text:
    People of the State of Illinois, Plaintiff-Appellant, v. Delmar Hoagland, Defendant-Appellee.
    Gen. No. 66-111.
    Second District.
    May 24, 1967.

      William R. Ketcham, State’s Attorney, of Geneva, and W. Ben Morgan, Assistant State’s Attorney, of Elgin, for appellant.
    Hart, Banbury, Lawrence and Gullstrand, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal by the People of the State of Illinois from an order entered May 31, 1966, by the Circuit Court for the 16th Judicial Circuit, Kane County, that quashed an indictment against Delmar Hoagland.

On January 10, 1966, Hoagland was indicted for the offense of armed robbery. On February 3, 1966, Hoagland, by his attorney, filed a motion which stated that the defendant “believes” that one or more of the witnesses for the State “have given statements to the State’s Attorney, State Police, Police Department of the Village of West Dundee or St. Charles Policé Department with regard to the facts and circumstances surrounding and involving” the charge. The motion further recited that “justice demands” that the State furnish the defendant any such statements as well as any other evidence favorable to the defendant. It also asked that the records of the various police departments be made available to the defendant’s attorney for his inspection “to properly determine whether there is evidence in the possession and control of the prosecution favorable to the defendant.”

On March 31, 1966, a brief order pursuant to that motion was entered that provided “that the Police Departments be directed to allow the defendant or his attorney to copy police reports in regard to the above captioned causes of action . . . However, that order was apparently vacated by agreement of the parties and a more extensive hearing was held on the original motion. Thereafter, the court entered a detailed order dated April 28, 1966, but not filed until May 31, 1966. That order provided as follows:

“1. That the State’s Attorney of Kane County, William R. Ketcham, the Illinois State Police, the Police Department of West Dundee, Illinois, and the Police Department of the City of St. Charles make available their entire respective files in the above-captioned matter for inspection and copying by the defendant or his attorneys; and,
“2. That the State’s Attorney, William R. Ketcham, the State Police, the Police Department of the Village of West Dundee, and the Police Department of the City of St. Charles delete or withdraw from those files nothing whatsoever, of any kind, or nature, regardless of the nature or content of said information; and that defendant or his attorney be permitted to examine and copy anything and everything of whatsoever kind or nature in said files; and,
“3. That this court will not examine or review any of said files with a view to deleting or removing from said files any matters of whatever kind or nature which may be contained in said files, before directing that said files be opened up for examination and copying by the defendant or his attorneys; . . .”

The State’s Attorney for Kane County refused to comply with the order and, pursuant to a further motion of the defendant, the indictment was quashed and this appeal followed.

It has been the law in Illinois since the 1957 decision of The People v. Moses, 11 Ill2d 84, 89, 142 NE2d 1, that a defendant in a criminal trial is entitled to the production of any statements or documents that are contrary to the testimony of a prosecution witness for purposes of impeachment. In that case, the defendant was charged with armed robbery and it was established that an eyewitness for the State had given the police a description of the robber on the day of the crime. The court ruled that the defendant was entitled to inspect the police records of the prior statements of the witness at the trial.

The Moses’ decision was given further support in the 1960 case of The People v. Wolff, 19 Ill2d 318, 323, 167 NE2d 197, forward. Wolff was also charged with armed robbery. At his trial his attorney, in the cross-examination of an eyewitness for the State, attempted to establish that the witness had furnished the police with a description of the criminal shortly after the robbery. The trial court sustained the State’s objection to the questions and ruled that the defendant had no right to the production of any prior statements of a prosecution witness. The Supreme Court held that this was error on the basis of the Moses’ decision although the case was not reversed since the guilt of the defendant was sufficiently established by other competent evidence.

The Wolff case contains a detailed discussion of evolution of the Federal rule on the subject from the decision of Jencks v. United States, 353 US 657, through the resultant “Jencks Act” of Congress, Public Law 85-269, September 2, 1957, to the case of Palermo v. United States, 360 US 343. The court expressed approval of the Federal rule and repeated its doctrine as enunciated in the Moses’ case with the following further elaboration at p 327:

“Accordingly, we adopt the view that where no privilege exists, and where the relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the trial judge will inspect the document and may, at his discretion, delete unrelated matters before delivery is made to the accused.”

Under both the Federal rule and the decisions in Illinois it is necessary that the defendant establish that specific prior statements by the witness do exist and that the statements are either in his own words or substantially verbatim. The People v. Neiman, 30 Ill2d 393, 397, 197 NE2d 8. The defendant may demand that a record of the prior statements be made available to him for the purpose of impeachment. If the prosecution claims that part of the report contains matter that is not relevant, the trial court should examine the documents and, at its discretion, delete the unrelated material before delivery to the accused. The People v. Wright, 30 Ill2d 519, 529, 198 NE2d 316.

The doctrine has been expanded to include the defendant’s right to inspect any written material that a prosecution witness has used to “refresh” his present recollection. The People v. Scott, 29 Ill2d 97, 111, 193 NE2d 814; The People v. Hartgraves, 31 Ill2d 375, 377, 202 NE2d 33. However, it has not been extended to permit an accused an unlimited license to examine police reports. The People v. Ostrand, 35 Ill2d 520, 531, 221 NE2d 499.

The appellee in this case cites most of these same decisions in support of his position that the order of the trial court was correct. However, it is obvious that the order of May 31, 1966, not only involves an astonishing extension of the established rule but a radical departure from it. The defendant has not specified the statements or documents that he is entitled to inspect, but only that he “believes” statements have been made. He does not seek them for impeachment purposes since the trial has not commenced and no witnesses offered by the State. The trial court does not intend to exercise its function under the rule but states that it renounces that function and will not itself examine the police files. Instead, the order permits the defendant an unrestricted right to rummage through the files of the police and the State to discover what he may. Such a right clearly does not exist under the present law, nor in our opinion, should it be created for the future.

Although this appeal is technically only from the order that quashed the indictment, we reverse both that order and the order dated April 28, 1966, and remand the cause for reinstatement and further action.

Reversed and remanded.

DAVIS, P. J. and MORAN, J., concur.


source: Caselaw Access Project

author: CORYN, J. ALLOY, J.,

license: Public Domain

text:
    Professional Business Management, Inc., an Illinois Corporation, Plaintiff-Appellee, v. John J. Clark, Defendant-Appellant.
    Gen. No. 66-98.
    Third District.
    May 25, 1967.
    Rehearing denied July 5, 1967.

      William Parker Ward, of Chicago, for appellant.
    A. William Razzano, of Watseka, and Stephen M. Herman, of Chicago, for appellee.
   CORYN, J.

Plaintiff, Professional Business Management, Inc., (hereinafter called PBM), filed a verified complaint on September 12, 1966, for a temporary and permanent injunction restraining defendant, who had voluntarily terminated his employment with plaintiff on September 30, 1965, from breaching an alleged provision of their written employment agreement, as follows:

“Second party [i. e., defendant] expressly covenants . . . that for a period of two years following the termination of his employment ... he will not directly or indirectly . . . engage in the business of a professional business counselor in the City of Chicago or within fifty (50) miles of . . . Chicago . . . nor will he solicit or accept for business any client of . . . [PBM] who is a client of record of . . . [PBM] ... on the date of termination or within six months prior thereto.”

The complaint alleges that plaintiff is in the business of counselling clients, most of whom are doctors and dentists, on business practices in their professions, including recommendations as to suitable fees, control of expenses, proper budgeting, workable credit policies, collection procedures, investments, training of personnel, purchasing, preparation of income and disbursement records and tax returns, and also offers aid in the collection of accounts receivable. It is alleged that in consideration of his employment by plaintiff, defendant executed the foregoing covenant, but thereafter voluntarily terminated his association and then, in violation of said covenant, commenced soliciting clients of plaintiff for professional business management services, by reason of which plaintiff has lost clients and has suffered and will continue to suffer irreparable injury unless defendant is enjoined. On October 11, 1966, defendant filed an answer alleging in substance that there is nothing unique in the nature of plaintiff’s business; denying that the covenant aforesaid is supported by consideration; and stating certain other special defenses including that defendant learned nothing of plaintiff’s business in the course of his employment except what is available to any person, with an imderstanding of such matters, from many available publications in professional journals; and that the names of doctors and dentists who seek such services are readily accessible from any telephone listing. On November 4, 1966, before a reply was made to the answer, but after notice and hearing, the court entered the decree, from which both parties have perfected this interlocutory appeal, granting plaintiff a temporary injunction and restraining defendant from engaging in business as a professional counselor and from soliciting any clients of plaintiff, but limiting its effect to the City of Chicago, and a radius therefrom of fifty miles. Plaintiff claims that the territorial limitations of this injunction insofar as it relates to dealing with clients of PBM is erroneous, and that defendant should be restrained from dealing with any who were clients of PBM anywhere, if they were clients within six months of the date of plaintiff’s termination. Defendant contends that the issuance of the temporary decree was wholly erroneous since it does not preserve the status quo, but grants to plaintiff the ultimate relief to which it could be entitled after full hearing for a permanent injunction; that no prima facie right to such temporary relief was shown; that the covenant involved is unsupported by consideration, was fraudulently conceived, and is plainly void, unenforceable, and contrary to antitrust laws of Illinois; and finally, that plaintiff is barred by laches.

At the time of the hearing, it appeared certain that defendant was furnishing counselling services to five persons who were former clients of plaintiff during the six months preceding defendant’s termination of employment, and that two of these were outside of the territorial limitations of the temporary injunction. The proof also establishes that plaintiff is a corporation engaged in the business of counselling on accounting and business practices and procedures, the preparation of tax returns and in giving aid to clients in the collection and control of accounts receivable. Most of its clients, with whom it has only oral contractual relations terminable at the will of either, are doctors and dentists. It employs “counsellors,” and it claims to train these “counsellors” in the use of special forms and books, which it admittedly designed. Defendant, at the time of his employment by plaintiff, held a bachelor’s degree in education from Northern Illinois University, with a major in mathematics, a master’s degree from Northwestern University in educational administration, had studied accounting by correspondence courses from LaSalle Extension University, and had been employed for a number of years as an auditor to a golf club, and later, as assistant treasurer and credit manager for Hansen Scale Company, where he also performed the duties of a comptroller and office manager. He had also served as credit manager and chairman of the National Housewares Manufacturers organization. Various newspaper advertisements were received in evidence showing that plaintiff, in soliciting employees, established a college degree and knowledge and experience in accounting as employment prerequisites. Defendant testified that during his employment with plaintiff, he was supplied by PBM with certain of its publications concerning the nature or character of counselling and business and accounting practices and procedures, but that this information is available to anyone in publications of Commerce Clearing House, Prentice-Hall, other professional journals of CPA’s, and Kipling-er’s Letters, some or all of which deal with matters of business collection procedures, public relations, training of personnel, use of records and forms, insurance, investments, retirement plans and income tax.

Where an answer is filed to an application for a temporary injunction denying the material allegations of the complaint, and the legal sufficiency of such answer is unchallenged, a temporary injunction will usually not be granted unless after hearing the trial court reasonably concludes, on the basis of the evidence, that complainant will probably be entitled to the ultimate relief; that the applicant would suffer immediate and certain injury if the temporary relief requested were to be withheld; and that the granting of such protection outweighs any possible injury that might be done defendant by its issuance. See Nichols, Illinois Civil Practice, § 2285; 21 ILP, Injunctions, § 12. The scope of this review is limited to the question of whether plaintiff’s showing at the hearing on the petition for temporary injunction was sufficient to sustain the determination of the trial court. Schuler v. Wolf, 372 Ill 386, 390, 24 NE2d 162.

In determining whether a sufficient showing was made to sustain the temporary order, it is necessary to consider the question of what showing the law requires for the ultimate relief, not for the purpose of deciding whether the applicant is entitled to that, but for . the limited purpose of deciding only whether he has established favorable probabilities for such ultimate relief. Chicago Motor Coach Co. v. Budd, 346 Ill App 385, 390, 105 NE2d 140. In Vander Werf v. Zunica Realty Co., 59 Ill App2d 173, 177, 208 NE2d 74, the court decided that whether a restrictive covenant of an employment contract is enforceable, or void as against public policy, depends upon whether its time and place limitations are reasonable, and whether the covenant is shown to have been reasonably necessary for the protection of the employer’s business against competition by methods commonly regarded as improper and unfair. Such covenants were said to be unenforceable where their purpose appears merely to prevent competition per se. An employer, attempting to enforce such covenants, must show legitimate interests, such as trade secrets or confidential information, which reasonably need the protection of a restraint upon employees.

We conclude that the record here does not suggest the existence of any such legitimate business interests. Making defendant a “counsellor” may have offered him a different avenue for making use of his abilities, specialty or expertise, but it is a public avenue, so far as is made evident by the record, and not one to which the exclusive claims of the PBM appear justified. In The House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 225 NE2d 21, the Supreme Court of Illinois held a restrictive employment covenant unenforceable where its sole purpose was, as here, to create and establish a proprietary interest in clientele. In that case the employee was a lens fitter of special skill and was the principal, if not the only point of contact between the plaintiff employer and its customers, most of whom were referred by ophthalmologists. In this respect, that case is parallel to the facts in the case at bar, and seems indistinguishable in principle. Moreover, the employee there, after accepting new employment as a lens fitter, solicited business from ophthalmologists. The Supreme Court noted that the identity and location of these ophthalmologists was not a matter in which the plaintiff had a proprietary interest. It seems apparent that plaintiff, in the case at bar, could also have no proprietary interest in the identity and locations of physicians and dentists. The showing made in the record before us does not demonstrate that plaintiff has legitimate business interests of a nature requiring employee restraint, or that the danger of certain, great and irreparable injury to plaintiff from withholding temporary relief will outweigh the possible injury to defendant by granting it. What is involved is defendant’s right to use his special knowledge and understanding of business and accounting practices for the purpose of earning a livelihood without moving himself and his family beyond points of contact with half the population of Illinois. The injury that will derive from denying him that right is real and apparent. It is not apparent at all that plaintiff will sustain any certain legal injury by withholding injunctive relief until a clear right to it is proved. The decree of the Circuit Court is accordingly vacated, and the cause is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

STOUDER, P. J., concurs.

ALLOY, J.,

concurring specially.

I concur in the result of the opinion in the above case but not with all of the reasons assigned for such opinion. I feel that the case of The House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 225 NE2d 21, underscores the specific basis upon which this cause should be determined, where the court says at page 39:

“To stake out unrealistic boundaries in time and space, as the employer did in this case, is to impose upon an employee the risk of proceeding at his peril, or the burden of expensive litigation to ascertain the scope of his obligation. While we do not hold that a court of equity may never modify the restraints embodied in a contract of this type and enforce them as modified, the fairness of the restraint initially imposed is a relevant consideration to a court of equity. We conclude that the restrictions in the employment contract were not reasonably necessary for the protection of the plaintiff.”

The contract in the cause before us sought to establish a limitation on the employee in engaging in the business of a professional business counselor within a radius of 50 miles of the City of Chicago. While the time limitations would seem reasonable, this is not so as to the area limitation. On the basis of the record before us, it is not shown that the area restriction is reasonably necessary for protection of the plaintiff. As stated in the Hiyane case, the fact that the court had limited the application of injunctive relief thereafter to the municipal limits of the City of Chicago does not change the fact that the fairness of the restraint initially imposed did not appear to be reasonably necessary for the protection of the plaintiff. The considerations outlined in the Hiyane case, therefore, on the record shown in this cause justify withholding of injunctive relief unless a clear right to such relief is otherwise shown.


author: CORYN, J.

text:
    Leslie L. Harrison, et al., Plaintiffs-Appellants, v. Elmo J. Pullens, Defendant-Appellee.
    Gen. No. 66-105.
    Third District.
    June 14, 1967.

      William F. Nissen and Howard L. Snowden, of Quincy, for appellants.
    Barash & Stoerzbach, of Galesburg, for appellee.
   CORYN, J.

Plaintiffs, Leslie L. Harrison and Adeline Harrison, husband and wife, appeal from a verdict and judgment in favor of defendant, Elmo J. Pullens, in an automobile negligence case arising from an accident which occurred in midmorning of July 19, 1964, on a north-south blacktop road at Stillwell, Illinois, when a vehicle owned and operated by Leslie L. Harrison collided with one being driven by defendant. The weather was hot, visibility was clear, and the twenty-two foot wide blacktop road was dry and level, and there was no other traffic in the immediate area. Mr. Harrison testified that he was operating his motor vehicle in a northerly direction, and that when he was just south of Stillwell he observed defendant’s car approximately three-quarters of a mile away to the north. Mrs. Harrison was a passenger in her husband’s car and was seated in the right front seat. Harrison stated that he applied his brakes immediately and swerved to the left in an attempt to avoid a collision, but failed to do so. At the time of the impact, both cars were traveling at the rate of five miles per hour or less. The right side of both cars was hit, and the accident took place in the east half or northbound lane of this blacktop road. Harrison testified that defendant did not signal for a turn when he angled from the west side to the east side of the highway. Harrison received a bruised right forearm as a result of this collision, for which he incurred a hospital bill of $63.50 and a doctor bill of $17.50. Mrs. Harrison was cut across her forehead, which left a six-inch scar, and sustained fractures of several ribs on her right side, as well as other cuts and bruises. Her medical and hospital bills amounted to $1,219.34. The damage to the Harrison automobile amounted to $400. Mrs. Harrison testified that at the time of the collision she was sitting on the edge of the right front seat and was turned toward her husband. She first saw defendant’s automobile when it was two-car lengths away. The impact caused her right arm and right side to hit the dash, and her head to hit the windshield. Harrison stated that he was told that the skid marks from his car were measured at fifty feet to fifty-four feet.

Pullens testified that he was traveling in a southerly direction, on the blacktop road, and that when he was from 125 to 140 feet from the point of impact, he started to make a gradual angling turn from the west to the east side of the road for the purpose of stopping at a home on the east side of the highway. He stated that he cut across the road and proceeded to “straighten up” about seventy feet from the point of impact. He stated that he made a left-hand signal by pushing the arm of the electric turn signal on his automobile, and that he looked to the south when he made the left-hand signal, and again when he “straightened up” over on the east side of the road, but did not observe the plaintiff’s vehicle. The first time he saw the Harrison car was when he heard tires squealing on the pavement and looked up to find it approximately twenty feet ahead of him. At the time of the impact he was traveling very slowly, and the impact occurred on the easterly half of the highway, at which time the left wheels of his car were on the east shoulder of the highway. He testified that a patrolman measured fifty-four feet of north-south skid marks from the back of the front tires of the Harrison car at the point of impact. Both Harrison and Pullens testified that they had a conversation after the accident, at which time Pullens claimed he had signaled for the turn and Harrison claimed that if a signal had been made, he did not see it. Pullens testified that he had a conversation with Harrison three days after the accident in Mrs. Harrison’s hospital room, and that Harrison stated at that time that he could have gone around him and avoided the accident. Harrison denies this and claims that he merely stated that the accident, could have been avoided if both drivers stayed home and had not been on the highway.

It is argued by plaintiffs, inter alia, that neither of them was guilty of contributory negligence; that the defendant was guilty of negligence as a matter of law; that the verdict is contrary to the manifest weight of the evidence; and that the trial court erred in denying plaintiffs’ motion for judgment notwithstanding the verdict. These arguments intertwine, each involving the ultimate issues of proximate cause and freedom from contributory negligence. Plaintiffs imply that the undisputed fact that defendant left his lane of traffic and gradually crossed into the lane for traffic operating in an opposite direction was in violation of chapter 95%, § 151, El Rev Stats (Drive on right side of roadway) and therefore constituted negligence. Proof of violation of traffic regulatory statutes, alone, is not sufficient to establish negligence sufficient to sustain liability. It must be proved that the statutory violation proximately caused the injury complained of. Hestand v. Clark, 345 Ill App 480, 103 NE2d 652; Ney v. Yellow Cab Co., 2 Ill2d 74, at 78, 117 NE2d 74. Plaintiffs cite Martin v. Miles, 41 Ill App2d 208, 190 NE2d 473, as an example of an instance where an automobile driver was found to be guilty of negligence as a matter of law for crossing the center line and colliding with another vehicle in the opposite lane of traffic. This case, however, involved a sudden skidding into the opposite lane of traffic, while in the instant case the defendant turned his vehicle gradually, and at a slow speed into the northbound lane and was observed in so doing by Mr. Harrison when approximately 150 feet away. The evidence adduced regarding the manner of operating the Harrison and Pullens vehicles, with one exception, is undisputed. The only dispute is that Pullens claims he put on his left turn signal before starting the gradual turn into the northbound lane, and Mr. Harrison said he did not see such a signal.

We are of the opinion that the jury, in considering the evidence of this case, could rightfully infer that Mr. Harrison, having observed the presence of Pullens’ automobile in his lane of traffic 150 feet away, and there being no other traffic on this twenty-two foot wide straight and level blacktop road, if acting as a reasonably prudent man, could have avoided this slow oncoming vehicle by stopping or turning gradually to his left, and that Mr. Harrison’s failure to so act constituted the negligence which proximately caused this accident.

Illinois courts of review have repeatedly stated that it is not the function of judges to substitute their inferences and conclusions of fact for those drawn by the jury, unless those drawn by the jury find no support in the evidence. Unless an opposite conclusion is clearly evident, a jury’s verdict should not be disturbed. Izzo v. Zera, 57 Ill App2d 263, 205 NE2d 644. “Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue.” Ney v. Yellow Cab Co., 2 Ill2d 74, at 84, 117 NE2d 74.

We conclude that the verdict of the jury herein is founded in the evidence, and, therefore, the judgment of the Circuit Court of Hancock County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Tower Finance Corporation, Plaintiff-Appellant, v. James E. McLarning, Jr., Defendant-Appellee.
    Gen. No. 66-137M.
    Second District.
    June 5, 1967.
    Redman and Shearer, of St. Charles, for appellant; Constantine Konstans, of St. Charles, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph C. Gilliam, et al., Defendants. People of the State of Illinois, Plaintiff-Appellee, v. Robert W. Perschall, Defendant-Appellant.
    Gen. No. 10,781.
    Fourth District.
    June 1, 1967.

      Jack A. Brunnenmeyer, of Peoria, for appellant.
    Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, for appellee.
   SMITH, J.

The Circuit Court of McLean County found the defendant guilty of contempt of court for conduct arising out of his testimony as a witness in a criminal case and summarily sentenced him to 120 days in the county jail. The required judgment order detailing the salient facts was entered and the defendant now appeals. A brief recitation of the factual background is essential for a clear view of the picture portrayed by this record.

Defendant and two others were indicted for the crime of arson and burglary occurring on May 28, 1964. On May 29, the defendant confessed and involved not only himself but the other defendants in the case and detailed some of the occurrence events in the written confession. A motion to suppress the confession was filed and on November 15 and 16, 1965, after hearing evidence including the testimony of the defendant Perschall, the motion was denied. Trial of the three defendants before a jury began on April 18, 1966, and continued on the 19th, 20th, 21st and 22nd. On the 22nd, the State nolle pressed the case as to Perschall, an order granting him immunity from prosecution was entered and he was called to testify for the State and declared to be a hostile witness. In response to some 29 or 30 questions, he answered, “I don’t know” or “I don’t remember.”

On April 25, at the request of defense counsel, the defendant was again called and stated that he was tired when he testified on April 22, from working at night and being in court all day, and wound up by saying, “I still do not recall anything that happened prior to the time that I was arrested and I do not recall clearly the events of my arrest, but I do vaguely recall my being arrested. I do recall being taken to the Normal Police Station. I also recall that I was taken upstairs. After that I do not recall very much about what happened. . . .” At this point, the court intervened and indicated that summary punishment for contempt of court is an awesome responsibility for a court and should only be used when the most unusual circumstances exist. He stated that he had spent the weekend going over the testimony given on Friday, the 22nd, and on November 15; that he had read the full and complete confession that the defendant made in the case; stated that the defendant in the confession had a full and detailed memory of his activities on May 29 and, on November 15, had a full and complete memory of his activities during the day. The court then said, “Your answers are really tantamount to refusing to testify before this Court, and in my considered judgment much of your testimony is also false. This is unusual in that it doesn’t consist of flat contradictions, but merely of saying, T don’t remember,’ which I recognize is subjective. I find that the testimony which you gave yesterday, your statement today that you recall absolutely nothing of your activities prior to your arrest on May 29th false when it was made; that you knew it was false when it was made and that you testified in this fashion with deliberate intentions offending the dignity of this Court, interfering with this procedure and of the orderly administration of justice, . . .” The court then imposed sentence.

The defendant devotes much time in his briefs to complaining about the procedural route followed by the prosecution in the arson case. That issue is not before us on the present appeal. It is the conduct of the defendant which we scrutinize and whether or not that conduct furnishes an evidentiary basis for the judgment order finding him guilty of contempt. The court’s finding is two-pronged: The first is that the defendant’s conduct amounts to a refusal to testify and secondly, that the witness’ statements were as a matter of fact false and were known to him at the time they were given to be false. No case involving lapse of memory as a basis for contempt of court has been cited to us nor has our own research disclosed any such case. Ill Rev Stats 1965, c 38, § 106-3, reads thusly:

“Any witness who having been granted immunity refuses to testify or produce other evidence shall be in contempt of court subject to proceedings in accordance to law.”

Was the conduct of the defendant in this case in effect and in fact a “refusal” to testify ? In State ex rel. Luban v. Coleman, 138 Fla 555, 189 So 713, 714, it was held that testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt. Paragraph 106-1 of our Witness Immunity Statute provides that any material witness may “be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.” The words “refuses to testify” may be properly read as meaning “refuses to give oral testimony” on an issue then being investigated. Oral testimony material to a point in issue is evidence. “Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or on the other.” 3 Blackstone, Commentaries, 367; Am Jur2d, Evidence, If 1. The trial court was correct in concluding that the defendant refused to give evidence, refused to give oral testimony, and refused to testify to matters in issue on the arson and burglary case which were then within his knowledge.

The second prong of the court’s finding is unique in that we are not confronted with a situation where a defendant has on different occasions given sworn testimony diametrically opposite or contrary. Neither do we deal with a situation where the defendant had admitted in open court that he testified falsely on a prior occasion. The very narrow issue presented here is whether or not, when this defendant said “I don’t remember” or “I don’t know,” such statements were false and were known to the defendant to be false. It is thus immaterial whether facts stated in the confession or the facts testified to by the defendant on November 15 were in fact true or false. The defendant’s statements on April 22 and again on April 25 must be weighed in an atmosphere where the defendant had sat in open court for five days listening to testimony about the events of the fire and the burglary, where there was a confession in which he had detailed certain facts of the fire and the burglary, and where he had likewise testified on November 15 to facts surrounding such confession. The record shows this young man to be 21 years of age, alert, normally intelligent, a high school graduate, and that he was an articulate individual and had testified on November 15, in a calm and relaxed manner. At his own request, he was given the opportunity to rehabilitate himself on Monday, April 25. At no time did he repudiate the contents of the confession. At no time did he repudiate the testimony given on November 15. At no time did he suggest any believable physical or psychological reason for a total lapse of memory. It strains credulity to believe that he remembered nothing except the events occurring during the progress of the arson and burglary trial. It is pure sophistry to believe that after listening to the testimony offered and discussed during that trial that his memory was not refreshed. We must conclude as did the trial court that this posture of total failure to recall is false and that the statements made by him to the effect that he did not remember or did not know were deliberately, intentionally and knowingly made in the presence of the jury and in the courtroom and was done with the intention of offending the dignity of the court, of interfering with an orderly trial and with obstructing the orderly and ordinary administration of justice. We are not justified in disturbing the findings of the trial court as to questions of fact unless it may be said that such findings are contrary to the manifest weight of the evidence. They aren’t.

The same trial judge heard the testimony on the motion to suppress the confession. The same trial judge heard the evidence in the principal case of arson and burglary. The conduct of the defendant which was the basis for his finding of contempt was thus within his own knowledge and in open court. No other additional or extraneous evidence was necessary or required to support his findings. We thus deal with a direct contempt which, under our law, may be summarily handled. Direct contempt is any act or conduct committed in the presence of a judge during the course of a judicial hearing and which are thus within his personal knowledge and which are calculated to embarrass, hinder, or obstruct the court in the proper administration of justice or which is calculated to undermine its authority or dignity and which tends to bring the administration of justice into disrepute and invite public disrespect. A direct contempt may be dealt with summarily by such judge without the formality of pleading, notice or answer. People v. Gholson, 412 Ill 294, 106 NE2d 333; People v. Berof, 367 Ill 454, 11 NE2d 936; People v. Harrison, 403 Ill 320, 86 NE2d 208; In re Kelly’s Estate, 365 Ill 174, 6 NE2d 113.

One cannot read this record as we have without concluding that this defendant willfully refused to testify to facts within his knowledge, that his posture of lapse of memory is a transparent smoke screen and, that his statements that he didn’t know or didn’t remember are manifestly false. It must be remembered that this defendant was a codefendant in the arson and burglary case until the day on which he was called to testify. We would blindfold common sense if we did not conclude that the matter set forth in his confession and the matters testified to him in open court on November 15 were known to and discussed among these defendants prior to trial. We think the conduct and the statements of this defendant were not only calculated to but did undermine the dignity of this trial court, hinder the proper administration of justice, and could only adversely reflect on the judicial process in the minds of those who heard and observed it in the courtroom. We recognize, as did the trial court, that direct contempt must be exercised with judicial restraint and where the circumstances are unusual. It was and they are.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


author: CRAVEN, P. J.

text:
    Allen Brooks, Plaintiff-Appellant, v. Dean Berenz Asphalt Company, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 10,804.
    Fourth District.
    June 1, 1967.

      Thomson, Thomson & Mirza, of Bloomington (W. Loren Thomson, of counsel), for appellant.
    Livingston, Barger, Brandt, Slater and Schroeder, of Bloomington (James T. Foley, of counsel), for appellee.
   CRAVEN, P. J.

Plaintiff appeals from the allowance of a motion for summary judgment in favor of the defendant. The defendant is a paving contractor and was charged with negligence in creating and maintaining a deep and dangerous excavation at an intersection of a street which the defendant was in the process of repaving. Defendant’s contract was with the State of Illinois, Division of Highways.

The wrongful conduct alleged by plaintiff consisted in defendant’s failure to erect or maintain devices that would warn members of the public of the excavation in question. This allegation was expressed in the complaint in several alternative ways. Upon issue joined, depositions of witnesses were taken and filed and defendant thereafter filed the motion for summary judgment accompanied by affidavits. The plaintiff filed counter-affidavits.

The central issue was whether the defendant owed a duty to place warnings in the area of the excavation. The operative facts bearing on this issue disclosed that the excavation in question was neither created nor maintained by the defendant but was the result of work done by a maintenance crew of the State of Illinois, Division of Highways. The State crew had no connection with the defendant and the work in connection with the excavation was not a part of the defendant’s contract.

Further, the excavation came into being at a time when the defendant’s road crew was working on the street adjoining the excavation but approximately one and one-half or two miles away from the place in question. The contract of employment of the defendant by the State of Illinois did not impose any duty on the defendant to erect warning signs or take any action with respect to the excavation in question which was far removed from the area of construction being performed by the defendant. Plaintiff relies upon Rule 7.14 promulgated by the Department of Highways as tending to establish a duty on the defendant to warn the public of the excavation in question. That rule provides:

“When the special provisions provide that traffic is to be permitted to use the road during its construction, [which was true in the case at issue] the Contractor shall protect the work and provide for safe and convenient public travel by providing, erecting, and maintaining such barricades, red flags, and torches or lights as are necessary, and by erecting and maintaining the warning and other signs provided by the Department.”

We fail to find an inference from the existence of this rule that the Department of Highways required the defendant to post warnings to the public in an area outside the work area occupied by the defendant’s crew merely because work was being accomplished by others on the same street which the defendant was engaged to repave.

The plaintiff contends that there are discrepancies in the material submitted by the defendant in support of its motion for summary judgment and that additional matters made a part of the record by the plaintiff have created inferences sufficient to require the issue of the defendant’s failure to warn be submitted to the jury.

There does appear to be a discrepancy concerning the actual location of the defendant’s work crew on the day of the accident and some confusion occurs in attempting to resolve the particular time of a particular day certain witnesses refer to work done by the defendant’s crew. However, none of these discrepancies involve the basic fact that no member of the crew of the defendant performed work within one and one-half miles of the excavation in question prior to the accident, and therefore none of the discrepancies give rise to an inference that the defendant breached a duty owed to the plaintiff by failing to provide warnings that the excavation in question existed.

Summary judgment is a drastic method of disposing of litigation and the right of a party to invoke the remedy must be free from doubt. Inferences favorable to the party opposing the motion, even if arising out of undisputed facts, will prevent judgment. We are unable to find any facts or inferences in this record which would allow the plaintiff to submit the decisive issue of the defendant’s negligence to a jury. Giampa v. Sunbeam Corp., 68 Ill App2d 425, 216 NE2d 233, 236 (1st Dist 1966); Campione v. Henry C. Lytton & Co., 57 Ill App2d 147, 206 NE2d 780, 783-784 (1st Dist 1965). Neither the basic facts nor the inferences which arise from those facts are in dispute. The defendant had not assumed any obligation, by its contract or by any other action. The law does not impose a duty upon a contractor in charge of paving a street to erect warnings or barricades at an excavation created by someone else outside his own zone of work, unless a special relationship created by contract existed or a specific act of the contractor occurred concerning the excavation. The existence of a duty under particular facts is a question of law. Murphy v. Cory Pump & Supply Co., 47 Ill App2d 382, 197 NE2d 849, 858 (4th Dist 1964). There was no duty here and this was established in the summary judgment proceeding. The judgment of the trial court is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Hyman N. Gray, Defendant-Appellee.
    Gen. No. 10,818.
    Fourth District.
    June 1, 1967.

      Charles J. Ryan, State’s Attorney of Morgan County, of Jacksonville, for appellant.
    Albert W. Hall, of Jacksonville, for appellee.
   TRAPP, J.

The People appeal from a judgment dismissing an indictment charging armed robbery. Such order was pursuant to chapter 38, § 114-1 of the Code of Criminal Procedure (Ill Rev Stats 1963) and entered upon the ground that the defendant had been denied a speedy trial under the Constitution of the United States and of the State of Illinois, and chapter 38, § 103-5 of the Code of Criminal Procedure (Ill Rev Stats 1963).

On September 7, 1965, a verified complaint was filed in the magistrate division of the court, bail fixed and a warrant of arrest issued. On or about October 26, 1965, the Morgan County authorities discovered that the defendant was in the penitentiary at Menard, following a conviction in Greene County, Illinois, and serving a sentence of one to five years. On the latter date a “detainer warrant” was placed with the warden of the penitentiary for the arrest of the defendant.

On April 21, 1966, defendant filed his “Motion to Dismiss Charge” contending that he had not been accorded a speedy trial as provided in the Constitution of the United States and of the State of Illinois, and under the provisions of § 103-5 of the Code of Criminal Procedure (Ill Rev Stats 1963). On May 25, 1966, defendant was indicted for the offense set out in the complaint, and on July 8, 1966, the State’s Attorney procured a writ of habeas corpus ad prosequendum in the trial court pursuant to which on July 13, 1966, defendant appeared and the public defender was appointed to represent him. Subsequently, on July 20th, at the request of the defendant, the court dismissed the public defender and the matter was continued to allow the court time to appoint other counsel. On July 21, 1966, on the court’s own motion, it considered the motion to dismiss the charge theretofore filed and entered an order dismissing the “cause” and remanded the defendant to the penitentiary.

The contentions of the State’s Attorney include the propositions that the defendant had never been arrested or held in custody by virtue of the detainer warrant; that the offense charged is a felony which could only be prosecuted by indictment unless appropriate waiver was made, so that there were no proceedings pending in Morgan County by which defendant could have been prosecuted for armed robbery; and, finally, that the defendant was, in fact, brought to trial within 120 days after the date of the indictment.

The contention that the defendant was never arrested, or in custody pursuant to the warrant issued by the magistrate, calls for review of the effects of the prosecutive action. It is clear that pursuant to the complaint an arrest warrant was issued and bail fixed. We have found neither statutory nor case law definition of a detainer warrant. In reply to our questions during oral argument counsel seemed to agree that it was an arrest warrant that was not served promptly, but was held by administrative authorities to be served at the time of defendant’s release from his then incarceration. This appears to be a matter of comity and cooperation between law enforcement officials performed without statutory or other authority.

The Code of Criminal Procedure, chapter 38, § 107-5(c) (Ill Rev Stats 1963) provides that an arrest may be made anywhere within the jurisdiction of the State. Paragraph 107-9 (d)(6) provides that the warrant shall command the arrest of the person against whom the complaint is made.

The VI Amendment of the Constitution of the United States and art 2, § 9 of the Constitution of the State of Illinois, provide that an accused shall have the right to a speedy trial. The Code of Criminal Procedure, chapter 38, § 103-5(a) (Ill Rev Stats 1963) provides that:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody. . . .”

The State’s Attorney knew, as of October 26, 1965, of the whereabouts of the defendant within the State. It is clear that there was authority to serve the warrant and to proceed with the prosecution of the matter. He had, at all times, the procedural means which were ultimately employed to bring the defendant into court for arraignment and trial, as was actually done approximately 11 months following the issuance of the complaint. Here the only affirmative step taken was to insure that the defendant would not be released from custody at the penitentiary, but would be served with the pending warrant.

The Supreme Court has stated that it will not permit the State to evade the right of an accused to a speedy trial. People v. Fosdick, 36 Ill2d 524, 224 NE2d 242. In that case defendant was in custody in Champaign County upon a federal warrant. He was served with an arrest warrant issued upon a complaint filed in that county and served with a copy of the complaint. Counsel was appointed. The next day such complaint was dismissed, but a second complaint for the same offense was filed, and a second warrant was issued but not served. The Champaign County authorities then relinquished defendant to DeWitt County for trial upon other charges, a “detainer” being sent to the latter county which followed the defendant to the penitentiary where he was sentenced. Some 3 weeks later the defendant was indicted in Champaign County. When he was ultimately returned to Champaign County for trial, a motion for discharge under the statute was made. It was then contended by the State that the defendant had never been in custody for the Champaign County offense within the meaning of chapter 38, § 103-5 (Ill Rev Stats 1963). The Supreme Court found that such contention was unsound in that the defendant had been served with a warrant and should be considered in custody thereunder. The court stated that the State would not be permitted to evade the statute by a voluntary dismissal of the charges followed by a new filing of identical charges, and further declared that a voluntary relinquishment of custody to another jurisdiction could not be employed to deny the defendant the right to a speedy trial.

Again, in People v. Patheal, 27 Ill2d 269, 189 NE2d 309, the defendant, while on parole, was arrested upon a complaint and a preliminary hearing was held, and nearly 4 months after the arrest he was delivered to a parole agent as a parole violator. He was subsequently indicted upon the offense charged, and when defendant was discharged from the penitentiary he was taken into custody under such indictment. Upon motion for discharge, the State contended that the defendant had never been in custody for the offense charged in the complaint, but had been in the custody of the State as a parolee. The Supreme Court again pointed out that where the State knew of the whereabouts of the defendant but made no recognition of the right to a speedy trial through efforts to bring the defendant from the penitentiary, it would not permit the constitutional right to be thwarted through such technicalities or fictions. In People v. Swartz, 21 Ill2d 277, 171 NE2d 784, the State voluntarily relinquished custody of the defendant to Federal authorities, striking the indictment under which he was held with leave to reinstate. The Supreme Court held that the statute could not be evaded by refusing to prosecute through turning the accused over to Federal authorities. In People v. Emblen, 362 Ill 142, 199 NE 281, the defendant was arrested without a warrant. He was subsequently indicted but no warrant was ever served by reason of the indictment. The evidence disclosed that the defendant was actually held without a warrant for 7 months, purportedly for investigation. It was argued by the State that he had never been restrained upon the charge for which indicted. The Supreme Court again referred to technical evasions of the statute, saying at page 146:

“Officers may not thwart the provisions of the constitution and the statute by arresting without warrant and incarcerating a prisoner without an order of commitment of some court of competent jurisdiction.”

It is stated categorically that the duty to bring to trial is mandatory.

The State argues that the prosecution for this offense could only be commenced through an indictment and that defendant was, in fact, tried within the statutory period following indictment. This is answered in Guthmann v. People, 203 Ill 260, 67 NE 821, where it is said that the statute begins to run from the date defendant is in custody by reason of the service of a warrant, rather than the date of the indictment, for any other rule would permit evasion of the statute by failure to call a grand jury, or a nolle pros, so that the accused could be detained from term to term for want of a pending indictment. See also People v. Tamborski, 415 Ill 466 at 475, 114 NE2d 649; People v. Schmagien, 361 Ill 371, 198 NE 142.

The intention of our statute and its predecessor has been expressed in various ways to give a right to discharge upon a want of prosecution, Guthmann v. People, 203 Ill 260, 67 NE 821, and to insure a prompt trial, People v. Bryarly, 23 Ill2d 313, 178 NE2d 326.

While the State has not argued the proposition, older cases in this State had held that where the accused was serving a sentence, the statutory period for prompt trial did not commence until discharge from such sentence. People v. Franzone, 359 Ill 391, 194 NE 567. This holding, however, has been criticized as contrary to the weight of authority. People v. Ross, 13 Ill2d 11, 147 NE2d 309; People v. Swartz, 21 Ill2d 277, 171 NE2d 784, and we believe that it has been effectively overruled in People v. Fosdick, 36 Ill2d 524, 224 NE2d 242.

We note the several cases cited by the State. We do not believe that People v. Jones, 33 Ill2d 357, 211 NE2d 261, supports its position. There the defendant contended that the statutory period began to run from the date of the knowledge of the offense. Defendant was tried within the statutory period following the indictment, and the court’s opinion states that it could not be ascertained from the record whether the “complaint” was verified and sufficient to support an arrest warrant, or was in the nature of a “report” of the offense, but that, in any event, no warrant was issued and no action taken relating to the charges until the indictment. The facts and holding in People v. Arbuckle, 31 Ill2d 163, 201 NE 2d 102, are essentially similar. The State has cited People v. Lowe, 61 Ill App2d 262, 210 NE2d 31, but we believe that that authority simply points up the issue presented here. In that case defendant was arrested for burglary but was discharged by the magistrate for want of probable cause. At the same time he was sentenced as a narcotics addict. Following his release from such sentence he was extradited under an indictment procured for the original burglary charge. In affirming the denial of a motion for discharge, the court said:

“In both the constitutional provision and the statute explaining and implementing it, the crucial point is that there be a charge pending against the incarcerated defendant. In the case at bar this was not so.”

It is apparent from this record that the charge did continue to pend.

The Supreme Court has repeatedly stated that the statute in issue is designed to implement the constitutional rights and that it contemplates that all means which are available should be used, and that the burden is upon the State to try offenses promptly where the defendant is within the jurisdiction of the State. People v. Moriarity, 33 Ill2d 606, 213 NE2d 516; People v. Bryarly, 23 Ill2d 313, 178 NE2d 326. It is interesting to note that in the latter case defendant was on bond. There had been a delay of several years for disposition of defendant’s motions. When the case was set for trial it was discovered that defendant was in prison in another state under a sentence for 8 years. The trial court terminated the bond and directed that a “hold order issue forthwith.” In considering defendant’s contention that he should have been discharged when returned for trial, the Supreme Court found that there had been a delay of 5 years in trial, attributable to the prosecution, this period presumably being initiated by the termination of the defendant’s bond at the time that he was discovered in another state. It was held that the State’s failure to employ procedures for extradition for 5 years resulted in a violation of defendant’s constitutional rights.

Here the defendant was sentenced to a term of 1 to 5 years at the time the detainer warrant was placed, and it appears that his trial might have been delayed for a period as long as that in Bryarly, despite the fact that the defendant was within the jurisdiction of the State and the operation of chapter 38, § 103-5 (Ill Rev Stats 1963).

We conclude that under the decisions of the Supreme Court, the State’s Attorney was under a duty to prosecute the charge through trial within 120 days from the discovery of the whereabouts of the defendant and the concurrent placing of the detainer warrant. We cannot satisfactorily distinguish the failure to serve the warrant in this case from the dismissal of a complaint and the voluntary relinquishment of custody to another agency as in People v. Fosdick, 36 Ill2d 524, 224 NE2d 242; People v. Patheal, 27 Ill2d 269, 189 NE2d 309; People v. Swartz, 21 Ill2d 277, 171 NE2d 784. To say that defendant, although within the jurisdiction of the State, is not in custody upon the arrest warrant issued in Morgan County but voluntarily withheld from service, supports a fiction and authorizes evasion of the constitutional and statutory provisions for prompt trial, and would limit, if not completely thwart, the preparation of a possible valid defense to the charge.

The judgment of the trial court is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Coffman, Defendant-Appellant.
    Gen. No. 10,843.
    Fourth District.
    June 1, 1967.

      Zimmerly and Johnson, of Champaign (Stephen H. Katz and Philip Zimmerly, of counsel), for appellant.
    C. E. Corbett, State’s Attorney of Piatt County, of Monticello, for appellee.
   SMITH, J.

The defendant, a seventeen-year-old high school student, pleaded guilty to a charge of deceptive practices in writing a $10 check on his older brother’s account and was placed on probation. Six weeks later, the probation was revoked and the defendant was sentenced to the Illinois State Farm at Vandalia, Illinois, for one year. In appealing from this order, his principal contention is that he was denied procedural due process of law in that the revocation order was entered without benefit of counsel.

The revocation proceedings was instituted by an unverified motion of the probation officer charging that the defendant was not at his home during the entire night of September 30, and during the entire night of October 1, and that such conduct on his part violated the provisions of the probation order which required the defendant to be at his place of residence between the hours of 11:00 p. m. and sunrise each and every night unless he had the consent of the probation officer to do otherwise. On the call of the motion, the defendant appeared in open court along with the State’s Attorney and the defendant was presented with a copy of the motion to revoke probation. At the court’s direction, the State’s Attorney then read the entire motion to revoke in open court. Thereupon the following proceedings were had:

“The Court: What is your pleasure about this ? Do you want a hearing? Do you want to confess it or what do you want to do ?
“ (Hesitation by the defendant — he does not answer)
“The Court: You understand you are entitled to a hearing on this ?
“Defendant: Yeh.
“The Court: But it is a hearing before the Court and not before a jury.
“ (The defendant is not responsive)
“The Court: I am waiting for your reply. I want to give you full time to consider it, if you want further time to consider it I will give it to you. If the facts are true. . . .
“Defendant: (Interpose) They are true.
“The Court: You admit the statements as set forth in the Motion as being true and correct ?
“Defendant: Yes.
“The Court: Show—
“Defendant upon consideration of motion confesses same and admits as to the truth thereof. Hearing on Motion. Motion allowed. Order of Probation set aside and vacated and defendant sentenced, by reason of the conviction herein, to the Illinois State Farm at Vandalia, Illinois, for a period of one year and to pay costs. Mittimus to issue accordingly.
“The Court: You will go with the Sheriff.”

The statute antedating our present Criminal Code set out the ground rules for a revocation of probation. Among other things, it required that the defendant be furnished with a copy of the charge, that a hearing date should be set by the court allowing the probationer reasonable time to prepare his defense, and specifically giving to him the right to have counsel, coextensive with that right in the action which resulted in such probation. Ill Rev Stats 1963, c 38, § 789.1. The State urges that the repeal of this section and the elimination of these provisions in the new Criminal Code relating to probation, Ill Rev Stats 1965, c 38, § 117-1, 2 and 3, reflects a deliberate intention on the part of the Legislature to change the law as to these requirements. Such a conclusion is foreclosed by the due process provisions of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and by Article II, § 2, of the Illinois State Constitution. Due process may not be limited, delimited, circumscribed, modified or denied by legislative enactment.

A probation system has been a part of the Illinois law since 1911. Laws, 1911, p 277. It has undergone many statutory revisions and the case law prescribing and outlining the metes and bounds of the system are numerous. An extensive and careful study of the procedure required is set forth in People v. Price, 24 Ill App2d 364, 164 NE2d 528. See also People v. Franciere, 47 Ill App2d 436, 198 NE2d 170; State v. Headrick, 54 Ill App2d 44, 203 NE2d 157; People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113. In our judgment, the present Criminal Code must be interpreted in the light of these cases and that to “conduct a hearing” as the statute requires necessitates the procedure spelled out in them.

In People v. Burrell, 334 Ill App 253, 79 NE 2d 88, the defendant did not have an attorney and the then statute did not require one. The Appellate Court reversed the order revoking probation and said that justice required that the defendant be given an opportunity to obtain an attorney, and on the other hand if the court was not willing to continue the cause for that purpose, that the defendant should have been offered the services of the public defender. In Frunciere, the defendant was likewise without an attorney. The State’s Attorney confessed error under Ill Rev Stats c 38, § 789.1, which required the opportunity for an attorney and stated that the hearing on the revocation of probation was “conducted in violation of [defendant’s] statutory and constitutional rights to counsel.” In Price, the Appellate Court said: “It has frequently been said that notice to a defendant and opportunity to be heard are fundamental requirements and coexistent essentials of the constitutional guaranty of due process of law. While our Probation Act contains no such express requirement our courts have held that such rights are conferred. (Citing Cases.)” People v. Price, 24 Ill App2d 364, 376, 164 NE2d 528, 533. In Headrick, the court suggests that the procedure to revoke an order admitting a defendant to probation is of no serious consequence so long as the defendant has been given due notice, a copy of the charge, the opportunity to be heard, and a conscientious judicial determination has been made, according to accepted and well recognized procedural methods upon the question of his violation of the conditions of probation. This, the court said, would include the right to counsel and a reasonable time to prepare his defense. Thus our courts have, sometimes with the aid of statutory specifications and sometimes without, spelled out the requirements of procedural due process.

We do not imply that these rights may not be waived by any adult or by one under 18 years with the advice of counsel, if knowingly and understandingly done. The record before us fails to show either that the defendant knew of those rights or that he was advised of them or that he knowingly waived them. Indeed it is a paradox in itself to say that you may knowingly and understandingly waive rights of which you have no knowledge. There was no waiver here.

We would further observe that Ill Rev Stats c 38, § 113-5, provides that no person under the age of eighteen years shall be permitted to plead guilty or waive trial by jury in any case except where the penalty is a fine only unless he is represented by counsel in open court. Supreme Court Rule No. 401(c) appears to have broadened the base of this statute by saying that in no case shall a plea of guilty or a waiver of indictment or a trial by jury be accepted from a person under the age of eighteen years unless he is represented by counsel in open court. The solicitude thus expressed for a defendant under eighteen years of age should apply to this seventeen-year-old defendant on a plea of guilty to a violation of probation. Such a plea can and it did here result in incarceration. His liberty and his freedom is as much at stake in this plea of guilty to a violation of probation as it was in his original plea to the criminal charge. It is the pronouncement of an incongruity to say that advice of counsel is essential and required in the latter, but not in the former where a seventeen-year-old is involved. He had counsel in the original suit. He had none here. Substantial justice and due process require that the order revoking probation be reversed and remanded to the trial court with directions to proceed in conformity with the views herein expressed. It is so ordered.

Reversed and remanded.

CRAVEN, P. J. and TRAPP, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Lewis Elliott and Ruth Elliott, Appellees and Cross-Appellants, v. Richard C. Nordlof, et al., Cross-Appellees, City of Rockford, a Municipal Corporation, Appellant.
    Gen. No. 66-47.
    Second District.
    June 5, 1967.
    Rehearing denied July 20, 1967.

      John W. Nielsen, of Rockford, for appellant.

      Reese, Schlueter, Ecklund & Nissen, and Reno, Zahm, Folgate and Skolrood, of Rockford, for appellant.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

In July of 1964 the plaintiffs, Lewis Elliott and Ruth Elliott, brought an action against Richard C. Nordlof and Gunvor A. Nordlof, developers of Nordlof Subdivision in the City of Rockford, Illinois, and certain other persons who had purchased lots and constructed homes thereon, praying for damages and seeking injunctive relief for diversion of surface waters in the subdivision. They alleged that the construction of a street provided a drainage way for collecting surface waters that normally did not discharge or flow onto plaintiffs’ property, resulting in diversion. Subsequently, the City of Rockford was made a party defendant in Count II of the complaint.

A summary judgment for the defendants, other than the City of Rockford, was granted. From the record it appears that this was bottomed on the principle that the acceptance of the Subdivision Plat by the City of Rockford relieved the other defendants of all liability. The thrust of the argument to the court on Count I of the plaintiffs’ complaint against all of the individual defendants was for injunctive relief to correct the existing condition. In this light, we can well understand the trial court’s dismissal of Count I of the complaint. The City had approved the plat in December of 1962. It was recorded in January of 1963 and accepted for maintenance by the City in July of 1964.

Section 3 of an Act in relation to Plats, (Ill Rev Stats 1965, c 109, par 3) provides that upon acknowledgment and recordation, a plat shall be held in law and in equity to be a conveyance in fee simple of such portion of the land in question as is granted to the public. When the plat was recorded, the City then had exclusive control of the streets and surface water drains and any injunctive relief granted by the trial court against defendants, other than the City, would have been meaningless and of no avail. We concur with the trial court that Count I of the complaint seeking injunctive relief should have been dismissed.

In addition to the injunctive relief the complaint sought damages. The allegations pertaining to the owners who subsequently acquired lots and built homes merely charged the utilization of the drains, curbs and sewers provided by the developer. No complaint is made that these lot owners had participated in any way in the construction of the streets, drains or tiles which changed the flow of the surface water. We conclude this portion of the complaint did not state a cause of action against the subsequent lot owners for damages and was properly dismissed.

From the record it appears that the dismissal of the Nordlofs was founded on the sole ground that the acceptance by the City of the subdivision relieved the developers from any liability for damages occurring from faulty drains, either past, present or future. Authorities cited for this are not in point. They relate solely to the responsibility of a municipality after accepting a subdivision plat. Counsel advise they have no cases in point, nor are we aware of any. It is our opinion, however, that a developer or subdivider engineering streets and surface water drainage systems should not be relieved from damages caused by a diversion of surface water by the acceptance of a plat by a municipality. We feel that the trial court erred in dismissing Count I of the cause of action on the question of damages as to the Nordlofs.

During the pendency of the summary judgment proceeding, plaintiffs were permitted to amend the complaint by adding Count II wherein the City of Rockford was a party defendant. The additional count alleged that the street and storm water sewers diverted surface water from lands, which in the ordinary course of nature would not come upon the plaintiffs’ lands, thereby causing damage. The plaintiffs also sought injunctive relief. The answer of the City denied the diversion and on the trial of this issue the court found for the plaintiffs assessing damages against the City in the sum of $1500 but denied the injunctive relief. The City appealed and the plaintiffs cross appealed from the trial court’s order granting summary judgment dismissing the individual defendants. Since the plaintiffs did not appeal the denial of the injunctive relief, the question is not before us.

The parties are in agreement that Illinois has long followed the Civil Law Rule which states basically that surface waters must be allowed to flow naturally from dominant tracts to the adjoining servient tracts. Mello v. Lepisto, 77 Ill App2d 399, 401, 222 NE2d 543.

The diversion of surface water appears from the record to be the only issue heard by the trial court and the contention of the City that the damages complained of all occurred prior to the acceptance by the City of maintenance in July of 1964 cannot be raised for the first time in the reviewing court. The theory, upon which a case is tried in a lower court, cannot be changed on appeal; and an issue not presented to, or considered by the trial court, cannot be raised for the first time on review. McMillen v. Rydbom, 56 Ill App2d 14, 28, 205 NE2d 813.

The trial court found diversion. There is evidence to support this conclusion, namely: the quantity of water flowing before and after the installation of the street and drain; exhibits indicating construction of homes on the downhill side of the street raising the grade to cause driveway and roof discharge to flow to the street, and the contours of the street itself. A finding of fact made by the trial court without a jury is entitled to great weight. We cannot say an opposite conclusion is clearly evident, or that the determination is palpably erroneous, and hence this portion of the judgment is not against the manifest weight of the evidence. It is not our province to substitute our judgment for that of the trier of the facts. Peet v. Dolese & Shepard Co., 41 Ill App2d 358, 369, 190 NE2d 613.

We therefore find that the trial court erred in dismissing Count I of the complaint as to the defendants, Richard C. Nordlof and Gunvor A. Nordlof, insofar as it related to the question of damages. We affirm the trial court in dismissing Count I as to all defendants therein, other than the Nordlofs, and in dismissing said Count as to the Nordlofs with reference to injunctive relief. We affirm the trial court judgment against the City for damages under Count II.

Reversed and remanded in part, affirmed in part.

DAVIS, P. J. and SEIDENFELD, J., concur.


text:
    Sara E. McCann, Plaintiff-Appellee, v. City of Waukegan, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 66-150.
    Second District.
    June 5, 1967.

      Runyard, Behanna, Conzelman, Schultz & O’Meara, of Waukegan, for appellant.
    Morrison and Nemanich, of Waukegan, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of the 19th Judicial Circuit, Lake County. Sara E. McCann, plaintiff, filed suit against the City of Waukegan, defendant, to recover for personal injuries sustained as a result of falling on a city sidewalk in downtown Waukegan. A jury returned a verdict in favor of plaintiff and judgment was entered thereon. The sole issue in this appeal is whether or not plaintiff was guilty of contributory negligence as a matter of law.

Sara E. McCann, on June 28, 1963, drove her automobile to work in downtown Waukegan. She parked her car in a parking lot off an alley which runs in an easterly direction from County Street. She walked westerly down said alley to a sidewalk on the East side of County Street. She turned South and walked to the Southeast comer of County and Washington Streets. On reaching the corner she turned and walked East on the sidewalk on the North side of Washington Street. After she passed the front of a real estate office located on the corner, she stepped, with her right foot, into a hole in the sidewalk and fell, sustaining severe injuries. The hole into which plaintiff stepped was one of several in this section of the sidewalk. It had been there for some three to four years. She had walked this sidewalk every working day for approximately three years and was well aware of the defective condition of the sidewalk. According to plaintiff’s testimony, the hole into which she stepped was about a depth equal to the height of her low stacked heel. There were no eyewitnesses to the plaintiff’s fall. Her testimony in part is as follows:

“Q. You walked this route five or six times a week for three years prior to the accident, didn’t you?
“A. Every day, the five days that I would be working.”
“Q. And you had knowledge of these holes being in the sidewalk then for about three years?
“A. Yes, sir.”
“Q. Do you recall where you were looking at the time that you fell ?
“A. Straight ahead.
“Q. Pardon me?
“A. I think that I was looking straight ahead.
“Q. So before you fell you didn’t see or look at the hole which caused your fall, did you?
“A. No, I didn’t.”

The following Special Interrogatory was submitted to the Jury:

“Was the Plaintiff at the time of the occurrence in question using ordinary care for her own safety ?”
The jury answered this Interrogatory “Yes.”

The plaintiff was 63 years of age at the time of the occurrence; she had formerly operated a beauty shop but had, for approximately three years, been employed as an assistant and office help to a doctor whose office was a short distance from the scene of the occurrence.

Contributory negligence is nothing more than negligence on the part of the plaintiff and the rules of law applicable to negligence of a defendant are likewise applicable to the contributory negligence of a plaintiff. In general, the question of negligence is one of fact. Village of Clayton v. Brooks, 150 Ill 97, 105, 37 NE 574. The use of a defective sidewalk by a person who has knowledge of the defect is not contributory negligence per se, and if, while walking upon that sidewalk, such person is in the exercise of ordinary care for his or her safety, there may be a recovery. Ordinary care is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Swenson v. City of Rockford, 9 Ill2d 122, 127, 128, 136 NE2d 777.

The defendant, without the citation of any cases, contends that where a pedestrian knows of a dangerous condition of a sidewalk, the degree of care required is greater than that required of a pedestrian without such prior knowledge; and, therefore, must prove some positive or affirmative act of care not required of the ordinarily prudent pedestrian who is without knowledge of the defect. We cannot accept this contention because the element of prior knowledge is only one of a series of circumstances which must be taken into consideration by the jury in reaching its verdict. As we pointed out in Sterba v. First Federal Savings & Loan Ass’n, 77 Ill App2d 380, at p 385, 222 NE2d 547, where the negligence of the plaintiff, if any, has been put to the jury, we cannot say as a matter of law that the thirteen persons, the twelve jurors who heard the evidence and the judge who, having heard the evidence, denied the post-trial motion attacking the verdict were unreasonable in reaching the conclusion that plaintiff was not guilty of contributory negligence. Since, in this case, the defendant put a Special Interrogatory to the jury asking whether plaintiff was contributorily negligent and since the jury specifically found no contributory negligence, we cannot conclude that the jury did not weigh all of the evidence as to whether or not plaintiff in this case acted with the reasonable care that a prudent person ordinarily would exercise under the same circumstances.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: EBERSPACHER, J.

text:
    Orville Powers, Plaintiff-Appellee, v. Richard Kelley, d/b/a Glenda’s 601 Club, Harry Soffer, Clara Soffer and Harry Kelley, d/b/a Kelly’s 722 Tavern, a/k/a Kelley’s, Defendants-Appellants.
    Gen. No. 66-115.
    Fifth District.
    June 6, 1967.

      Strubinger, Burke, Keller & Davis, of Belleville, for appellants.
    Listeman, Bandy & Hamilton, of East St. Louis, for appellee.
   EBERSPACHER, J.

This action was brought by plaintiff, Orville Powers, under section 135, chapter 43, Ill Rev Stats 1963 (Dram Shop Act) for personal injuries allegedly sustained by plaintiff when he was allegedly assaulted by Eddie Arink and another identified as Barney, who had been served alcoholic liquor by defendants causing them to become intoxicated in whole or in part. Defendants admitted owning and operating a tavern but denied that plaintiff had sustained injury as a proximate result of the intoxication of any of their patrons. At the close of plaintiff’s evidence, the court directed a verdict in favor of defendant Harry Kelley, d/b/a Kelly’s 722 Tavern, and no appeal has been taken from that order. The jury rendered a verdict in favor of plaintiff in the amount of $12,000 on which judgment was entered, from which defendants Richard Kelley, d/b/a Glenda’s 601 Club and Harry Soffer and Clara Soffer, owners of the real estate in which the tavern business of Richard Kelley was operated, appeal.

Defendant Richard Kelley, called by plaintiff, testified that he had been acquainted with Eddie Arink for two or three years, and that Eddie Arink and a person identified as Barney were on December 26, 1964, at Glenda’s 601 Club in East St. Louis, for two or three hours during the afternoon, drinking and playing the bowling machine; that while Kelley was eating his supper in a nearby restaurant, a party came from his tavern and advised of trouble there and that upon his return he saw Arink slap the barmaid. Kelley tried to talk to Arink to no avail, so he grabbed Arink and took him to the door when Barney attacked Kelley. The final result was that Kelley ejected both Arink and Barney and told them to stay out. Kelley left the tavern to return to his supper, but was called back later when a shooting occurred.

Plaintiff Powers testified that as it was getting dusk on December 26, he stopped at Richard Kelley’s tavern, was sitting on a stool, and a few minutes after a drink had been served to him, the door opened behind him and someone said, “Is Rich here?”, the barroom became quiet, and the barmaid in a loud, shrill voice said, “He ain’t here.” He then turned on the bar stool, or may have stepped off it, and discovered Eddie Arink and another man standing there, Arink holding a shotgun, the other a rifle; both fired, the shotgun blast striking plaintiff on the left arm and left leg. Powers had known Arink slightly but had never had any trouble with him. On cross-examination, upon being asked whether it stood to reason that an acquaintance would come into a tavern and shoot him down without cause, Powers answered, “I can answer that, yes, sir. His wife came up to the hospital and apologized. She said Eddie was sorry, it was a mistake. That’s all I know.”

A captain of the East St. Louis police department testified on behalf of plaintiff that he was called to the tavern, and was informed by Mr. Kelley and the barmaid “that there had been a shooting and that two men were in the tavern drinking and Kelley told them that they had had enough to drink and for them to go home. Then they argued a little bit and they left, and about a half hour later they came back and stood in the doorway and fired some shots, two shots, in the tavern.” Upon being asked whether he had learned the names of the men who had done the shooting, after refreshing his recollection from his report, he named Eddie Arink and a man named Barney. Referring to his report, the witness had spelled out the name A-r-i-n-k. On cross-examination the captain admitted that he was not sure who had told him of the shooting and the incident of the ejection of the two men and their subsequent return, but that the names of the parties who did the shooting, according to his report, were Eddie Arink and Barney. The captain stated that he did not know “where they are.” On cross-examination, in answer to a question as to whether the parties were apprehended the witness answered that there was a car stopped later that night, in which there was a woman. On redirect he stated that according to his report the occupant of the car was the wife of Eddie Arink.

A patron of the tavern called by plaintiff, testified that he was at the tavern at the time Kelley “had the two boys leave,” and saw Kelley take them to the door; he was also present later when he glanced around and saw two men with guns, heard the shot, but could not say that they were the same two men he had seen ejected earlier.

After the foregoing plaintiff’s witnesses had testified, plaintiff’s counsel sought leave to read the evidence deposition of Eddie Arink, to which objection was made; the objections were heard in chambers. The objections were, first, that a proper foundation had not been laid, showing that the deponent was not available for testimony in person nor amenable to subpoena, second, that there was no showing that the deponent Edward Errink was one and the same person as was referred to by the police captain’s testimony as Eddie Arink. (Other witnesses had not attempted to spell out the name, and it is spelled A-r-i-n-k throughout the record, with the exception of the deposition) and lastly on the ground that defendants were deprived of the right to interrogate the deponent as to the circumstances relating to the shooting at Glenda’s 601 Club by virtue of the fact the deponent refused to answer certain questions on the grounds that the answers might tend to incriminate him; contending that deponent improperly exercised the constitutional privilege, since deponent had previously read and signed a statement concerning his activities on December 26 which was not incriminating. No motion was made to suppress the deposition in advance of trial, nor did defendants move for an order compelling answers, as is provided by Supreme Court Rule 19-12; neither did defendants in the post-trial motion or their brief object to the fact that the deposition had not been filed with the clerk.

The court overruled the objections and permitted the deposition to be read to the jury. Here, defendants urge these objections as grounds for their contention that the trial court erred in admitting into evidence the deposition of Edward Errink. Pursuant to notice, served on defendants’ attorneys, that the evidence deposition of Edward Arink would be taken on October 29, 1965, in St. Louis, Missouri, the evidence deposition of Edward Errink was taken at that time and place, with all parties being represented by counsel. The deponent stated his name to be Edward Errink (so spelled by the reporter, but not spelled out by anyone purporting to know the correct spelling) residing at 3415 Osage, St. Louis, Missouri. He further stated he had known plaintiff for four or five years, had known Richard Kelley a like time, was in Richard Kelley’s tavern for five or six hours on December 26th where he had about 15 highballs, was bowling on a machine for drinks, when he got involved in a fight, and he and Barney were pistol-whipped by Richard Kelley, and that he next remembered being in his car while it was still daylight. Upon being asked whether he returned to the tavern later that day, his personal counsel advised the deponent not to answer and the question was withdrawn. On cross-examination by these defendants’ counsel, the deponent, on the advice of his personal counsel, refused to answer questions as to whether he returned to the tavern, or recalled having been in the tavern later that evening when the shooting occurred.

According to all ordinary rules of pronunciation, the two names “Arink” and “Errink” may be sounded alike, and to us it is clear that under the doctrine of “idem sonans” applied in this case, they should be held to designate the same person, even though spelled differently. Defendants’ attorneys responded to the notice of the taking of the deposition of Edward Arink and were present when the deposition was taken, and at that time did not question the identity of the deponent. From this record we can only conclude that the police captain who spelled the name out, the reporter who took the deposition and the court reporter at the trial heard the same sound but spelled it differently. This is a classic situation for application of the rule — that if a name when pronounced, conveys practically the same sound as the correct name, as correctly pronounced, the misspelling of the name is not a variance and no advantage can be taken of the clerical error. See ILP, Names, § 4.

The guaranty against compulsory incrimination provided by both the Constitution of the United States (Fifth Amendment) and article 2, section 10 of the Constitution of the State of Illinois, is not limited to criminal cases and may be invoked in proceedings of a civil nature. Brown v. U. S., 234 F2d 140, affd 356 US 148, 2 L Ed2d 589; City of Chicago v. Lord, 3 Ill App2d 410, 122 NE2d 439, affd 7 Ill2d 379, 130 NE2d 504. The deponent was not a party to the proceedings, and not under plaintiff’s control. To contend as these defendants do, that Supreme Court Rule 19-12, which provides a remedy for parties aggrieved by the refusal of a deponent to answer, was not available to them because they did not learn of a statement given to another defendant’s attorney until the motion to read the deposition was made, is of little persuasive effect when such statement had been in the hands of one of the defendants in the suit during the preparation for trial; and while the statement might be said to impeach the deponent’s refusal to answer certain questions, it did not impeach any testimony, and was properly denied admission.

Prior to the adoption of the present Rule, 101.-19-10, (c 110, § 101.19-10, Ill Rev Stats 1963), the law with reference to admitting into evidence a deposition, was provided by chapter 51 of the Elinois Revised Statutes, pertaining to evidence and depositions. The leading case of Jacobs v. Mutual Life Ins. Co., 341 Ill App 293, 93 NE2d 516, had held that whether or not a deposition should be allowed into evidence at the trial of a matter depended upon the status of the deponent at the time of the taking of the deposition. As is pointed out in the Historical and Practice Notes following Rule 19-10 in the Hlinois Annotated Statutes, subsection (3) of the rule altered the prior rule, to now provide that the test of the deponent’s status is applied at the time of trial. Here the court was advised by statement of counsel, and it was shown by the deposition itself, that the deponent resided in St. Louis, Missouri, on the date it was taken, October 29, 1965, almost six months before the trial. The presumption of continuation of residence is well known in the law — residence once established is presumed to continue until the contrary is shown. In re Mc-Calmont, 16 Ill App2d 246, 148 NE2d 23; People v. Estate of Robert Moir, 207 Ill 180, 69 NE 905; In re Estate of Dedmore, 257 Ill App 519; in each of these cases the court held that there is a presumption of continued residence, and the burden of proof to show a change of residence is upon the party asserting such change. The showing of residence of the deponent outside St. Clair County, and in fact outside the State, raised the presumption of continuance of residence in Missouri, and as a resident of Missouri the deponent was not amenable to subpoena. C 110, § 62, Ill Rev Stats 1963.

On this point appellants contend that John v. Tribune Co., 28 Ill App2d 300, 171 NE2d 432, is in point. There the deponent had been a resident of the city of Chicago, and an employee of the attorneys for the defendant testified that he attempted to serve the deponent with a subpoena the day before commencement of the trial, but did not find her at the place where she had previously been arrested. Another witness testified that deponent’s attorneys advised she was living in Wisconsin, but no effort was made to locate her there. The court permitted the deposition to be read, and the Appellate Court held the deposition was improperly admitted because of a lack of a showing that the attendance of the absent witness could not have been procured by the use of reasonable diligence. In the present case, no such showing was necessary in view of the presumption of continued residence in Missouri, and deponent’s not being amenable to summons. Had there been a showing that deponent had resided in St. Clair County in the present case, it would have become incumbent upon plaintiff to have made a showing, upon which the court could have based a finding; but with the presumption of continued residence in Missouri and appellants’ failure to overcome the presumption, we cannot say that the court abused its discretion in admitting the deposition. That the court failed to enter a specific finding, but ruled “I will let it in” and overruled defendants’ objections, after hearing the arguments and being fully advised, does not vitiate the ruling, although the court may have failed to make the specific finding which appellants urge the rule contemplates.

An examination of the record convinces us that the court properly denied defendants’ motions for directed verdict, and that the verdict was not against the manifest weight of the evidence. The testimony that plaintiff Powers and Arink had never had a cross word, and the fact that numerous witnesses for defendant as well as Kelley testified they did not know what Arink was drinking, does not restrict the jury to the inference that his drinks were nonalcoholic — particularly when Kelley has testified that he ejected Arink and Barney because they were slapping the barmaid and admitted that he told them he “wouldn’t serve them any more, it was time to go home.” The jury, from their own experience, had probably never known of a tavern keeper ejecting a patron, or refusing to serve him, because he had overindulged in nonalcoholic beverages, or slapping the barmaid as a result of the effervescence of soda pop.

Contending that the verdict is excessive upon the evidence and clearly the result of prejudice and passion on the part of the jury, appellants point out that plaintiff admitted a preexisting injury to his little finger, and has made an excellent recovery and although there was testimony that plaintiff had lost function in his hand, he is still able to engage in the carpenter trade at no loss of income, and that his leg injury has not hampered his employment. With reference to plaintiff’s injuries, plaintiff’s doctor testified that his diagnosis was multiple gunshot wounds to the left forearm and left knee; that the knee was pretty well riddled but the fracture to the knee was not nearly so severe as he had anticipated; that he felt the atrophy of the left forearm was due to an injury to the nerves that supplied portions of two fingers and his thumb. Plaintiff was hospitalized 28 days, there were 6 pellet marks on his arm, and more than a hundred on his leg. Plaintiff testified that he was unable to work for 4% months, and had been working regularly as a carpenter earning $4.57% per hour; that when he returned to work the hourly rate was $4.67%; that he was now unable to carry out all the duties of his carpentry work, required assistance and was unable to climb; that at the time of trial, 2 or 3 fingers of his left hand were still numb and his leg was still swelling and was not trustworthy; that his leg had bothered him continuously since he was shot, and hurt him at the time of trial; that it tires easily and when tired causes him to limp, and that he has missed 12 days’ work since returning to rest his leg. There was ample evidence of pain and suffering, atrophy and numbness of the arm and fingers, disfigurement and injury to the leg; the lost wages amounted to approximately $3,294, a hospital bill of $568.30, the doctor bill was not put into evidence. While reasonable men might differ on the amount to be allowed for pain and suffering, or the future effect on his earnings, we cannot say that the jury was moved by passion or prejudice, and we find no basis to depart from the usual rule that the assessment of damages is the preeminent function of the jury.

We therefore affirm the judgment of the Circuit Court of St. Clair County.

Affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       The pertinent parts of which are: “(1) In General. — Any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or to whom due notice thereof was served, in accordance with any of the following provisions.
      “(2) ...
      “(3) Evidence Depositions. — (a) All or any part of any evidence deposition may be used for any purpose for which a discovery deposition may be used, (b) All or any part of an evidence deposition, whether or not the deponent is a party may be used for any purpose if the court finds that at the time of trial: (i) the deponent is dead; or (ii) the deponent is out of the county, unless it appears that the absence of the deponent was procured by the party offering the deposition;

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