author: Mr. JUSTICE THOMAS J. MORAN

text:
    Richard McKasson, Plaintiff-Appellee, v. Zimmer Manufacturing Company et al., Defendants-Appellants.
    (No. 72-62;
    Second District
    June 8, 1973.

      Rehearing denied July 26, 1973.

      Lord, Bissell & Brook, of Chicago, for appellants.
    Maynard & Brassfield, of Rockford, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This products liability action was initiated against the manufacturer and distributor of a certain surgical pin known as a Schneider intramedul-lary rod. Injuries were allegedly sustained due to a break in one of defendants’ rods which had been implanted in plaintiffs left femur. The jury awarded plaintiff a verdict of $175,000 and defendants appeal from the judgment entered thereon.

Defendants seek reversal based upon the following averred errors: (1) absence of evidence of a manufacturing defect in the rod which could have caused it to break; (2) the trial court’s refusal of an instruction on misuse, and its allowing argument by plaintiff’s counsel as if misuse was not an issue; (3) the court’s rejection of defendants’ evidence on testing methods; (4) newspaper accounts having been read by three jurors; (5) prejudicial remarks by plaintiffs counsel during closing argument; (6) giving of an instruction regarding plaintiffs right to recover for disability and disfigurement, and argument by plaintiff’s counsel for such damages; (7) testimony by plaintiff that he had a wife and three children; (8) excessiveness of the verdict; (9) the cumulative effect of errors.

The stainless steel rod in question is designed for insertion into a fractured bone to provide support and stabilization during the healing process. On October 27, 1965, plaintiff underwent surgery to repair a comminuted fracture of the left femur; a rod was employed to hold the bone fragments in proper alignment.

Plaintiff remained in a wheel chair for approximately six months after surgery, and was then permitted to place partial weight on the affected leg, first while using a single crutch and, later, a cane. In August, 1966, still using a cane, plaintiff returned to work on a part time basis. X-rays taken throughout this period, including one taken on January 25, 1967, disclosed progressive healing of the fracture (although not complete union), and showed the rod in proper position. A March 21, 1967, x-ray, however, revealed a break in the rod which, according to one of the doctors, had probably occurred several days earlier.

Plaintiff was referred to another doctor who advised additional surgical intervention to promote the healing process which had been disrupted -by the breaking of the intramedullary rod. Plaintiff underwent a second surgery on the left femur on May 3, 1967. A Phemister barrel stave operation, a type of bone graft, was performed. For some time thereafter it seemed that the operation had been successful but, after about eight months, the healing process seemed to have slowed. It was determined that the bone was not mending properly, due, at least in part, to the presence of excessive scar tissue.

In July, 1968, plaintiff went under the care of a third orthopedic surgeon who performed a compression plate operation on September 20, 1968. After that operation, plaintiff was first restricted to a wheel chair, graduated to crutches, then to one crutch until April 29, 1969, when the doctor, having determined that the fracture was solidly healed, permitted plaintiff to walk without crutch support.

I. Evidence of Defect

Defendants contend that the trial court erred in failing to direct a verdict in their favor claiming there was no evidence that the break in the rod was caused by a defect in its manufacture, arguing that all of plaintiff’s witnesses agreed with defendants’ own expert that the rod broke as a result of fatigue failure. (Fatigue failure is the result of metal being subjected to alternate loading in excess of its endurance limit).

Plaintiff’s evidence on this issue consisted of the testimony of two metallurgists and a mechanical engineer. The metallurgists’ analyses revealed the presence of various imperfections in the rod, including a small crack about a quarter-inch from the break, pitting on its surface, and inclusions (foreign objects in the steel). Their testimony indicated that any of these imperfections could have existed at the time the rod left the manufacturer; that their presence could initiate a crack in the metal and create areas ■ of stress concentration, weakening the metal so that fatigue failure would occur at a stage considerably below the ordinarily anticipated endurance level. It was the opinion of both metallurgists that, if the rod was properly designed for implant in the human body and not bent prior to use, the failure'resulted from á defect which existed at the time of manufacture. The mechanical engineer took measurements of the rod and of plaintiff, ascertained weight distribution and determined stress placed upon the rod in walking and in rising from a sitting position. Given the tensile strength of the rod and its endurance limit, the rod, in his opinion, could not have fractured unless a defect existed.

Defendants’ expert, qualified both in the fields of metallurgy and mechanical engineering, testified that fracture of the rod occurred as a result of fatigue failure. His extensive research in the field of implants had shown that because maximum stress occurs at the point of non-union of the bone, fatigue failure of the implant commonly occurs at that same point. It was this witness’ opinion that the computations of plaintiff’s expert were inaccurate because, in determining the endurance limit of the implanted rod, consideration had not been afforded the additional stresses brought by muscle pull which, in his experience, can surpass the stresses of bodily weight. He further testified that no defect existed in the rod, its failure, rather, resulting from the stress of a cyclic load over an extended period of time in the area of non-union of the bone.

The testimony, thus summarized, does show (in accordance with defendants’ argument) that all experts agreed that the rod ultimately broke as the result of fatigue failure. This mutual conclusion, however, fails to obviate the disparity of opinion over the very cause of this particular fatigue failure. Plaintiff’s witnesses contend that the failure was due to defect, defendants’ witness, that it was due to undue stress. These opposing theories merely presented a question of fact for the jury’s determination.

Under the rule of Suvada v. White Motor Co., 32 Ill. 2d 612, 623 (1965), a plaintiff in a strict liability action must prove an injury resulting from an unreasonably dangerous condition of the product which existed at the time it left the manufacturer’s control. (Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill. 2d 339, 342 (1969).) Since there was sufficient evidence to substantiate the presence of defects at the time the rod was analyzed and since evidence also supported the conclusion that defects contribute to fatigue failure, the jury could infer that the defects were present at the time of manufacture and that, in the instant case, the failure occurred as a direct result. The evidence defeats defendants’ contention that they were entitled to a directed verdict. See, Spotz v. Up-Right, Inc., 3 HI.App.3d 1065, 1073 (1972); Taylor v. The Carborundum Co., 107 Ill.App.2d 12, 19-20 (1969); Sweeney v. Matthews, 95 Ill.App.2d 6, 14-16 (1968), aff’d. 46 Ill.2d 64 (1970).

II. Misuse Defense

Defendants assert error in the refusal of their tendered instruction which, in relevant part, directed the jury to find for defendants if “plaintiff failed to follow the instructions of his doctor as to the use and function of an intramedullary rod #

The rule is that misuse is a valid defense to an action based upon strict liability. (Williams v. Brown Mfg. Co., 45 Ill.2d 418, 425 (1970).) There is also a rule that it is not error for a court to refuse an instruction when there is no evidentiary basis for that instruction. (Woods v. C., B. & Q. R.R. Co., 306 Ill. 217, 221 (1923); Darby v. Checker Co., 6 Ill.App.3d 188, 196 (1972); Elliston v. Hunsinger, 8 Ill. App.3d 1068, 1070 (1972).) In the present case, there was no evidence that the doctor ever spoke to plaintiff concerning the rod; his instructions merely directed the use of caution with respect to the degree of weight to be put on the leg, a caution which, evidence indicates, plaintiff heeded.

Having found no evidence in the record on which an instruction on misuse could have been based, it necessarily follows that there was no error in argument by plaintiff*s counsel to the same effect.

III. Testing Methods

Defendants attempted to introduce evidence to establish that each rod, before leaving the factory, was subjected to a test for defects. This evidence was refused by the trial court. Defendants assert that this evidence was particularly important in light of plaintiff’s evidence that a similar test was used to detect cracks in the rod after its removal from plaintiff’s leg.

Defendants cite cases from other jurisdictions which allow evidence of such testing methods but, under Illinois law, such evidence is not admissible in strict liability cases. (Cunningham v. MacNeal Memorial Hosp., 47 Ill.2d 443 (1970); Taylor v. Carborundum Co., supra, at pp. 25-26.) The rationale of those decisions is that evidence of such testing is probative of the degree of care exercised by the manufacturer, an appropriate issue in an ordinary negligence action, but irrelevant in an action based upon the theory of strict liability.

IV. Newspaper Accounts

Defendants complain that local newspaper articles evidenced prejudicial inaccuracies. In restating the testimony of plaintiff’s two metallurgists, the news articles reported: the rod was inserted “to replace part of the femur,” whereas it was merely supportive; that the experts testified to the rod having “snapped,” that it was “too brittle,” and “not of the quality necessary for replacing a large supportive structure,” while these words were not used in testimony; and that “the dye penetrant test showed defects in the rod,” whereas the test merely showed a crack, not other defects.

On the morning following publication of the articles, defendants brought them to the attention of the court and moved for a mistrial. The judge inquired whether any of the jurors had read the items; upon ascertaining that three had, and directing itself to those three, the court asked whether they could try the case solely on the evidence heard in the courtroom, absolutely disregarding the newspaper stories. All three jurors replied in the affirmative and the court admonished them in this manner:

“All right. We are in a situation where the Court is trying to protect the case, and I know you wouldn’t try any case * * # based on what you read in any publication.”

The trial then proceeded.

Defendants first contend the articles were so inherently prejudicial that a mistrial should have been declared whether or not the jury members admitted seeing them.

It is primarily the duty of the trial court, in the exercise of its discretion, to determine whether publication of allegedly prejudicial statements has interfered with the right to a fair trial. The most important consideration in this determination is the character of the prejudicial material. (People v. Keegan, 52 Ill.2d 147, 155 (1971), cert. den., 406 U.S. 964, 32 L. Ed. 2d 663, 92 S. Ct. 2408 (1972).) The present case is not one in which facts not in evidence were brought to the jury’s attention through a newspaper article. Rather, these reports summarized facts already in evidence, and we are not persuaded that the. accounts were grossly inaccurate. The descriptions of the rod as brittle, having snapped, and being of inadequate quality, were attempts to report the expert testimony in layman’s terms. That the rod was • incorrectly described as a bone replacement, and the dye penetrant test mistakenly identified as the means by which all defects were detected, did not prejudice defendants’ case since, as noted by the trial court, a juror would be able to recognize the difference between a reporter’s version of the facts and those presented in court. The court did not abuse its discretion in denying the motion for mistrial.

Defendants also contend that the trial court failed to conduct a meaningful examination of the jurors who had read the articles. As authority, defendants cite People v. Cain, 36 Ill.2d 589 (1967), where the Supreme Court, noting the unquestionably prejudicial nature of the newspaper accounts there involved, held that the trial court had not taken adequate steps to protect defendant’s rights. In the instant case, unlike Cain, the interrogation of the jurors by the judge was fair. The court objectively questioned the jurors on whether they had been affected by the articles, did not attempt to elicit particular responses, admonished the jurors not to try the case based on anything read in publications, and properly instructed the jury to decide the case from evidence produced in open court. We find no abuse of discretion in the court’s handling of this matter. See, People v. Malmenato, 14 Ill.2d 52, 63-65 (1958), cert. den., 358 U.S. 899, 3 L. Ed. 2d 148, 79 S. Ct. 222 (1958); People v. Yocum, 122 Ill.App.2d 126, 134-136 (1970).

V. Statements by Plaintiff’s Counsel, in Closing Argument

Defendants first assert that plaintiffs attorney was allowed to convey to the jury the impression that it would not be deciding the case unless the court felt there was sufficient evidence to support plaintiffs position.

In closing argument, defendants’ attorney stated that there was no evidence to support plaintiffs claim of rod defect. In rebuttal, plaintiffs counsel remarked, “If that were true, you wouldn’t even be deciding the case.” The defense objected, and the judge stated, “* # * the Court cannot comment on the evidence and the jury will have to determine what was said during the course of this trial and in the arguments.”

Defendants bring to our attention decisions of other jurisdictions, disapproving a counsel’s representation of the court’s opinion to the jury, e.g., Sanchez v. Stremel, 95 Ariz. 392, 391 P.2d 557 (S.Ct.Ariz. 1964); Tucker v. Newth, 157 S.W. 2d 1010 (Ct. of Civ. Apps. of Tex., 1941); McGowan v. Wells, 24 S.W. 2d 633 (S. Ct. Mo., 1929). We do not reach the question of the appropriateness of the law cited, since we do not view the remark of plaintiff’s attorney as being a representation of the court’s opinion, but merely an. assertion of disagreement with defendants’ argument that there was no evidence of the existence óf a defect. The court’s response to the objection clearly stated that it held no: opinion on the evidence. In the context of the complete arguments, we cannot conclude that the jury could in any way interpret the remarks of plaintiffs counsel as being reflective of the court’s opinion of the evidence.

, Defendants allege that plaintiff’s attorney repeatedly misrepresented the burden of proof in a products liability action, pointing to three sections of argument wherein, they contend, counsel indicated plaintiff merely had to show that the rod broke and injury resulted.

Having reviewed the closing arguments, we find no merit in defendants’ contention. From the context of the arguments, it was clear to the jury that plaintiff had the burden of proving both that the rod was defective at the time it left the manufacturer’s control, and that the defect resulted in plaintiff’s injury. The jury was correctly instructed as to the burden of proof and the proper elements necessary to establish an action for strict liability.

VI. Issue of Disability and Disfigurement

Defendants assert that evidence failed to establish that plaintiff’s disability and disfigurement resulted from the break in the intramedul-lary rod rather than from the original femur fracture or its failure to heal properly. They argue error in the court’s instruction to the jury that plaintiff could recover for disability and disfigurement, and in the court allowing plaintiff’s attorney to argue this element of damages in his closing argument.

X-rays taken from the time following the first operation until the time just prior to the breaking of the rod, indicated that progressive healing of the fractured femur had taken place. Uncontradicted was plaintiff’s testimony that, after the third operation, it was prescribed that the shoe for his left foot be built up approximately two inches, and that at no time prior to the breaking of the rod and the subsequent surgery was he required to wear a built-up shoe. Surgeons who performed the two operations subsequent to the breaking of the rod, testified that it was necessary to cut down or remove portions of the bone for the purpose of bone grafting. The surgeon who performed the last operation explained that he usually takes bone grafts from the same side he is repairing so as not to cripple both legs.

We hold that there was sufficient evidence from which the jury could infer that plaintiff suffered a two-inch shortening of his left leg as a result of bone grafting during the second and third operations and that these operations were necessitated by the breaking of the rod rather than by improper healing of the fractured femur. There is no question but that a two-inch shortening of the leg constitutes “disability and disfigurement.” We conclude that it was not error to argue or to instruct on this point.

VII. Evidence of Domestic Circumstances

Defendants complain of two segments of plaintiff’s testimony which related to his family.

On direct examination, plaintiff was asked if he were married at the time he returned home after the initial surgery. He answered affirmatively, and was then asked his wife’s name, which he gave. The defense did not object. He was next asked how many children he had and, at that point, an objection was entered. The court asked if counsel wanted to be heard in chambers, but defense declined. The court then overruled the objection and plaintiff replied that he had three children.

The rule is that evidence of marriage and number of dependents is irrelevant in a suit for personal injuries. If there has been undue emphasis, if it appears the trial court abused its discretion, or if the jury has been affected by such evidence, reversal will result. (Payne v. Noles, 5 Ill.App.3d 433, 438 (1972); Walsh v. Dream Builders, Inc., 129 Ill.App.2d 280, 293 (1970); Brayfield v. Johnson, 62 Ill.App.2d 59, 64-65 (1965).) In the present case, there was no objection to plaintiffs testimony regarding the fact that he was married, and defendants are precluded from raising the issue on appeal. Although defendants did object to testimony regarding the number of plaintiffs children, they refused the court’s invitation to be heard on the matter in chambers. This evidence was presented at an early stage of the trial when the court could not determine what relevancy it might have, yet the defense refused to explain its position. Under these circumstances, the court did not abuse its discretion in overruling the objection, and it cannot be said that the evidence was unduly emphasized so as to arouse the sympathies of the jury.

Defendants assert that certain testimony, elicited during direct examination of plaintiff, magnified the prejudice resulting from the evidence of his domestic circumstances.

In answer to his attorney’s question regarding a certain incident, plaintiff began to answer, “My wife collapsed * * *” At that point, responding to defense’s indicated request, the court directed counsel to be heard in chambers. Plaintiff’s attorney explained that he wanted to show that plaintiff had remained helpless in his wheel chair although his wife had collapsed before him; that this information was for the purpose of establishing his client’s credibility in light of certain implications, made during defense’s cross-examination, that plaintiff had indiscriminately walked on his leg without supportive aid. Stating that the prejudicial impact of the testimony tended to outweigh its probative value, the court sustained the objection. No request was made to have the jury disregard the remark. Despite the court’s sustained objection, it is argued that the utterance was of such a nature as to prejudice the jury. We find no merit to this claim.

VIII. Excessiveness of Verdict

It is contended that the amount of the verdict ($175,000) was the result of the jury’s emotions — sympathy for the plaintiff and prejudice against defendants. In support of this claim, defendants first compare the special damages proved (approximately $16,000) with the jury’s award, and then argue that plaintiff’s evidence as to pain and suffering was insufficient to sustain the difference. Because of their former contention, they do not include the element of disability or disfigurement resulting from the injury.

The issue of damages is to be resolved by the jury and its determination will not be upset unless so excessive as to indicate it was influenced by passion or prejudice. (Lau v. West Towns Bus Co., 16 Ill.2d 442, 453 (1959).) The test of excessiveness, however, cannot be solely a comparison between the verdict and the special damages incurred; each verdict must be examined both with regard to the injury involved and with deference to the jury’s discretion. Lau v. West Towns Bus Co., supra.

A review of the evidence herein shows that, at the time of trial, plaintiff was a thirty-four year old man who, as a result of the breaking of the intramedullary rod, incurred various medical expenses and loss of salary; that he was subjected to two additional operations on his injured leg with attendant pain; that he suffered permanent shortening of his leg resulting in disability and disfigurement. The jury could also consider the special effect which this disability might have on this particular plaintiff who, at some time prior, had lost an arm. (See, Noncek v. Ram Tool Corp., 129 Ill.App.2d 320, 331 (1970); Parnham v. Carl W. Linder Co., 36 Ill.App.2d 224, 236 (1962).) Having reviewed the record, we are not prepared to say that the verdict was excessive. See, Lau v. West Town Bus Co., supra; Fortner v. McDermott, 1 Ill.App. 3d 358, 368-370 (1971); Stephenson v. Air Products & Chemicals, Inc., 114 Ill.App.2d 124, 138 (1969); Blyzes v. Midwest Towing Co., Inc., 109 Ill.App.2d 48, 55-56 (1969).

Due to the conclusions already reached, we find it unnecessary to respond to defendants’ last assigned error.

For the reasons stated herein, the judgment of the trial court is affirmed.

Judgment affirmed.

GUILD, P. J., and SWANSON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Overturf, Defendant-Appellant.
    (No. 11861;
    Fourth District
    June 27, 1973.

      Linda West Conley, of Defender Project, and Brian David, Senior Law Student, both of Chicago, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Walter H. Kasten, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-Appellant Donald Overturf and one Harold Davis, on February 10, 1971, were indicted for the offense of burglary allegedly committed in the early morning hours of January 4, 1971, at the Romany Club in Springfield, Illinois. Trial was originally set for April 19, 1971. When the case was called for trial, Overturf did not appear and it was subsequently ascertained that he had violated the conditions of his bail-bond and had fled the jurisdiction, going to the State of Georgia. On April 19, 1971, Davis entered a plea of guilty and was sentenced to one year at the State Penal Farm at Vandalia. Some five months later, Over-turf returned and surrendered himself to Illinois authorities, pleaded guilty to the bail jumping charge and was sentenced to Illinois State Penitentiary for an indeterminate term of one to three years. Overturf was then tried before a jury on the burglary charge on November 29, 1971; he was.found guilty and sentenced to a term of one to ten years in the penitentiary, which sentence was ordered to run concurrently with the sentence imposed in the bail jumping charge. He appeals from the burglary conviction in this case..

Defendant’s first contention is that the evidence did not establish his guilt beyond a reasonable doubt, and the nexus of this argument involves the identification of the defendant at the scene of the burglary.

The witness Hodson lived in an apartment above the Romany Club. At about 2:20 A.M., on the morning in question, he was awakened by the sound of breaking glass. Hodson looked out the alley window of his apartment and saw Harold Davis, whom he knew, standing in the alley. Hodson shouted to Davis saying, “* * * what’s going on out there?” Davis ran around the corner and another individual jumped out of a window of the Romany Club and ran around the corner too. Hodson never saw this latter individual’s face. He observed that the individual was wearing a tan corduroy coat. The police were immediately called and Officer Dodson of the Springfield police department recorded the call at 2:24 A.M. Dodson called Detective Young who received the call at approximately 2:25 or 2:30 A.M. Detective Young and Detective Meadows went immediately to the Romany Club, found a broken window, observed that there had been an attempt to pry the front door open and inside the tavern found a pry bar, a screwdriver, and a pulled out drawer. Officer Meadows remained in the squad car to receive any additional information which would be relayed to the officers. He started driving, checking the area and saw two men running. He radioed that information to the other squad cars in the area. Officer Gordon Anderson also went to the area and saw two subjects running east towards Sixth Street. He described one of them as being tall, and the shorter of the two as wearing a tan colored coat. He shouted for the subjects to halt and when they failed to do so, he informed other officers in the area that the two subjects were running east on Adams Street and then south on Sixth Street. He gave chase together with Officer Bryant. Officer Bryant testified that the two subjects were running south on Sixth Street when he observed them, and while they were running south the individual who subsequently was identified as the defendant Overturf ran into an alley. Bryant ordered Davis to halt and when he failed to do so, Bryant fired a warning shot at which time Davis halted and put his hands up against the building. Bryant then ran into the alley after Over-turf, fired two warning shots and directed Overturf to halt. Overturf kept running and Bryant then shot him in the left leg. The witness Hodson then went to the scene where he saw an ambulance and saw Overturf lying on a stretcher wearing a coat identical to the one he had seen on Davis’ companion. The tan corduroy coat was admitted into evidence as Peoples’ Exhibit No. 12, and was identified by Hodson as either the jacket, or one identical to the jacket, worn by the individual whom he had seen jump from the window at the Romany Club.

Defendant testified in his own behalf and the record establishes that Overturf and Davis were acquaintances and had been together at 1:30 A.M., on the morning in question. Defendant’s version was that he was with one Claire Moffett. At 2:20 A.M., he left his apartment to obtain some sandwiches at the Toddle House on Ninth Street. He noticed a policeman getting out of a squad car some distance away and stepped in a doorway because “I was afraid that something would happen similar to what did * * * It was on my mind I would be framed.” According to the defendant’s testimony he then left the doorway and proceeded towards Sixth Street when Harold Davis jumped in front of him and defendant began running south on Sixth Street. He testified that he began running because he thought he was in the wrong place at the wrong time or that a gang war was going on. Claire Moffett testified that at 2:20 A.M., on the morning in question, the defendant left her presence to obtain sandwiches. She testified that she and defendant had seen Harold Davis earlier during the morning in question. The jury chose not to believe this version of the incident.

If the evidence of identification is vague, and uncertain it cannot support a conviction. People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232; People v. Coulson, 13 Ill.2d 290, 149 N.E.2d 96.

If the only evidence tending to connect defendant with the burglary was Hodson’s testimony, that he saw a man jump from the Romany Club while wearing a jacket similar to a jacket owned or possessed by the defendant, the reasonable doubt argument here advanced would have merit. However, there is abundant circumstantial evidence which, together with Hodson’s testimony, supports the conviction. The defendant was found in the immediate area of the crime within minutes after the crime had been committed. He was fleeing with Davis whom Hodson had positively identified at the scene of the crime, and he was wearing a jacket identical to that observed by Hodson. He persisted in his flight after warning shots were fired by the officers; he and Davis were admittedly acquaintances and the evidence establishes that the two were together less than an hour prior to the incident.

People v. Kincy, 72 Ill.App.2d 419, 219 N.E.2d 662, and People v. Reed, 103 Ill.App.2d 342, 243 N.E.2d 628, involve situations in which identifications were made on the basis of articles of clothing allegedly worn by the defendants at the time of the offenses in question. In both cases convictions were reversed because of insufficient identification. In our view, Kincy and Reed are distinguishable because in neither of those cases was there corroborating evidence such as the attendant circumstances here present and above noted.

Defendant next urges that the trial court erred in allowing proof of a prior burglary conviction. The defendant was convicted of burglary in 1958 in Woodford County, Illinois. He was granted probation which he violated. Probation was revoked and he was sentenced to the penitentiary for two to eight years. He was released from prison om that sentence in January 1962. In People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, the Supreme Court held that proof of prior convictions for purposes of impeachment was to be governed by Rule 609 adopted by the committee on rules of practice and procedure of the judicial conference of the United States. Sub-par. (b) of the Rule provides that: “Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from confinement, whichever is the latter date.” (Emphasis supplied.) Defendant’s release in January 1962, was within ten years of the date of his trial and therefore within the time limits imposed in Montgomery. The Rule provides that the prior conviction may be shown if it involved dishonesty, and leaves the decision to the discretion of the trial judge as to whether or not the conviction is to be admitted. Montgomery also quotes Chief Justice Rurger who stated in Gordon v. United States, 383 F.2d 936, that the various factors to be considered in the exercise of the discretion was the nature of the crime, the subsequent career of the person and whether the crime was similar to the one charged. The admission by the trial judge of defendant’s prior conviction meets the standards set forth in Montgomery and it was not error.

■ Lastly, defendant contends that the ten year maximum of his sentence is excessive. In view of defendant’s prior felony conviction, and his violation of probation we see no merit to this contention. See People v. Newberry, 1 Ill.App.3d 251, 273 N.E.2d 205.

Judgment affirmed.

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


text:
    Robert Pence, Plaintiff-Appellant, v. The Village of Rantoul, Defendant-Appellee.
    (No. 12083;
    Fourth District
    June 27, 1973.

      Charles W. Hendrix, of Champaign, for appellant.
    Robert E. Turnbow, of Rantoul, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On March 8, 1971, the plaintiff (operator of a drug store in Rantoul, Illinois) applied for a Class A liquor license from ,the Village of Ran-toul; he included the required license fee in accordance with Village Ordinance No. 691. The village president and board of trustees on May 18, 1971, denied the application and returned plaintiff’s cashier’s check on the grounds that all twelve Class A liquor licenses were taken. At a later time, a Class A liquor license was relinquished. On January 12, 1972, while the license was available, plaintiff by letter requested a meeting with the board of trustees to present a petition for a license. No license fee was included with that letter.

On February 8, 1972, the village authorities adopted Ordinance No. 705 consisting of two sections which amended Ordinance No. 691. Section I provided that henceforth no liquor licenses of any class should be issued to any establishment whose principal business was the sale of groceries, drugs or general merchandise. Section II reduced the number of Class A liquor licenses from twelve to eleven — thus, ehminating the unissued license. Therefore both sections of the new ordinance precluded the plaintiff from acquiring the license he sought.

On April 20, 1972, plaintiff filed a complaint seeking judicial review of the action of the defendant in passing the ordinance, alleging that his application for a Class A liquor license presented on March 8, 1971, was still on file. Plaintiff asserted that he complied with all of the requirements in existence before the new ordinance and that it consisted of special legislation, directed specifically against him and not applied equally and uniformly to all persons similarly situated and therefore was contrary to both state and federal constitutions. Plaintiff further contended that the Rantoul ordinance classifying liquor licenses violated Illinois Revised Statutes, chapter 43, paragraph 110, by failing to include a classification for the sale of alcoholic liquor for consumption off the premises.

Defendant filed a motion to dismiss the complaint on May 19, 1972, alleging (1) the court lacked jurisdiction and the proper remedy was appeal to the Liquor Control Commission;, (2) the complaint failed to state a cause of action; (3) the complaint did not state any recognized grounds for the relief requested; and (4) all necessary parties were not named. The defendant’s motion to dismiss was heard and allowed on June 27, 1972. After his oral motion for leave to file an amended complaint was granted on July 14,. 1972, the plaintiff on August 14, 1972, filed a motion electing to stand on his earlier complaint which had been dismissed and asked that the court enter a final appealable order. Such an order was entered on September 8, 1972.

The defendant’s motion gave four reasons why plaintiff’s complaint should be dismissed. On appeal, the plaintiff contends that defendant’s motion was insufficient because it did not specify the defects in the plaintiff’s complaint as required by Illinois Revised Statutes, chapter 110, paragraph 45, then arguing that all defects in pleadings which were not objected to at the trial court are waived so that the defendant cannot now more specifically attack the complaint. The defendant contends that the plaintiff cannot complain about the insufficiency of the defendant’s motion on appeal because he did not do so at the trial level. So, defendant also relies on chapter 110, paragraph 42, asserting that a motion is a pleading and all defects in form or substance not objected to at the trial level are waived.

A motion is a pleading and section 42(3) of the Civil Practice Act states that all defects in form or substance not objected to in the trial are waived. (Chimerofsky v. School District Number 63, 121 Ill. App.2d 371, 257 N.E.2d 480.) Courts have followed that rule and sustained motions to dismiss when no objection as to the form of the motion was made at the trial court. (Bohan v. Village of Riverside, 9 Ill.2d 561, 138 N.E.2d 487.) In that case, the plaintiff relied on section 45 of the Civil Practice Act in arguing that the defendant’s motion for judgment on the pleadings did not specifically point out the defects complained of. The supreme court said that even if the motion’s form was questionable, it could have been corrected if a timely objection specifying the grounds had been made at the trial court and that the objection in the form of the motion would not be considered when first raised on appeal. In the instant case, at the hearing of June 27, 1972, plaintiff stated to the trial court that the 2d, 3d and 4th paragraphs of defendant’s motion to dismiss and strike the complaint failed to comply with section 45 of the Civil Practice Act. Here, as in Bohan supra, defendant’s motion was not artfully drawn and lacked specific detail. Plaintiff’s objections to the motion, however, were equally vague, and the record clearly demonstrates that both sides knew why they were in court, and precisely what issues were raised by the motion. We therefore find no merit in plaintiff’s contention that the motion was insufficient.

Illinois Revised Statutes, chapter 43, paragraph 110, gives • every city, village and incorporated town authority by way of general ordinance or resolution to determine the number, kind and classification of licenses for the sale of alcoholic beverages consistent with the statute. The municipalities are also there given authority to establish other regulations and restrictions upon the issuance of and operations under the local licenses consistent with the law pursuant to the public good and convenience.

The courts have the power to review the question of the validity of municipal ordinances and to declare an ordinance void where it is not within the powers delegated to the municipal corporation by the state. (Catholic Bishop of Chicago v. Village, of Palos Park, 286 Ill. 400, 121 N.E. 561.) However, courts will not lightly set aside an ordinance as being invalid but will only do so where it is clearly arbitrary or an unfair exercise of power. (Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326.) As a general rule, in determining the validity of a municipal ordinance, the court is not concerned with and has no jurisdiction to inquire into the motives or to determine the propriety of the policy which prompted the enactment of the ordinance. (Deerfield Park District v. Development Corp., 22 Ill.2d 132, 174 N.E.2d 850.) Once it is determined that there is competent authority for the passage of an ordinance, the presumption is always in favor of its validity. Hartman v. Aurora Sanitary Dist., 23 Ill.2d 109, 177 N.E.2d 214.

One of the plaintiffs arguments seems to be that since his original application for a liquor license was still on file, he had some vested right which the municipality could not terminate summarily. However, the regulation and restriction of the selling of alcoholic beverages is a legitimate exercise of the police power. Neither possession of a license nor an application for a license to sell liquor creates a contract or vested right, but rather such a license is merely a temporary permit to do something which otherwise would be unlawful. Municipalities have the continuing authority to pass ordinances limiting the number of liquor licenses to be issued. (Schreiber v. Illinois Liquor Control Com., 12 Ill.2d 118, 145 N.E.2d 50.) The municipality may decrease the number of licenses to be issued whether a renewal or an original application for a liquor license is involved. (Oak Park National Bank v. Village of Broadview, 27 Ill.2d 151, 188 N.E.2d 679.) In that case, a village ordinance decreasing the number of liquor licenses precluded the renewal of the plaintiffs license: The court said that the burden of establishing the invalidity of the ordinance rested on the plaintiff and plaintiff did not sustain that burden by merely questioning the reasons the village trustees passed the ordinance. The court held that the motive that may have activated those in authority was not subject to judicial investigation so the fact that one of the trustees expressed opposition to the holding of liquor licenses by restaurants was irrelevant.

Plaintiff next contends that in some way he is denied equal protection by the new ordinance. A person attacking the validity of an ordinance must show not only that the ordinance is invalid, but also that he has suffered or is in immediate danger.of suffering some direct injury as the result of its enforcement and not merely that he suffers from the enforcement in some indefinite manner in common with citizens generally. (City of Chicago v. Vokes, 28 Ill.2d 475, 193 N.E.2d 40.) In the instant case, the ordinance by its own language applies to all drug and grocery stores.

Finally, the plaintiff argues that the Rantoul ordinance complained of is in violation of Illinois Revised Statutes, chapter 43, paragraph 110, because it does not provide a class of license for sale of alcoholic beverages to be consumed off the premises. However, the Liquor Control Act expressly delegates the power to determine “the number, kind and classification of licenses for sale at retail of alcoholic liquor * * (Ill. Rev. Stat., ch. 43, par. 110.) Such language does not require a municipality to provide, by its ordinance, for the issuance of every classification of license permissible under the statute.

In sum, the plaintiffs complaint on its face shows its insufficiency. First of all, it asked for a judicial review of a decision of the board of trustees of the defendant municipality, rather than directly attacking the validity of the ordinance. It is clear that a municipality may make and alter ordinances pertaining to liquor licenses, and merely having a letter on file seeking to apply for a license would give the plaintiff no standing or vested rights sufficient to question the municipality’s exercise of its continuing authority to determine the- number of liquor .licenses it will issue. Even if the plaintiff had a valid application for a liquor license, he has suffered no peculiar injury as the ordinance applies to all drug stores and grocery stores alike. The trial court was correct in dismissing the plaintiff’s complaint for faffing to state a cause of action and the judgment is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Joseph Prater, Defendant-Appellant.
    (No. 11947;
    Fourth District
    June 27, 1973.

      Rehearing denied July 24, 1973.

    J. H. Weiner and Michael J. Costello, both of Springfield, for apel-lant.
    C. Joseph Cavanaugh, State’s Attorney, of Springfield, (Tim J. Bonan-singa, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On January 5, 1971, defendant-appellant Steven Prater and Neil Buchanan (who does not join in this appeal) were indicted for theft and burglary. On March 8, both defendants appeared with counsel for a hearing on a motion to suppress evidence. At this time defendant Prater, through his attorney, declined to participate in the hearing on the motion.

On March 13, 1972, defendant withdrew his plea of not guilty and entered a plea of guilty. He was sentenced to an indeterminate term of 1 to 10 years in the penitentiary.

Defendant urges that his plea was invalid because the trial judge failed to admonish him that by pleading guilty he was waiving any defense involving search and seizure of certain evidence. Defendant cites no authority for this contention nor are we aware of any. Rule 402 is specific in its requirements; it was complied with here and the plea, having been so taken, is a valid plea. See People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30,

Defendant also urges that the denial of probation was an abuse of discretion. In view of the fact that defendant had five prior convictions including possession of stolen property, theft over $150 and second degree burglary, this contention merits no discussion. The trial judge did not abuse his discretion in the denial of probation.

Defendant’s co-indictee Neil Buchanan was given probation with provision for six months incarceration. Defendant urges that the disparity between his sentence and the granting of probation to Buchanan was “discriminatory”. The record discloses that Buchanan had no prior record. Different sentences given co-defendants are not discriminatory where there is a basis in the record for the distinction. People v. Robinson, 3 Ill.App.3d 267, 278 N.E.2d 137.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Beatrice Camille Martin, Plaintiff-Appellee, v. Kralis Poultry Co., Inc., Defendant-Appellant.
    (No. 71-247;
    Fifth District
    June 7, 1973.

      Paul T. Riggle, and James B. Moses, of Smith, McCollum & Higgle, of Flora, for appellant.
    C. M. Jack Heap, of OIney, and Philip C. Zimmerly, of Champaign, for appellee. .
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This case involved a common law tort action brought to recover damages for personal injuries occasioned by the alleged negligence of the defendant in maintaining the floor of a room used as an entranceway into its plant. The jury rendered a verdict for the plantifl: in the sum of $75,090.52, upon which the court entered the judgment and from which this appeal is taken.

The defendant, Kralis Poultry Co., Inc., operates a poultry processing plant. The plaintiff, Beatrice Martin, was employed by the defendant on the day of her fall. Her husband, Ellis Martin, was also employed by the defendant as a superintendent. On the day of her fall the plaintiff had left the plant after work to attend a union meeting, off the company premises, to vote on whether to strike. At the end of the union meeting, the plaintiff returned to the defendant’s plant at the request of her husband, to obtain a ride home. She entered the defendant’s plant for the purpose of meeting her husband, when she slipped and fell in the entranceway leading into the plant. The negligence of the defendant, as alleged by the plaintiff, was in placing soap on the floor of the entranceway, in permitting the soap to remain on the floor, and in failing to warn the plaintiff of the unsafe condition of the floor. Ellis Martin, the plaintiff’s husband and the defendant’s plant superintendent, testified in his affidavit and on the witness stand that he had discussed the impending strike with the plant manager and told him that he could obtain the results of the union strike vote from his wife. He testified that, to obtain this information, he specifically asked his wife to return to the plant to obtain a ride home. Charles Walker, the defendant’s plant manager, denied that any such conversation took place. Ellis Martin did not wait for his wife to return to the plant.

There are three issues which form the bases of this appeal: first, whether the rights of the plaintiff are to be determined in a common law tort action or under the Workmen’s Compensation Act of Illinois; second, whether a statement of counsel for the plaintiff was so prejudicial that the judgment should be reversed; and finally, whether the jury was properly instructed.

It is argued by the defendant that the plaintiff’s injury arose out of her employment by the defendant, and therefore her action at law for damages was barred. The defendant cites the affidavit of Ellis Martin and his testimony at trial to the effect that the defendant employer needed and hoped to obtain information concerning the union strike vote, that the defendant employer specifically asked the plaintiff employee to return to the defendant’s plant for this purpose, and that when she returned to the defendant employer’s plant and was injured, she was there for its benefit and at the request of its superintendent. In light of these facts, the defendant argues that the plaintiff’s injury arose out of and in the course of her employment. Therefore, her cause of action at law is barred by the Workmen’s Compensation Act of Illinois.

The defendant also cites four cases in support of these contentions. In Anderson v. Poray, Inc. (1963), 42 Ill.App.2d 1, 191 N.E.2d 417, 421, the plaintiff a salesman engineer, was injured when he feU from a scaffold while assisting in the remodeling of his employer’s plant. The court found that the plaintiff’s common law tort action was barred by the Workmen’s Compensation Act. However, the court also found that the invitation to participate was extended to the plaintiff only because he was an employee, he was engaged in company activities which produced his injuries, and he was there solely because of an employer-employee relationship.

In Jewel Tea Co. v. Industrial Com. (1955), 6 Ill.2d 304, 128 N.E.2d 699, the Illinois Supreme Court held that injuries sustained by an employee whüe playing softball in an inter-company league competition after working hours and off the company premises were compensable under the Workmen’s Compensation Act, as arising out of and in the course of employment. However, the court found that there were subtle pressures from the company to encourage participation on the teams, such that the plaintiff and others like him felt compelled to play.

In Sanborn Co. v. Industrial Com. (1950), 405 Ill. 50, 89 N.E.2d 804, a secretary was asked to work on her usual day off and was directed by her employer to run an errand. Enroute to the office she was injured in an automobffe accident. The court held that since she was carrying her employer’s check and was acting pursuant to his direction, her injuries arose out of and in the course of employment. This was so, the court said, because the claimant was performing unusual duties, on a day which was ordinarily a holiday for her, at the express direction of her superior". 405 Ill. 55, 89 N.E.2d 806.

Lastly the defendant cites Swift & Co. v. Industrial Com. (1932), 350 Ill. 413, 183 N.E. 476. In this case a route salesman was killed in an automobile accident while he was carrying out the employers special directions in attempting to collect a delinquent account. The court found that because the deceased was performing the duty imposed upon him by his contract of employment at the time of the accident, he was acting out of and in the course of his employment.

All of these cases cited by the defendant can easily be distinguished from the case at bar. The last three citations are of cases where the employee asserted employment, brought his case under the Workmen’s Compensation Act, and had that decision sustained on review. In the case at bar, the plaintiff did not assert employment at the time of her injury and did not bring an action under Workmen’s Compensation. On the contrary, she brought a common law tort action. In each of the cases cited by the defendant, the plaintiff was either engaged in company activities which produced his injuries, or was in a position to be injured because of an employer-employee relationship and because of subtle pressures to be there, or was acting pursuant to specific directions by the employer to perform an unusual task. However, none of these situations existed in the case before us. Other than the testimony of the plaintiff’s husband, the record indicates that the plaintiff returned to the defendant’s plant at the request of her husband, solely to obtain a ride home. From the viewpoint of the plaintiff, she was merely complying with her husband’s request arising out of their relationship as husband and wife. From her point of view, she was not engaged in any company activities, she was in the plant for personal reasons, she was not acting under any pressure and she was not performing any unusual task for her employer. She was merely meeting her husband so that they might ride home together.

An analysis of the applicable Illinois law will further clarify this discussion. The pertinent Illinois statute, Ill. Rev. Stat, ch. 48, §138.5 (1967), provides:

“No common law or statutory right to recover damages from the employer * * * for injury * * * sustained by any employee while engaged in the fine of his duty as such employee other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act.”

Section 138.1 (b)2 further provides:

“The term ‘employee’ as used in this Act shall be construed to mean: * .
Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person who is not engaged in the usual course of the trade, business, profession or occupation of his employer unless he is so engaged at the lawful direction or instruction of his employer.”

From a reading of these exceipts from the Illinois Statutes, it is impossible to lay down a single all-encompassing rule by which the status of a person performing a service for another can definitely be fixed as an employee, and ordinarily no single feature of the relationship is determinative, but all must be considered together and each case must depend on its facts. (Anderson v. Poray, Inc. (1963), 42 Ill.App.2d 1, 191 N.E.2d 417; Village of Creve Coeur v. Industrial Com. (1965 ) 32 Ill.2d 430, 206 N.E.2d 706.) The cases have generally held, however, that there necessarily must be a contract of hire, express or implied. To be covered a person must be under a contract of hire and be engaged in the usual course of his employer’s business at the time of injury and the absence of either requirement at the time of the injury places the employee beyond the scope of the Workmen’s Compnsation Act. Anderson v. Poray, Inc. (1963), 42 Ill.App.2d 1, 191 N.E.2d 417.

The purpose of the Illinois Workmen’s Compensation Act is to protect workmen and compensate them for injuries received while performing any duty necessary to be performed in the course of their employment or incident to it. (Beverly Country Club v. Massachusetts Bonding & Insurance Co. (1932), 268 Ill.App. 380.) The Workmen’s Compensation Act does not apply to every accidental injury happening to an employee, but the injury contemplated by the Act must originate in some risk of the employment. (Klug v. Industrial Com. (1943), 381 Ill. 608, 46 N.E.2d 38; Schwartz v. Industrial Com. (1942), 379 Ill. 139, 39 N.E.2d 980.) To be compensable under the Workmen’s Compensation Act the injury must arise both “out of” and “in the course of’ being used in the conjunctive, they must coexist, neither alone being sufficient. Proof of one without proof of the other will not sustain an award. (Ceisel v. Industrial Com. (1948), 400 Ill. 574, 81 N.E.2d 506.) “In the course of employment” relates to the time, place and circumstances of the injury, while “arising out of the employment” refers to the requisite causal connection between the injury and the employment. Rydson Products Co. v. Industrial Com. (1966), 34 Ill.2d 326, 215 N.E.2d 261; Christian v. Chicago & Illinois Midland Ry. Co. (1952), 412 Ill. 171, 105 N.E.2d 741.

From these cases it is clear that there must be a causal connection between the conditions existing on the employer’s premises and the injury to the employee, and the accident must have had its origin in some risk connected with or incidental to the employment. A risk is incidental to the employment only when it belongs to or is connected with what an employee has to do in fulfilling his contract of émployment. (Chicago Hardware Foundry Co. v. Industrial Com. (1946), 393 Ill. 294, 65 N.E.2d 778; Antoszkieioicz v. Industrial Com. (1943), 382 Ill. 149, 47 N.E.2d 74.) Furthermore, an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the worker would have been equally exposed apart from it, does not “arise out of” the employment, unless the character of the employment intensifies the risk. J. I. Case Co. v. Industrial Com. (1967), 36 Ill.2d 386, 223, N.E.2d 847.

The record in the present case shows that the plaintiff was employed as an inspector and that on the day of her injuries she had finished her work and clocked out two hours before she sustained her injury. And not only is there no evidence of an employment relationship, there is no evidence of a causal connection between any such employment and her injury. Since she had clocked out, her injury did not occur within the time of her employment. There is no evidence that the risk encountered by the plaintiff was incidental to her employment as an inspector or that her injury resulted from a hazard to which she would not have equally been exposed apart from it. The hazardous condition of the floor is not in dispute in this case, and the risk which it posed was not any greater to the plaintiff by virtue of her return to the plant after hours, than that which it posed to any other person also entering the plant through that particular entranceway on that day. The defendants make much of the fact that the actions of the plaintiff were beneficial to the employer, that they were performed at the direction of the employer, and that the accident occurred on the employers premises. Again the case law has clarified these three points. As was mentioned above, before an injury can be said to arise out of the employment, the risk thereof must be one peculiar to the work. It does not follow, therefore, that simply because an activity is beneficial to an employer it is also incidental to the employment. (Spees v. Stapleton (1989), 111 Ill.App.2d 254, 250 N.E.2d 181.) Furthermore, the facts in the case before us are in dispute concerning the extent to which the actions of the plaintiff were to benefit the employer-defendant, if any. And it must be mentioned again that no single factor is determinative of the employment relationship.

Concerning the defendant’s last assertion, that the injury occurred on the defendant employer’s premises, again there is substantial evidence to the effect that the plaintiff was on the defendant’s premises solely for the purpose of obtaining a ride home from her husband, something for her own personal benefit. Cases have held that even though an accident happens on the employer’s premises, if it occurs while the employee is doing something there for his own personal benefit, if does not arise out of his employment. Mazursky v. Industrial Com. (1936), 364 Ill. 445, 4 N.E.2d 823; Board of Education v. Industrial Com. (1926), 321 Ill. 23, 151 N.E. 499.

In short, two hours after the normal work day had ended, the evidence supports the conclusion that there was no lawful direction by the employer that she perform an unusual task and no benefit that her presence on the employer’s premises could render the company. To substantiate and lend support to the conclusion that plaintiff’s injuries did not arise out of and in the course of her employment, we cite the case of Lyons v. Michigan Bldg. Co., Inc. (1947), 331 Ill.App. 482, 72 N.E.2d 776. In that case the plaintiff was on an elevator enroute to the 14th floor on which was located a rest room and the office in which she worked, approximately twenty minutes before she was due for work, when she sustained her injury. She intended to go first to the rest room, leave her hat and coat at the office, and return to the ground floor to a public restaurant. Enroute a light fixture fell from the ceiling of the elevator, injuring her. She thereafter brought a common law tort action to recover damages against the building owner. At trial the defendant made a motion for a directed verdict alleging that at the .time of the accident the plaintiff was acting “out of” and “in the course of” her employment; that, since the elevator was needed to get to and leave her employer’s office, she was on her employer’s premises; and that her suit was barred by the Workmen’s Compensation Act. On appeal, the Appellate Court reversed the trial court’s directed verdict, and held that the facts fairly tended to establish that her injury did not occur “in the course of” or “arise out of” her employment, since she was injured twenty minutes before she was due at work, while-riding in the elevator for her own personal benefit.

In the final analysis it should be remembered that the existence of an employer and employee relationship is a question of fact.- (Crepps v. Industrial Com. (1949), 402 Ill. 606, 85 N.E.2d 5; Lawrence v. Industrial Com. (1945), 391 Ill. 80, 62 N.E.2d 686.) It is the function of the jury to draw ultimate conclusions as to the facts and to weigh contradictory evidence. (Houston v. Leyden Motor Coach Co. (1968), 102 Ill.2d 348, 243 N.E.2d 293.) In Finley v. New York Central R.R. Co. (1960), 19 Ill.2d 428, 167 N.E.2d 212, the court held that the conclusion of the jury, should not be set aside on review, merely because different conclusions could-be drawn or because the judge feels that other results are more reasonable. The only occasions where it is proper for a new trial to be granted is where a finding is contrary to the manifest weight of the evidence. In the present case there is ample evidence to support the jury’s determinations of the factual disputes, including the reasons for the plaintiff’s return to the company.

The defendant next complains of a statement made by counsel for the plaintiff in the presence of the jury which is alleged to be so prejudicial as to warrant reversal. The plaintiff called a Department of Labor safety inspector as a witness and began to question him about Industrial Commission rules. Before any specific rules were mentioned, the following dialogue occurred between counsel:

“Defendant’s Counsel: May it please the Court, I think maybe we might have this out of the presence of the jury, but there is nowhere in the complaint any allegation as to any statute or directives of the Department of Safety, and this comes as a surprise at this time.
Plaintiff’s counsel: If the Court please, I want to contest this. It cannot come as a surprise. The plant has been warned repeatedly about that.”

Defendant cites the general rule that: “A judgment obtained through statements of counsel concerning inadmissible matters that are prejudicial is grounds for a reversal where the prejudice is clear, though the trial court directs the jury to disregard the statements.” Illinois Law & Practice, vol. 3, Appeal and Error, pages 55-59. However, each of the cases cited by the defendant to support its argument involved either many instances of prejudicial statements by counsel, or the court did not direct the jury to disregard counsel’s statements, or counsel made comments respecting the ability to pay, all of which can be distinguished from the case before us.

None of the cited cases is similar to the one before us. In this case plaintiff’s attorney made a single ambiguous remark, early in trial, during a confusing interchange between attorneys for both sides, which may not have been heard or understood by the jury. The trial judge quickly took corrective action to instruct the jury to disregard the exchange between counsel, no other reference was made to the entire episode throughout the trial, and the record shows that the trial judge reaffirmed his decision in ruling on defendant’s post-trial motion. In addition to the general rule cited by the defendant, is the rule that “Improper argument or misconduct of counsel may constitute ground for reversal but only where it is apparent or probable that the complaining party has been prejudicially affected thereby.” (Illinois Law & Practice, vol. 3, Appeal and Error, pages 55-59.) Applicable Illinois case law has shown that misconduct by counsel may be rendered harmless error by corrective action of the court. Furthermore, the trial court is in the unique position of hearing all the testimony, all of the arguments, and of observing the parties, their counsel, and the effect of all of this on the jury. For this reason the sound rule exists that the question of whether conduct is or is not prejudicial rests within the sound discretion of the trial court and its decision wül not be disturbed unless it is clear that the court has abused its discretion. (Johnson v. Cunningham (1969), 104 Ill.App.2d 406, 244 N.E.2d 205.) It is, therefore, necessary to consider the trial as a whole to determine if a party has been denied his constitutional right to a fair trial by misconduct of the other side’s counsel. As stated above, it is only where it appears that the trial judge has abused his discretion and that the jury has been misled by these improper remarks that a reviewing court will set aside a verdict on this ground. It does not appear from the record of this trial that the trial judge abused his discretion. On the contrary he exercised it to its fullest and fairest degree. In addition, it does not appear that the jury was misled. Therefore the judgment should not be reversed on this ground.

The third and final ground for appeal mentioned by the defendant was that the court did not properly instruct the jury. The defendant alleges initially that the court erred in failing to give its tendered instruction I.P.I. 3.01, impeachment by prior inconsistent statement. There are only two cases cited to support this position, neither of which are on point. In Savage v. Blancett (1964), 47 Ill.App.2d 355, 198 N.E.2d 120, the trial judge’s faüure to give a tendered instruction was in addition to instructions which were in fact given, but given without precision and accuracy. Combined, these formed a basis for reversible error. And in Cassens v. Tillbert (1938), 294 Ill.App. 168, 13 N.E.2d 644, there was no assertion that a proper instruction was refused. Instead, the instructions which were given were improperly stated, were confusing and misleading, and as a series were inconsistent.

The law is clear that I.P.I. 3.01 is a cautionary instruction and that the decision to give or not to give it is totally within the discretion of the trial judge. (Schneiderman v. Interstate Transit Line (1948), 401 Ill. 172, 81 N.E.2d 861; Bennet v. W. M. McAllister Co. (1926), 241 Ill.App. 502.) Furthermore, where there is no proof in the record of any inconsistency between the pretrial deposition and trial testimony, there is no necessity for this instruction. Sola v. City of Chicago (1967), 82 Ill.App.2d 266, 227 N.E.2d 102.

A review of the record in this case also shows that each instance of impeachment cited by the defendant was evidence of contradictory statements by other witnesses. These are not prior inconsistent statements within the usual definition. They should be statements made by the witness himself before trial, which are contrary to and inconsistent with testimony given in trial. (Reilly Tar & Chemical Corp. v. Lewis (1942), 326 Ill.App. 84, 61 N.E.2d 290.) Without evidence of any such prior inconsistent statements, there is no need to give I.P.I. 3.01.

The defendant argues the second error in the instructions dealt with the giving of I.P.I. 34.04, mortality tables as evidence of damages. The defendant argues that the court erred in instructing the jury that it may consider the health, habits, and other activities of the plaintiff in determining life expectancy and future damages when there was no evidence of these before the jury. The three cases cited by the defendant are not on point and may be distinguished on the facts; and the language of the courts which defendant cited from these cases is quoted out of context, such that no further consideration of these cases need be made. Instead we must look to the case law dealing with this instruction and the record in this case.

Where mortality tables are introduced into evidence, the jury should be carefully instructed as to their purposes for fixing damages and their use is prejudicial without such instructions. (Avance v. Thompson (1944), 387 Ill. 77, 55 N.E.2d 57.) Furthermore, it is the well established rule that the instructions will be considered as a whole and although technical errors may be found to exist therein, if the complaining party’s rights have not thereby been prejudiced, such errors will not be deemed grounds for reversal. McKinney v. Illinois Power Co. (1960), 26 Ill.App.2d 193, 167 N.E.2d 249; Bunton v. Illinois Central R.R. Co. (1957), 15 Ill.App.2d 311, 146 N.E.2d 205.

The record indicates that there was in fact ample evidence concerning the health, habits and activities of the plaintiff since her injury. She has lost wages and raises in pay since her accident; she had to wear a cast for two years; she was bedridden, in a wheel chair, or on crutches since the accident; she was unable to do her housework and thus was forced to hire a maid; and since the accident she has been unable to stand for more than thirty minutes at a time. And, finally, there was medical testimony as to the plaintiff’s future health. Contrary to the defendant’s allegation, to exclude that portion of I.P.I. 34.04 specifying “health, habits and activities of the plaintiff” would have been prejudicial. Therefore viewed in light of the case law and the record this instruction was proper and when taken together with the other instructions given, it substantially presented the law fairly to the jury upon the facts.

The third and final error alleged to have been made in instructing the jury was the Court’s Instruction No. 2, on the burden of proof, which the defendant says was a vague and senseless instruction. The instruction reads as follows:

“The Plaintiff has the burden of proving each of the following propositions: First, that the Plaintiff before and at the time of the occurrence was using ordinary care for her own safety; Second, that the Defendant acted, or failed to act in one of the ways claimed by the Plaintiff as stated to you in these instructions and that in so acting or failing to act, the Defendant was negligent; Third, that the Plaintiff was injured; Fourth, that the negligence of the Defendant was a proximate cause of the injury to the Plaintiff.
In this case the Defendant has.asserted the affirmative defense that at the time the Plaintiff sustained her alleged personal injuries she was on the premises of the Defendant, with the consent of the Defendant, solely to satisfy her own purposes, i.e., to obtain a ride to her residence.
The Defendant has the burden of proving this defense.
If you find from your consideration of all the evidence that each of the propositions required of the Plaintiff has been proved and that the Defendant’s affirmative defense has not been proved then your verdict should be for tire Plaintiff. If, on the other hand, you find from your consideration of aH the evidence, that any one of the propositions the Plaintiff is required to prove has not been proved, or, unless Plaintiffs presence was known to Defendant, that the Defendant’s affirmative defense has been proved, then your verdict should be for the Defendant.”

We find the insertion of the language “unless Plaintiff’s presence was known to Defendant” in the last sentence of the instruction confusing but in view of the evidence and defendant’s affirmative defense do not arrive at the conclusion that the confusion was necessarily prejudicial to defendant. Their sole ground for objection at the conference on this instruction was that the phrase “unless Plaintiff’s presence was known to Defendant” was added over the objection of defendant after the final argument, and defendant’s argument was made on the theory that the instruction would be given without the inserted clause.

The defendant argues at length that this was a peremptory instruction that it was vague and defective and therefore that it warrants a reversal, citing Milford Canning Co. v. Central Ill. P. Serv. Co. (1963), 39 Ill.App.2d 258, 188 N.E.2d 397; Duffy v. Cortesi (1954), 2 Ill.2d 511, 119 N.E.2d 241; Kelly v. C. Iber & Sons, Inc. (1958), 17 Ill. App.2d 388, 159 N.E.2d 372. This question can, however, be disposed of rather quickly. The defendant prefaces his argument with the claim that the instruction is peremptory. A peremptory instruction according to Black’s Law Dictionary is “an instruction given by a court to a jury, which the latter must obey implicitly, as an instruction to return a ver-diet for the defendant, or for the plaintiff, as the case may be”. From a reading of Court’s Instruction No. 2 it seems that it was not verdict directing, because the jury could find for the defendant if they found that any one of the propositions the plaintiff was required to prove had not been proved. Furthermore, the instruction supports a verdict for the plaintiff if certain propositions are found and it supports a verdict for the defendant if the contrary is found. This is not a peremptory instruction according to the holding in Nazel v. Village of East Hazelcrest (1952), 347 Ill.App 338, 106 N.E.2d 838. This case involved a personal injury and property damage action against a village, caused when the plaintiff’s automobile was driven into a hole in the street caused by the collapse of a tile culvert. The defendant complained of an instruction which began “The plaintiff may recover” and ended “If the plaintiff failed to prove * * * they cannot recover”, claiming it was peremptory. The reviewing court held that was not a peremptory instruction. Similarly, the instruction in the present case was not peremptory and the trial court did not err in giving it.

For the foregoing reasons, the judgment of the trial court is affirmed.

G. MORAN and JONES, JJ., concur.


author: Mr. JUSTICE EGAN

text:
    Carole Slavis, Plaintiff-Appellant, v. Gerald Slavis, Defendant-Appellee.
    (No. 57011;
    First District (1st Division)
    June 18, 1973.

      Henry A. Kalcheim and Bernard Hammer, both of Chicago, for appellant.
    L. Louis Karton, of Chicago, for appellee.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

In September, 1968, the plaintiff, Carole Slavis, filed a petition for the enforcement of arrearage of alimony and child support granted pursuant to a decree for divorce as later modified. After a trial the court denied the plaintiff’s petition on the ground that “by her actions, [she] knowingly waived her rights to coUect alimony and by her conduct, assumed the responsibility to support her own child and is thereby estopped from asserting her rights under the original Court Order for child support and alimony.” The record before us does not contain a stenographic transcript of the testimony heard but consists of, in addition to the pleadings in the circuit court of Cook County, pleadings and orders from proceedings in California and New York, various letters, principaUy between attorneys, memoranda of law submitted by both parties, and the final order of the trial judge which contained specific findings of fact.

The defendant correctly asserts that the absence of a report of proceedings precludes a review of the trial court’s determination of fact (Lukas v. Lukas, 381 Ill. 429, 45 N.E.2d 869), but that does not mean that a reviewing court may not question whether the factual findings support the legal conclusions of the trial court. See Continental Paper Grading Co. v. Fisher, 3 Ill.App.2d 118, 120 N.E.2d 577.

The plaintiff and the defendant, Gerald Slavis, were married in May, 1960, and divorced in July, 1964. They had one child, Ricky, who was three years old at the time of divorce. The decree incorporated a property settlement agreement, under which the defendant agreed to pay $12.50 per week for permanent alimony. The first payment was to begin upon the entry of the decree and end on the remarriage of the wife or death of the wife or husband. The agreement also provided that the husband pay $50.00 per week for the support of the minor child and $595.00 for arrearages due for alimony and child support. The plaintiff was given custody of the child, and the defendant had visitation rights of one day each weekend from 12 noon to 7 P.M., the right to take the child for the weekend four times a year and the right to take the child for one week during the summer vacation. The defendant further agreed to keep his life insurance policy in full force and effect with the child as beneficiary and to maintain Blue Cross and Blue Shield policies to cover the child.

In March, 1965, the defendant filed a petition in New York, where both parties were residents, alleging, in substance, that his wife had taken his son to Jamaica in November, 1964, without notice to him. The New York court ordered the plaintiff to make the child available there for visitation purposes. She never complied with that order. In September, 1968, a California court, pursuant to an action brought by the defendant, modified the Illinois decree and, in compliance with the stipulation of the plaintiff and defendant, terminated alimony as of December 28, 1967, and reduced child support payments to $125.00 per month effective August 30, 1968, to continue until further order of the court or until the child reached majority. The defendant was further obligated to carry the child as a beneficiary on his medical and hospital policies. The court modified the visitation rights of the defendant, who was to bear all transportation expenses for visitation and was to forward to the wife appropriate tickets to transport the child from, his place of residence to wherever the plaintiff was to meet him. The plaintiff was restrained from removing the child from California .except for periods not to exceed a month for vacation and ordered to advise the defendant within one week of any change of address of the- child’s, residence. The California court specifically found that it was without jurisdiction to deal with the arrearage on alimony or child support.

After the hearing on the petition before us, the trial court entered the order denying the plaintiff’s petition and included the specific findings of fact which, in pertinent part, are as follows: ■

« # * *
1. That the evidence was that both plaintiff and defendant removed their permanent residence from Illinois to the State of-New York at about the time that the entry of the Decree of Divorce herein occurred. There was no objection on the part of either party to the removal from Illinois to New York.
2. (a) The plaintiff subsequently moved to. Jamaica with their minor child. At that time, the defendant was current in all his support payments. Plaintiff had been bom and raised in Jamaica, although she had attended schools in the United States and had been residing here with her parents for some time before she left. She obtained a contract for employment in Jamaica. Plaintiff, and defendant both testified that she told the defendant th.at. she was leaving for Jamaica with the child. He objected and told, her he would discontinue payments of alimony and child support if she left. Despite this, plaintiff moved to Jamaica. After she moved, defendant spoke by phone to plaintiff from Jamaica. Defendant then started Court proceedings in New York, asking for plaintiff’s return with the child and seeking visitation. Plaintiff was served by mail in Jamaica, but no appearance on her behalf was filed.
(b) An ex- parte order was entered by the New York Court on July 6, 1985, directing plaintiff to return RICKY, the minor child, to the State of New York. Defendant did not seek, nor did he receive, any order to suspend alimony and child support payments. Defendant ceased to make any payments after she left New York.
3. Defendant traveled to Jamaica in October, 1965. He met the plaintiff and her parents. He was told that RICKY was out of the city, that he could not be brought back to the city and that the defendant could travel out to the country to see RICKY. Defendant testified that he gave plaintiff a check, which she tore up. He claimed that she said she did not want his money nor did she want him to have anything to do with RICKY. She denies this. The father did not see RICKY in Jamaica. He consulted a solicitor and barrister in Jamaica and was advised by them that legal action to obtain RICKY’s return to the United States would be of no avail. (Emphasis added.)
4. In October, 1967, defendant, in New York, learned that plaintiff had moved to Los Angeles, California, during April, 1967, some six months earlier. From the time plaintiff moved to Jamaica in 1965 until she filed an action in Illinois in 1968, plaintiff did not advise defendant of the specific whereabouts of RICKY or herself nor was any demand made for alimony or child support nor was there ever any communication from plaintiff to defendant that she. was in need of support for RICKY or herself. (Emphasis in Order.)
5. (a) In Los Angeles, defendant hired counsel and brought an action for change of custody of the minor child, RICKY. An order was entered in October, 1968, regarding the prayer for change of custody and by agreement, the Court ordered changes regarding alimony, child support and visitation, but declined to pass on the arrearage.
(b) In October, 1968, after the Los Angeles action was concluded, plaintiff secured Illinois counsel and filed the present petition to collect arrearage of unpaid alimony and child support.
6. The Court finds that plaintiff, by her actions, knowingly waived her rights to collect alimony and by her conduct, assumed the responsibility to support her own child and is thereby estopped from asserting her rights under the original Court order for child support and alimony.
# # #
IT IS, THEREFORE, HEREBY ORDERED that plaintiffs petition for child support and alimony arrearages, appointment of a sequestrator, restraining orders and other relief be and the same is hereby denied..
# # * ”

An examination of the authorities of this State reveals abundant and consistent authority for the proposition that a violation of the visitation terms of a divorce decree by the mother will not excuse the father’s failure to comply with the alimony and child support terms. (Metcoff v. Metcoff, 4 Ill.App.3d 160, 280 N.E.2d 572; Stark v. Stark, 131 Ill.App.2d 995, 269 N.E.2d 107; Wilson v. Wilson, 122 Ill.App.2d 142, 257 N.E.2d 810; Lewis v. Lewis, 120 Ill.App.2d 263, 256 N.E.2d 660; People ex rel. Hartshorn v. Hartshorn, 21 Ill.App.2d 91, 157 N.E.2d 563; Trimble v. Trimble, 16 Ill.App. 2d 408, 148 N.E. 2d 612; Hurt v. Hurt, 351 Ill.App. 427, 115 N.E.2d 638; Shuff v. Fulte, 344 Ill.App. 157, 100 N.E.2d 502; Kemp v. Kemp, 332 Ill.App. 432, 75 N.E.2d 385.) These cases have also consistently held that past-due installments of support are a vested right, and a court has no authority to modify them. (See also Gregory v. Gregory, 52 Ill.App.2d 262,, 202 N.E.2d 139.) The defendant recognizes this rule but asks that we. examine it “in light of contemporary concepts on the obligations of husband and wife.” After this case was decided, that same request now advanced by the defendant was made in Stark v. Stark, 131 Ill.App.2d 995, 998, 269 N.E.2d 107. The court pointed out in rejecting the defendant’s argument:

“It is one of the sad but true facts of the current time that children become the innocent pawns in the divorce chess game. In order to obtain a divorce, the parties will promise almost anything by way of child support or visitation. After the fact of divorce, and generally after remarriage, efforts commence to scale down these promises. If the law were to tolerate retroactive limitation, nothing could prevent a party from promising twice or three times his annual income as child support or alimony to soften resistance to obtaining a divorce with the sure and certain knowledge that the troublesome financial details could be worked out by hindsight. For better or for worse, the policy of the law and of the State is to preserve marriage (Stanard v. Stanard (3rd Dist. 1969), 108 Ill.App.2d 240, 247 N.E.2d 438) and one means of implementing this policy is to insure that obligations arising out of its dissolution are fixed and determinable. The courts of this state are heavily burdened enough with litigation growing out of petitions for rule and petitions for modification without adding to that burden petitions for retroactive modification. If defendant’s theory were to prevail, no divorce decree containing alimony or support provisions would ever be final in the true sense, but would be like Mr. Justice Roberts’ complaint about the decisions of the United States Supreme Court: ‘ * * c a restricted railway ticket, good for this date and this trip only $ # # >99

We have re-examined the rule and adhere to the unchanged precedent of many years. We are not persuaded to hold otherwise because, as the defendant argues, section 19 of the Divorce Act provides that a wife may be ordered to pay alimony and child support and the 1970 constitution provides that “equal protection of the laws shall not be denied or abridged on account of sex.”

The defendant argues further that the plaintiff’s claims are barred under the doctrine of equitable estoppel, citing Anderson v.. Anderson, 48 Ill.App.2d 140, 198 N.E.2d 342. “Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is absolutely precluded from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding rights.” (ILP, Estoppel sec. 22.) Contrary to the defendant’s argument, reliance on the conduct of another by a party to his detriment is an essential element of equitable estoppel. (Hickey v. Illinois Central R.R. Co., 35 Ill.2d 427, 447, 220 N.E.2d 415.) In the Anderson case, the father had executed a consent to the adoption of the child by his former wife’s new husband in return for a promise to require no further child support payments. The adoption proceedings, unknown to him, were never filed. The appellate court reversed his contempt conviction for failure to pay and remanded the case for determination whether the plaintiff was entitled to a money judgment. The court pointed out that the plaintiff conceded that she had a vested right “unless estopped to assert her right.” Most important, the evidence in that case showed that the father did rely on the promise of the mother by executing the adoption agreement, thus surrendering a legal right. See also the appeal after remand in Anderson v. Anderson, 63 Ill.App.2d 358, 211 N.E.2d 492.

In this case, the plaintiff informed the defendant that she was leaving for Jamaica (for understandable reasons). It was at this point that he, without legal justification, told her he would discontinue child support payments. While he sought in New York to enforce his visitation rights, he did nothing to modify his support payment. He took no steps in Jamaica to enforce or modify the decree save consulting with solicitors. The position he took later in California was precisely the same he took in New York and Jamaica with some refinements that inured to his benefit, not to his detriment.

Estoppel (or waiver) must be proved by clear and unequivocal evidence. (Bovaird Supply Co. v. McClement, 32 Ill.App.2d 224, 177 N.E.2d 430.) Significantly, the trial court made no finding that the plaintiff had torn up the check (the amount of which is unknown) or that she told the defendant she did not want his money. But, even if the trial court had accepted the defendant’s version, those acts, performed under the special circumstances apparent, together with the fact that she did not subsequently make any demand for payment, falls short of the requirement of clear and unequivocal evidence of waiver, which is the intentional relinquishment of a known right. (Vermilion County Prod. Credit Assn. v. Izzard, 111 Ill.App.2d 190, 249 N.E.2d 352.) The California proceedings themselves established that tire defendant never regarded her as having waived any rights.

For these reasons we conclude that the plaintiff is entitled to that amount of arrearages for afimony that had accrued up to December 28, 1967, and arrearages for child support up to August 30, 1968, with interest, and for reasonable attorney’s fees and expenses incurred in enforcing this arrearage. Horwitz v. Honoitz, 130 Ill.App.2d 424, 427, 264 N.E.2d 723.

A memorandum of law submitted by the plaintiff in the circuit court shows that the trial judge refused to permit the plaintiff to file an amendment to her prayer for relief to include a prayer for an increase in chüd support. The notice of appeal relates only to the claim for “alimony and child support due.” The plaintiff now urges that we reverse that ruling of the trial judge with directions to grant the plaintiff leave to file the petition for an increase, in chüd support. In view of the insufficiency of the record before us, we are unable to determine the propriety of the trial court’s ruling. We, therefore, decline to reverse that ruling without prejudice to the right of the plaintiff to raise the question again in the trial court in an appropriate manner.

The judgment of the circuit court is reversed and remanded with instructions to proceed to a hearing to determine the amount due to the plaintiff and to hear any other matters properly before it in a manner not inconsistent with the views expressed in this opinion.

Judgment reversed and remanded with directions.

GOLDBERG and HALLETT, JJ., concur.


author: PER CURIAM.

text:
      In re Estate of Harry L. Kent, Deceased—(John E. Golden, Admr. of the Estate of Harry L. Kent, Deceased, Petitioner-Appellee, v. Donald Rosenberg, Father and Next Friend of Gregory Rosenberg, a Minor, Respondent-Appellant.)
    (No. 57026;
    First District (3rd Division)
    June 21, 1973.
    Daniel Nagle, of Chicago, for appellant.
    Jerome H. Torshen, Robert A. Skimick, and Thomas A. Prydek, and Garretson and Santera, all of Chicago, for appellee.
   PER CURIAM.

SCHWARTZ, J., took no part.