assume the parties recognize this by virtue of the fact that none of them raised this question on appeal. As to the other two questions posed by Corbin there is more difficulty. The contract certainly would not seem to be void or voidable because of fraud or illegality, and the only possible mistake made was the signing by Mrs. Koplin in her own right rather than as agent for her husband. It may safely be assumed that Mrs. Koplin would say that the writing did not integrate the understanding she had with Kelrick. According to Corbin, any relevant evidence would be admissible to show mistake or a lack of integration of a previous agreement. Other authorities, however, would seem to be less liberal with regard to the admission of such evidence in a situation such as this.

As the Restatement, Second, Agency, § 322 makes clear, an agent making a contract for an undisclosed principal is himself a party to the contract. Restatement, Second, Agency, § 323 reads:

“(3) If the fact of agency does not appear in an integrated contract, an agent who appears to be a party thereto can not introduce extrinsic evidence to show that he is not a party, except:
“ (a) for the purpose of reforming the contract; or
“(b) to establish that his name was signed as the business name of the principal and that it was so agreed by the parties.”

There is no basis for finding that Mrs. Koplin signed her name as the business name of her husband and there has been no equitable claim that the contract be reformed. It would seem under the Restatement rule, therefore, that Mrs. Koplin would be barred from bringing in parol evidence to show that it was her husband and not herself who was the true contracting party. The cases would seem to bear out this conclusion.

We have been cited to no Illinois cases, nor have we found any, where with an unambiguous contract an agent was permitted to bring in parol evidence to show that he should not be personally liable on the instrument or agreement. We believe the rule is set forth in 32A CJS, § 991 at page 502 where it is said: “If a simple contract is on its face the undertaking of the agent only, no reference being made to any representative capacity, or if it is otherwise made in a manner to bind the agent personally, parol evidence will not be received to exonerate the agent from liability thereon.” We have read cases from several jurisdictions on this point, and all seem to uphold this rule. G. E. Conkey Co. v. Bochmann, 220 F Supp 284 (ND Iowa, 1963); Mid-American Corp. v. Miller (Okl), 372 P2d 14 (1962); Serio v. Chadwick, (La), 66 So2d 9 (1953). In Knickerbocker Portland Cement Co. v. State, 218 App Div 22, 217 NYS 652 (1926) it was held that where an agent signed a contract in his own name and the contract nowhere mentioned the existence of an agency or the name of the principal, parol evidence was not admissible to show that the agent was not personally liable. This case held, as many others have, that parol evidence is admissible to show that the principal should be bound along with the agent, but we need not go into that question here. Nor will we discuss the circumstances where an agent held liable under these circumstances will have a right of action against his principal.

In this case, the appellants have claimed there was a question of fact as to whether Mrs. Koplin was the agent for her husband. We believe that such testimony would violate the parol evidence rule as Mrs. Koplin signed a writing that was clear and unambiguous on its face.

It is claimed that the signature is ambiguous in that it is signed H. Koplin. It is urged that this could stand either for Harry Koplin or Hannah Koplin. It seems to be admitted, however, that it was Mrs. Koplin who signed this contract. The top of the paper has her name as the one who is receiving the merchandise. This being so, the signature H. Koplin no longer remains ambiguous.

The next question before us is whether the court below acted properly in finding that there was no just reason to delay enforcement or appeal. Ill Rev Stats, 1963, c 110, § 50 (2). The appellee points out that we would have this case in two separate appeals if this is allowed — the present proceedings and an appeal concerning the counterclaim for the balance due on the claimed $10,000 debt. We must say that we reviewed the record and we cannot say that the court below abused his discretion in making the finding he did.

The final question raised in this appeal is whether it was improper for the court below to have allowed interest on the amount found due. It is the general rule that interest is recoverable in actions on conversion only where there has been an unreasonable and vexatious delay of payment. Ill Rev Stats, 1963, c 74, § 2. Geohegan v. Union El. R. Co., 266 Ill 482, 107 NE 786 (1915), ILP, Damages, § 65. The reasonable defense of a suit does not constitute unreasonable and vexatious delay. People ex rel. Carpentier v. Central and Southern Truck Lines, Inc., 17 Ill2d 120, 160 NE2d 777 (1959), Geohegan v. Union El. R. Co., supra. In this case there seems to have been an honest dispute concerning a claimed $10,000 debt. We have been shown nothing in this case which would permit a finding that the delay in payment was unreasonable and vexatious. This being so, the court below acted improperly in assessing interest charges against the appellant. The judgment of the Circuit Court is modified to assess only $5,818.25, the principal amount as damages against Hannah L. Koplin, and as modified, the judgment is affirmed.

Judgment modified and as modified, affirmed.

LYONS and BURKE, JJ., concur.


text:
    People of the State of Illinois, Appellee, v. Archie Teycial, (Impleaded), Appellant.
    Gen. No. 50,997.
    First District, Second Division.
    July 7, 1966.
    Ronald S. Lopaty, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer G. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.