author: MR. JUSTICE LYONS

text:
    James L. Bohannon, Plaintiff, v. Joseph T. Ryerson & Son, Inc., a Corporation, and Universal Fabricated Products Co., Inc., a Corporation, Defendants. Joseph T. Ryerson & Son, Inc., a Corporation, and Universal Fabricated Products Co., Inc., a Corporation, Third Party Plaintiffs-Appellees, v. Industrial Maintenance, Inc., a Corporation, Third Party Defendant-Appellant.
    Gen. No. 50,403.
    First District, Second Division.
    June 28, 1966.
    Rehearing denied September 12, 1966.

      Andrew J. Farrell, of Chicago, for third party defendant-appellant.
    Howard, French and Healy, of Chicago, for third party plaintiffs-appellees.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment in favor of the third party plaintiffs who had filed third party actions against the third party def endant.

Joseph T. Ryerson & Son, Inc., hereinafter referred to as the owner Ryerson, is a corporation engaged in the business of fabricating and selling structural steel products and in connection with its business owns and operates a warehouse known as the “South Warehouse” at 2558 West 16th Street in Chicago, Rlinois. Universal Fabricated Products Co., Inc., hereinafter referred to as the contractor Universal, is a corporation engaged in the manufacture, processing, fabricating, and sale of insulation materials. Industrial Maintenance, Inc., hereinafter referred to as the subcontractor Industrial, is a corporation engaged primarily in the construction business, specializing in sandblasting and painting of storage tanks for the petroleum industry and in general construction and maintenance work on structures and buildings. Charles P. Lind is president of subcontractor Industrial.

Owner Ryerson’s South Warehouse is a rectangular building used primarily for the fabrication and storage of steel structural building materials. It is approximately two blocks long from north to south and is about 550 feet wide from east to west along 16th Street. The exterior walls and roofs are constructed of corrugated steel. The floor is concrete and the structure from the floor to the peaks of the roofs is equivalent to a height of three stories. The warehouse has “seven-peaked roofs” which divides the building into seven sections known as “spans.” These “spans” are alphabetically identified from “A” to “F.” The peaks of the roofs extend from east to west. These spans vary in their dimensions, from north to south, from 40 feet to 108 feet and run the entire width of the building from east to west. The roof is supported by vertical steel columns, placed 23 to 25 feet apart. They are approximately six inches wide and flat at the top. Steel beam trusses, about seven inches wide at the top with flanges which project upward from the upper surface, are located 25 feet apart and run from north to south. The space between two trusses is known as a “bay.” There are 24 bays in each span. Three-inch steel beams run diagonally across the bays. There were two or more electric cranes in each span, which were not used in this project.

Early in January of 1953, owner Ryerson, became interested in placing a false ceiling in the south warehouse in order to reduce the cube of the building, which in turn would lessen the cost of heating the warehouse in winter and keeping it cool in the summer. A salesman from contractor Universal, called upon Robert Dent, director of engineering for owner Ryerson, to sell insulation fabrications, manufactured and sold by contractor Universal. This led to a series of conferences and the exchange of letters between Dent and William Waite, the manager of contractor Universal. In some of these meetings, Paul Gross, William Ourand and R. E. Wallace, engineers employed by owner Ryerson, were also present.

The concluding paragraph of a letter dated February 6, 1953, from Universal to Ryerson reads as follows:

We estimate that the above application can be installed complete for $0.80 to $0.90 per square foot of total area insulated. We are submitting this proposal for your information only. In order to prepare a firm bid, it will be necessary for us to spend considerable time in determining the actual areas involved, details of the steel structure, window and door areas, etc.

We understand that the warehouse is to continue in operation during erection of the insulation, and it will be necessary to reach a working agreement with Ryerson regarding the working conditions and available working areas for our erection crews.

We would appreciate your study of our intended application, and erection price. If the system is satisfactory and the price is generally in line, we will then make a complete study and submit a firm bid on this work.

/s/ William Waite. (Emphasis supplied.)

On July 10, 1953, contractor Universal, sent a lengthy letter to owner Ryerson, in which it set forth in detail the manner in which the work was to be performed, the material, and equipment to be used. The letter also quotes a firm price. We quote one of the paragraphs from said letter:

We would prefer to continue using the 2x2 mesh No. 14 gauge galvanized wire as opposed to previous suggestions of lighter mesh wire. If this wire is used, we do not believe it to be necessary to provide support rods in the larger spans D & E. Sufficient strength is available in the wire itself because one of our erection crew was walking on the wire until he was cautioned to use scaffolding only. (Emphasis supplied.)

Shortly before the date of the foregoing letter an experimental insulation was carried on in three bays of span F. This resulted from a combination of ideas between Waite of contractor, Universal, and Dent, of owner Ryerson. Their object was to determine the cost basis for the work and perfect the method of performing it. The purchase order for that job from owner Ryerson, to contractor Universal, was dated May 1, 1953. The actual work started about June 15 or 20, 1953. Mr. Gross was assigned to that job on behalf of owner Ryerson. Waite of contractor Universal, was also present during the experimental job, as were employees of subcontractor Industrial, including Lind.

For several weeks Dent and Waite discussed the installation of the insulation. They discussed the use of J-bolts for fixing steel wire mesh to the side of the span, the use of angle irons with flat bars to affix the extremities and the manner of connection of the wire mesh at the sides and end. They agreed that five-foot wide wire mesh was to be used in the bays in such position that one layer of wire mesh would overlap the other layer. The wire to be supplied in 150 foot lengths. The bays varied between 40 and 108 feet so that the rolls would have to be cut. This was to be done to minimize the waste of wire. The cost factor of the job to be performed was determined from the experimental job. The use of scaffolding on the larger job was not discussed. According to Waite of contractor Universal, “the insulation was not intended to be anything that would support one’s weight. Nobody was supposed to walk on it.”

Owner Ryerson, was supposed to supply all of the metal components but the hog or pen rings. Waite had a conversation with Dent relative to the pen or hog rings prior to the start of the experimental work. It was also set forth in one of the exhibits, 12-C, that owner Ryerson, was to supply all metal component parts except pen rings. Contractor Universal, sent the pen rings to owner Ryerson, and charged for them. It also supplied pen rings to subcontractor Industrial. The actual work on this job had to be done so that it would not interfere with the regular work of owner Ryerson, in the warehouse.

On September 18, 1953, a purchase order signed by Dent was sent by owner Ryerson, to contractor Universal. The same reads as follows:

Install a false ceiling just above the lower chord of the roof trusses in twenty-four panels of span “E,” Insulating material to be 1%" of fiberglass foil-faced jacketing, which will be furnished by you. All steel members to be furnished by Ryerson.

Cost $.3715 per square foot, in accordance with your letter of August 13,1953.

Labor to fabricate and install four galvanized steel stacks to extend roof ventilators to the bottom chord of the truss. Details pertaining to the steel stacks to be developed and price quoted after the first stack is installed. Steel will be furnished by Ryerson.

The installation on spans “E” and “F” started in September of 1953. The work started during the week at 8:00 o’clock in the evening and Saturdays at 1:00 p. m. The time put in depended upon the availability from owner Ryerson’s standpoint.

On November 14, 1953, plaintiff, James L. Bohannon, an employee of subcontractor Industrial, came to work around noon and commenced work with the wire crew on span “E,” consisting of himself, Parks, Foss and Nicholai. Plaintiff had worked for about two hours prior to the occurrence. At that time, he went to pull the number four wire into place with a stick. He started about two struts north of the south end. Then he went to the end of the crane, climbed to the truss and started to walk north on the truss. When he came to the second strut, he walked west on it until he came to the number four wire panel. At this point he was squatting on the six-inch surface of the strut, on top of the number five panel of wire which had already been stretched and anchored and about three or four feet west of the truss. He was perfectly balanced until he heard a noise. He also experienced a sensation which felt like the wire was being jerked out from under him. Then he lost his balance and fell to the floor of the warehouse.

Foss who was working below him at the time, heard “a little ping” and looked up. He saw the wire pulling apart and plaintiff fall. After plaintiff fell, Alvin Stevens went up to fix the number five panel of wire. When he reached the wire, he found that no part of the fabric was broken and that some of the hog or pen rings remained in the wire. These rings, however, were open. In repairing the wire, Stevens testified that they overlapped the wire about twelve inches, the same as before. They did not remove the angle irons from the wire itself and did not add any new wire. The only difference after the repair had been completed was the new hog rings.

According to the testimony of William Waite (Universal), William Junius Park (Industrial), William C. Foss (Industrial), James Millard (Industrial), Charles P. Lind (President of Industrial), and plaintiff, Bohannon, no scaffolding, planks or staging was used in the installation of the wire mesh.

Lind of subcontractor Industrial, testified that it would have been impossible to use scaffolding because they only had five or six hours in which to work, and it would have taken more than six hours to erect scaffolding; that they were told they could only work from midnight to morning, and as a rule they did not get started until 2:00 a. m., and finished between 6:30 and 7:00 o’clock a. m., their hours of employment depending upon when owner Eyerson, finished its work; and that they were told that they were not to interfere with the first and second shifts of owner Eyerson, and that their material had to be out of the way when owner Eyerson’s people came to work. Under cross-examination Lind testified that it would take more than 6 to 8 hours to build a scaffolding up from the floor and that it would take a whole truckload of men.

The two defendants filed third party actions against subcontractor Industrial, as third party defendant. The case was tried in the Superior Court of Cook County, and at the conclusion of all the evidence directed verdicts and judgments were entered in favor of subcontractor Industrial, third party defendant. A verdict was directed for subcontractor Industrial, as to both third party plaintiffs under the theory that the parties were joint tortfeasors and that under the Workmen’s Compensation Act there could be no action over against plaintiff’s employer. The case against the two defendants was submitted to the jury and a not guilty verdict was rendered in their favor. Post-trial motions were filed by all parties. The trial court granted a new trial in the case against both defendants and denied the post-trial motion for a new trial as to the third party causes of action. Petition for leave to appeal was denied by the Appellate Court in the original action and a direct appeal was taken to the Appellate Court in the third party actions.

The Appellate Court in Bohannon v. Joseph T. Ryerson & Sons, Inc., 16 Ill App2d 402, 148 NE2d 602 (1958), ■affirmed the judgments entered in the third party actions. Petition for leave to appeal was granted by the Supreme Court, however, and in an opinion filed on January 23, 1959, the judgment of the Appellate Court was vacated for want of an appealable order due to the absence of a certification as required by section 50 (2) of the Civil Practice Act. Bohannon v. Joseph T. Ryerson & Sons, Inc., 15 Ill2d 470, 155 NE2d 585 (1959). The cause was remanded to the Superior Court of Cook County for further proceedings. On May 28, 1958, while the matter was pending in the Supreme Court, an order was entered by the Superior Court of Cook County dismissing the case of plaintiff, as to the two defendants, settlement having been reached. The order also provided that defendants withhold $4,500 each, out of the settlement agreed upon pending disposition of the subrogation claim of subcontractor Industrial.

Upon the case being redocketed in the then Superior Court of Cook County, both third party plaintiffs filed motions to vacate the previous directed verdict as to their actions against subcontractor Industrial. The motion filed on behalf of the contractor Universal, was filed March 4,1959.

Subcontractor Industrial, did not have a lien for Workmen’s Compensation, but the Bituminous Casualty Corporation did have such a lien based upon an Intervening Petition filed by the company for payments made to and on behalf of plaintiff under the Workmen’s Compensation Act. On March 16, 1959, an order was entered dismissing the Intervening Petition of the Bituminous Casualty Corporation and vacating the order of January 11, 1956, entered in accordance with such petition. On July 2, 1959, an order was entered directing each of the third party plaintiffs to pay the sum of $4,500 to the plaintiff. On October 31, 1963, an order was entered by one of the judges of the Superior Court of Cook County vacating the verdict and judgment in favor of subcontractor Industrial, as to the third party action of Ryerson. No such order was entered as to the other third party plaintiff, contractor Universal.

The matter was assigned to another judge of the Superior Court of Cook County for trial on October 26,1964. The jury demand was withdrawn and the cause submitted to the court without a jury. The court entered an order granting contractor Universal, leave to file a Supplemental Third Party Complaint. On November 20, 1964, an Amended Third Party Complaint was filed on behalf of contractor Universal. It was stipulated that the abstract of record in cases Nos. 47,035, 47,038, 47,-101 and 47,102 filed in the Appellate Court be considered by the court as evidence. A copy of such abstract was marked “Joint Exhibit 1 in evidence.” The present abstract was taken out of “Joint Exhibit 1 in evidence” which is now a part of the Report of Proceedings. The court entered judgments in favor of each of the third party plaintiffs in the sum of $16,000 from which order third party defendant appeals.

We agree with third party defendant, subcontractor Industrial’s contention that the alleged injuries to plaintiff were not brought about by the use of a scaffold or any of the other contrivances or objects enumerated in section 60 of the Scaffolding Act.

Third party plaintiffs have offered no argument to rebut third party defendant’s contention.

Section 60 of the Structural Work Act, Ill Rev Stats (1965) chap 48, par 60, reads in part:

That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed . . . for the use in the erection, repairing, alteration, removal or painting of . . . shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person . . . engaged thereon, ....

The evidence is undisputed that plaintiff fell while standing on wire mesh, which was being installed as a base for a false ceiling for insulation purposes. Neither the strut or wire mesh was erected, constructed, placed or operated so as to give proper and adequate protection to any person engaged thereon. The strut was part of the building and the wire mesh part of the work being performed.

In an early Illinois case, Legowski v. Moreland & Co., 195 Ill App 377 (1915) the plaintiff, a laborer on a construction job, fell as he walked over some uncovered joists. An abstract decision was rendered by the Appellate Court, First District. The abstract of the decision on page 379 reads as follows:

2. Master and Servant, § 137 — when structural act inapplicable. In an action to recover for personal injuries sustained by plaintiff as a result of falling from joists across which he was walking while employed by defendant as a general laborer, instructions which ignored section 1 of the “Structural Act” (Hurd’s Rev Stats, ch 48, J & A paragraph 5368), relating to the construction of scaffolds, hoists, cranes, etc., held not erroneous for the reason plaintiff’s fall was not due to defects in any of the appliances mentioned in that statute, which had no application to the case.

The foregoing case is cited with approval in Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400 (1961). (Petition for leave to appeal denied, 21 Ill2d 622.) In the Thon case an opening or gap four feet square was left in the floor of a garage connected with a house being constructed. Workmen started to construct a form so that a concrete slab could be poured. Two two-by-eights were placed on their edges and spiked at the ends, so that plywood could be nailed to the bottom and the concrete slab poured. The bottom had not been placed in the form when the plaintiff, an electrician, stood upon one of the two-by-eights to work on a switch box on the wall of the garage. The board gave way and he fell to the bottom of the stairwell. Plaintiff recovered a verdict and judgment in the sum of $8,000, which was reversed by the Appellate Court of the Second District with the following comment on page 322:

In view of the foregoing authorities we do not feel that the cement form upon which plaintiff stood in the case at bar can be considered to be a scaffold within the meaning of the statute. We are aware of the rule that our statute should be liberally construed, but if the statute were construed so as to cover the concrete form involved in this case, such a construction of the statute would be equivalent to holding that each and every place where a workman chooses to stand thereby becomes a scaffold within the meaning of the statute. No authorities have been cited which would justify such a construction. On the contrary, the authorities discussed herein appear to be quite pertinent and lend support to our conclusion that the concrete form involved in this case was not a scaffold within the meaning of the statute. In view of this conclusion, it is not necessary for us to determine the various other questions raised by the defense.

The case of Bradley v. Metropolitan Sanitary Dist., 56 Ill App2d 482, 206 NE2d 276 (1965) adopts the reasoning of Thon v. Johnson, supra, and holds that supports, protective sheets, stays, coverings and sidings, which were installed to prevent mud and clay from falling on workers in an excavation for a drop manhole, were not structures within the Illinois Structural Work Act.

Furthermore, it is to be noted that several New York authorities are cited in the opinion of the Appellate Court in Thon v. Johnson, supra. Much of the Illinois Structural Work Act was taken from the New York Labor Laws of 1895 (Labor Laws, ch 50, art 10, sec 240, McKinney’s Consolidated Laws of New York Anno Book 50, p 207). New York authorities are, therefore, to be considered in construing the Illinois statute. In Broderick v. Cauldwell-Wingate Co., 301 NY 182, 93 NE 2d 629 (1950), the defendant was charged with not furnishing a proper scaffold. Concrete floors were to be poured in sections of steel known as “bays.” Each bay was planked over with a retaining platform or deck which was supported by shoring underneath. The plaintiff in the course of his work walked out on the deck and was caused to fall when a four-by-six supporting the deck broke. The Court of Appeals, the highest court of review in New York, held that the deck was not a scaffold under the New York Labor Law and made the following comment on page 631 of its opinion.

In the courts below it has been held that the platform which here collapsed was not a scaffold within the meaning of section 240. With this view we concur, Welk v. Jackson Architectural Iron Works, 184 NY 519, 79 NE 1116; Wright v. Smith, 152 App Div 476, 137 NYS 264; Brady v. Pennsylvania Steel Co., 134 App Div 372, 119 NYS 75; note Adelstein v. Roebling Const. Co., 95 Misc 125, 159 NYS 36. This formwork was not intended as a place of work but, on the contrary, consisted of the work itself. Cf. Burnstein v. Haas, 272 App Div 1051, 75 NYS2d 293, affirmed 298 NY 596, 81 NE2d 328.

In Ericson v. Bradley Contracting Co., 150 NYS 169, the plaintiff’s intestate stood upon a water pipe 18 feet above the bottom of the subway and was caused to fall by the pipe giving way. The court made the following statement on page 170 of its opinion:

A temporary resting place for footing or support is incidental to the performance of the work, and to call such place a “scaffold” is a wrench, not only of the language, but of the intent, of the Legislature.

In Adelstein v. Roebling Const. Co., 95 Misc 125, 159 NYS 36, the plaintiff was standing on a wooden concrete form. He was caused to fall when the form gave way. The court concluded that the “form” was not a scaffold and made the following comments on page 38 of its opinion:

The “form” which gave way below the plaintiff’s weight in the case at bar was not intended, designed, or constructed for the purpose of supporting a workman in any event or on any occasion. It was used and intended to be used exclusively as a framework to contain and hold, while hardening, a section of concrete, which, when “set” became a part of the floor. Even if the defendant, or one of its representatives having adequate authority, either permitted or authorized persons occasionally to step upon or pass over this “form,” while it might under appropriate circumstances be held for negligence in that regard, that would not change the character of the structure into a scaffold.

Here, at the conclusion of all the evidence counsel for the third party plaintiff Ryerson, moved that all the charges in the plaintiff’s Complaint with the exception of those under sections 60 and 69 of the Scaffold Act be stricken. The motion was joined in by counsel for the other third party plaintiff Universal, and was allowed by the trial court. There is no showing that any changes were made in the charges contained in the plaintiff’s Complaint at any time prior to the settlement made by the two third party plaintiffs with the plaintiff on May 28, 1958. Such settlements were made with full knowledge that the charges in both Third Party Complaints were limited to violation of sections 60 and 69 of the Structural Work Act.

There is a total failure to prove that the injuries to the plaintiff were brought about by the use of a scaffold or any of the other contrivances enumerated in section 60 of the Structural Work Act. Both third party plaintiffs, therefore, failed to prove an essential element under their Third Party Complaints.

In arriving at this result, we are aware of the decisions in cases such as Bounougias v. Republic Steel, 277 F2d 726 (7th Cir 1960), Oldham v. Kubinski, 37 Ill App 2d 65, 185 NE2d 270 (1962), Miller v. DeWitt, 59 Ill App2d 38, 208 NE2d 249 (1965), Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136 (1965). The case most favorable to third party plaintiffs is Bounougias v. Republic Steel, supra. In that case plaintiff was an employee of a painting contractor, who was painting the upper structure or ceiling of the Republic Steel Plant. He was working from an overhead crane, which ran the full length of the steel mill. While he was working on a drum of the overhead crane, one of his fellow workers in the cab of the crane, accidently pulled one of the control levers in the cab and caused the drum to start rotating. The worker on the top of the drum fell to the ground and was seriously injured. The court held that the crane, since its erection, had been used as a scaffold in maintaining the structure about it and that, therefore, this was one of the purposes for its erection. There was evidence submitted that the people at Republic Steel had repeatedly used the crane to paint or clean the top of the steel mill. Furthermore, the court found that the crane was not a permanent part of the building.

In the case at bar, we find that the struts were a permanent part of the building. Therefore we hold, in accordance with Parizon v. Granite City Steel Co., 71 Ill App2d 53, 218 NE2d 27, decided on May 18, 1966, that a permanent structure is not a structure within the terms of the Illinois Structural Work Act. Furthermore, to resolve any conflicts that may exist between the case at bar and Bounougias v. Republic Steel, supra, and the dissenting opinion in Parizon v. Granite City Steel Co., supra, we find there was no evidence submitted in the instant case to show that the struts were used on prior occasions other than to support the roof of the building and that, therefore, the use of the struts as a scaffold was not contemplated when they were installed. As we pointed out above, the wire mesh was part of the work in progress and, therefore, not a structure within the Illinois Structural Work Act.

We do not consider the other contentions raised by the parties because we find the Third Party Complaint should have been dismissed by the lower court. For the above reason, the judgment is reversed and the cause remanded with directions to enter judgment in favor of the Third Party defendant and against the Third Party plaintiffs.

Judgment reversed and the cause remanded with di- • rections to enter judgment in favor of the third party defendant and against the third party plaintiffs.

BRYANT, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BRYANT

license: Public Domain

text:
    Wabash Life Insurance Company, Plaintiff-Appellee, v. Cadillac Associates, Inc., Defendant-Appellant.
    Gen. No. 50,806.
    First District, Second Division.
    June 28, 1966.
    Rehearing denied September 12, 1966.

      Frank T. Jordan, of Chicago, for appellant.
    Zlatnik, Gaines, Boyer and Shepp, of Chicago (Eugene Shepp, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment for plaintiff entered June 18,1965, in the Circuit Court of Cook County following a trial before the court without a jury. The appellant argues that the finding of the trial court was against the manifest weight of the evidence and also that the court was in error on certain of his rulings concerning the admissibility of evidence.

The appellant is an employment agency which entered into an oral contract with the appellee insurance company to find for the company an insurance man capable of performing certain duties. Pursuant to this contract, one Robert Stack was hired by the appellee insurance company; this hiring was also done by means of an oral contract. The insurance company paid the employment agency $1,440 as a fee for finding Stack. It was understood between the insurance company and the employment agency that if Stack were to leave his employment without fault on the part of the insurance company within three months of the date of his hiring, the money was to be refunded by the agency. It is undisputed that Stack left the agency before he had been with the company three months. The only issue in this case is whether the agency was the party “at fault.”

The insurance company put on two witnesses, both officers of the company, who testified concerning the position to which Stack was hired and the duties which that position carried. They testified that to their knowledge Stack was not asked to do anything that a man in his position would not normally be asked to do. Neither man was present when the president of the company, Mr. Underwood, hired Stack.

Robert Stack was called on behalf of the employment agency and testified that he resigned his position with the insurance company because the work they gave him was not the work for which he was hired. He said that the insurance company wanted him to travel, that in fact he had made a trip for the company, but that when he took the job he specified that he did not want to travel.

The court below held that Stack had resigned without fault on the part of the appellee insurance company. This finding is not against the manifest weight of the evidence. There was testimony that Stack was hired to fill a certain position; there was testimony as to what constituted the duties of this position. Both witnesses for the appellee insurance company testified that Stack performed those duties that were normally given to a person in a similar position. The testimony of Stack, of course, differed from that given by the men from the insurance company. The court below was the trier of fact, and we will not interfere with his findings unless they are against the manifest weight of the evidence. Stachnik v. Village of Norridge, 68 Ill App2d 361, 216 NE2d 207 (1966). We do not think the appellant has sustained his burden of showing the finding of fact of the court below to be against the manifest weight of the evidence.

Next, the claim is made that the court below misunderstood the law applicable to the case at bar. The appellant points to one place in the record where the judge said, “Did he resign in this case? As far as you know, do you know whether he resigned of his own free will? Do you know whether he resigned; or was he fired?” The appellant argues from this that the court below understood the issue of the case to be solely whether Stack resigned or was fired, thereby precluding any inquiry as to whether he might have resigned due to some fault on the part of the insurance company. Yet the record shows the judge himself asked Stack about the terms of his employment insofar as what constituted his duties. This would indicate that the court below was prepared to find fault on the part of the insurance company even though Stack resigned provided the facts, in his opinion, warranted such a conclusion. We cannot assume the court below misunderstood the law. Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 210 NE2d 614 (1965).

Another error claimed by the appellant is a ruling by the court that Stack could not testify as to conversations concerning terms of employment held between him and the president of the insurance company because the president was not in the courtroom at that time. This was clearly error, but later in the proceedings, the judge called Stack back to the stand and questioned him concerning his conversations with the president of the company. Thus, the proffered evidence was admitted, and the error occasioned by the court’s original ruling was cured.

Another complaint made by the appellant is that the court refused to allow appellant to prove that the president of the insurance company had tried to get Stack a job with another insurance company. We do not think this was error. Such evidence would have no bearing on the issue before the court.

We also hold that it was not error for the court to call Stack back to the stand as a court’s witness. The appellant has cited cases where the courts have said such conduct was error under the circumstances of those particular trials. The basic reasoning underlying these decisions was the effect the judge’s action might have on a jury. In this case the court heard the evidence without a jury. It is the general rule, moreover, that even with a jury, a judge may call a witness as a court’s witness as long as his questioning does not indicate his feelings for or against any party or witness. Ill Wigmore, Evidence, § 784 (3rd Ed 1940). In this case the court asked Stack about his conversations with the president of the insurance company. This testimony had been offered earlier by the appellant but the offer was denied by the court. We have already held this was error, and that this later action by the trial court corrected the error. We cannot see how the appellant was harmed by the admission of evidence which it had sought to put in itself.

In addition, complaint is made of the conduct of the court below during the course of the trial. We have reviewed the record carefully and we do not feel that anything occurred below requiring reversal. Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

LYONS and BURKE, JJ., concur.


author: JUSTICE BURKE.

text:
    Arthur Reese and Emily Reese, His Wife, Plaintiffs-Appellees, v. Village of Mount Prospect, a Body Politic and Corporate, Defendant-Appellant.
    Gen. No. 51,028.
    First District, Second Division.
    June 28, 1966.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (Jack M. Siegel and R. Marlin Smith, of counsel), for appellant; Harry G. Fins, of Chicago, for appellees.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Appellee, v. Willie E. Pruitt, Appellant.
    Gen. No. 50,915.
    First District, Second Division.
    June 28, 1966.
    Edward M. Levin, Jr., of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gerald P. Kincy, Defendant-Appellant.
    Gen. No. 50,067.
    First District, Third Division.
    June 30, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John J. Van Zeyl and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Sameis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a conviction of robbery after a bench trial in which he was sentenced to the penitentiary for a minimum of five years and a maximum of ten years.

Defendant contends that he was not proven guilty beyond a reasonable doubt, and points out that the single identification of the defendant was vague, doubtful and uncertain.

The facts are these:

Willa Mae Land, the victim of the robbery, testified that she was a clerk in the Pekin Cleaners at 40th and Vincennes Avenue in the city of Chicago, and was so employed on February 8, 1964. That on said date a man entered the store and said, “Give me your money.” She then walked over to the cash register and got out the bills, singles, and asked him if he wanted the change, to which he replied, “Yes.” The man had his hand in his jacket and it looked as if there was something inside his jacket which she didn’t see. He then left because someone was coming in the store. She further testified that as the defendant was walking out “a customer and a lady came in and I told them that I had just been held up.” The man who had entered the store didn’t say anything but went out. This occurred at about 3:00 o’clock in the afternoon. She next saw the man who didn’t say anything but just walked out, about twenty minutes later with the police and with the defendant. After the holdup she called the police and told them that she had been held up by a tall, thin, brown-skinned man; that he had on a jacket and a hat, and that he was in his early thirties. That the man she identified about twenty minutes later had on a jacket and a hat. This witness also testified that the man, whom she had told she had just been robbed, had been in once and brought in a suit about the day before and was coming after this suit. When asked about the color of the jacket that was worn by the man who held her up, the witness answered, “I think it was beige or brown, beige looking. I am not positive.” A police officer asked her to check the cash register to determine how much money had been taken. She stated that she was so excited at the time the police asked for this amount that she got it all mixed up. She checked the cash again about 7:30 p. m., which was four and one-half hours after the robbery, and determined that $18 was missing. She said she saw the man in court, indicating the defendant.

Police Officer Joe Clark testified that on the date of the robbery he had gone to 55th and South Park because a man told him and his partner that he “just had followed a man which had just held up his mother in the cleaners.” The man who made that statement pointed out the defendant. Officer Clark saw the defendant entering a gasoline station at that location and Officer Clark and his partner arrested the defendant in the station. The defendant was searched, which resulted in finding one-dollar bills, some change and a straight razor. The money, amounting to $11.70, was inventoried. The defendant and the person who had pointed out the defendant, and the two officers then returned to the location of the Pekin Cleaners. Officer Clark also testified that it was about fifteen to sixteen blocks from 40th and Vincennes, the scene of the occurrence, to 55th and South Park, the place of arrest, and that at the time of the arrest the defendant did not have an automobile.

Police Officer Elliot Muse, Clark’s partner, was called as a defense witness. He testified that the lady who worked at the cleaning store identified the defendant. “I believe it was her. I am not sure.” He further testified that the woman identified the defendant “according to his jacket.” She told them it was the same kind of a jacket the fellow had on that robbed her. He also stated that at the time of the arrest he saw defendant counting change on a table and that the defendant said he had won the money shooting dice in the alley.

Defendant’s mother, Lacy Campbell, testified that she resided at 3339 Giles Avenue, and that on the date mentioned she and the defendant left her home between 2:40 and 2:45 p. m.; that she had driven him to 55th and South Park. The trip took fifteen or twenty minutes. She further stated that the defendant was going to the El station to meet his daughter, and that after taking the defendant to the named location she returned to her home for a short time and left for work about 3:30, arriving at work at 4:00 o’clock. She further stated that she worked the 4:00 p. m. to 10:00 p. m. shift; that the defendant’s daughter was eighteen and an unemployed housewife, and was going to meet her father between 3:00 and 4:00 p. m., and that the defendant asked the witness to drive him to the El Station. The defendant was living with his mother at the time. He was a barber and cut hair at home. The defendant was going to meet his daughter to give her some money. She dropped the defendant off on South Park across Garfield Boulevard on the southwest corner.

The defendant, Gerald P. Kincy, testified that he resided at 3339 Giles Avenue in Chicago; that he was a registered barber and was so employed at the time of his arrest, and that his place of business was at his mother’s home. He further stated that on February 8, 1964, his mother drove him to 55th and South Park where he was going to meet his daughter at the El station at 55th between South Park and Prairie. His reason for meeting his daughter was that he was going to give her some money because she had an infection and was in the latter stages of her pregnancy. When he left his mother’s car he walked into the gas station and asked the attendant to convert some change into dollar bills, because he did not want to give his daughter a lot of change. He further stated that he had approximately $5 in change and was arrested as soon as he placed the money on the counter. The straight razor which was found in his possession was owned by him. It had a small nick in it and since he had no facilities for sharpening the razor, he intended, after meeting his daughter, to proceed to a friend’s barbershop at 63rd and St. Lawrence to get the razor sharpened in order to service his Saturday customers. He further testified that he was taken to the Pekin Cleaners where Officer Muse said to Mrs. Land, “Don’t you recognize him?” and Mrs. Land, according to the defendant, stated that she did not recognize him but recognized the jacket. The police then gave him a receipt for the razor and $11.70 taken from him. The money consisted of six $1 bills and the rest change. He testified that he charged $1.50 for cutting hair and sometimes would have a lot of change; that the money taken from him was receipts from his barbering business.. He further testified that he was never in the Pekin Cleaners; that the police arrested him a minute after he left his mother’s car and that on the day in question he had on a black hat and green jacket. The record also indicates that at the time of trial the defendant had a very prominent black moustache.

It is the contention of the defendant that the single identification of the defendant was vague, doubtful and uncertain, and that the only reasonable inference to be drawn from the testimony of Officer Muse is that the defendant was identified through association of the jacket. The complaining witness, Mrs. Land, did not at any time testify that she had seen the defendant’s face, nor did she testify to any of his features. The record is not clear as to whether at the time of the defendant’s arrest he had a “very prominent black moustache,” but the record does indicate that he had such a moustache at the time of the trial. If the defendant had such a moustache on the day of the occurrence, that would have been something that could not normally have been overlooked. At the time of the testimony of Mrs. Land she stated that the defendant was the one who robbed her, however, in her description to the police, given shortly after the robbery, she failed to mention that the defendant had a moustache. The failure to introduce testimony as to whether or not such a prominent identifying feature as this large moustache was or was not being worn by the defendant at the time of the arrest is difficult to understand. It is also difficult to understand why the complaining witness did not testify that she had seen the face of the robber. Her testimony relating to identification, other than the conclusion that she identified the defendant, was regarding the color of the jacket and the hat worn by the robber, and she was not positive as to the color of the jacket, although she positively testified that the color of the hat was brown. The defendant testified that he was wearing a green jacket and a black hat on the day of his arrest. Officer Muse, likewise, testified that the complaining witness identified him “according to his jacket.” No testimony of any witness for the State was offered to show any facial characteristic of the defendant.

In People v. Jones, 24 Ill2d 71, 74, 179 NE2d 620, the court said:

“The defendant argues that the identification of the defendant was based only upon the fact that he was wearing a light colored jacket and argues that this type of evidence is insufficient to establish defendant’s guilt beyond a reasonable doubt. The identification by Young is subject to this criticism and if his testimony were the only identification testimony in the record, we would not hesitate to reverse the judgment of conviction. However, even if his testimony is disregarded, there remains the positive testimony of the complaining witness that she clearly saw the defendant’s face at close range and that she recognized him by the freckles on his face, as well as his clothing.”

As previously stated, the complaining witness in this case did not state that she saw the defendant’s face, or that she recognized him by any other characteristic than the color of his jacket, about which she was not positive, and the color of his hat. There was no corroborating testimony on the question of identification and police officer Muse supported this testimony that the entire identification by the complaining witness was based upon the color of the jacket, about which she was not positive. In her description given to the police Mrs. Land said nothing about the face of the man who robbed her. Mrs. Land testified that she was so nervous after the event that she could not check out the cash register to determine the amount that was taken, and after several unsuccessful attempts to find out how much money had been taken she waited four and one-half hours in order to arrive at the amount of $18 which was missing. It is entirely possible that she was so frightened at the time of the robbery that she watched only the pocket in which the robber’s hand was holding some object.

The distance between the place of the robbery and the place of arrest is fifteen or sixteen blocks. The man who supposedly followed this defendant, and who has been described as the man customer and the son of Mrs. Land was never produced. He, according to the testimony of one of the police officers, advised them that his mother had just been robbed. The complaining witness described him as a customer. In view of the alibi offered by this defendant it would appear to have been incumbent upon the State to produce this witness. The defendant testified he had never been in the store. If this witness had followed the defendant from the cleaning shop for fifteen or sixteen blocks, the defendant’s alibi would be worthless. The defendant and his mother testified that she had driven the defendant from his home to the place where he was arrested, and the defendant testified that he was arrested one minute after he had been dropped off by his mother, some fifteen or sixteen blocks away from the cleaning shop. This fact is undisputed by any testimony in the record other than that of the complaining witness, who identified this defendant only because of his jacket. Likewise, because the identification was based solely upon the jacket, and the hearsay testimony of Officer Joe Clark relating to what the “man customer” or “son” told him, it is, to say the least, vague and uncertain. Where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, it will be reversed. People v. Fiorita, 339 Ill 78, 170 NE 690; People v. Kidd, 410 Ill 271, 102 NE2d 141.

While the identification and whereabouts of the defendant at the time of the crime are questions for the jury, yet where from the entire record there is reasonable doubt as to the guilt of the accused a judgment of conviction cannot be permitted to stand. People v. Ricili, 400 Ill 309, 79 NE2d 509; People v. Gold, 361 Ill 23, 196 NE 729.

In People v. McGee, 21 Ill2d 440, 173 NE2d 434, the complaining witness identified the defendant from five or six men in a police lineup. On cross-examination the complaining witness stated that he had been shown a jacket after the lineup and admitted saying in a prior hearing that he was not positive as to the defendant’s identification until he had seen the jacket. The jacket upon which he admittedly rested his identification was not introduced in evidence at the trial. The court on page 445 said:

“Taken in conjunction with the uncontradicted evidence of an alibi, which is neither improbable nor such as taxes credulity, we are of the opinion there was not such positive identification here which fairly or reasonably supports the conviction.”

In the instant case the jacket upon which identification is based was not introduced in evidence. The uncontradicted evidence of the alibi does not tax credulity. Because of the disparity in the amount of money taken and the amount of money found in the defendant’s possession, the failure of the State to produce a witness who allegedly followed the perpetrator of the crime for some fifteen or sixteen blocks, and the failure to produce any identification testimony of any witness who testified he or she had seen the face of the perpetrator of the crime, we conclude that there was not such positive identification which fairly or reasonably supports the conviction.

Judgment reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Gerald Van Bussum, Plaintiff in Error.
    Gen. No. 50,598.
    First District, Third Division.
    June 30, 1966.
    Rehearing denied September 12, 1966.

      Edward B. Lane, of Westmont, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant, Gerald Van Bussum, was indicted and tried for the offenses of involuntary manslaughter and reckless homicide, and was found guilty by a jury of involuntary manslaughter. Defendant’s motion for a new trial and motion in arrest of judgment were denied and the court entered judgment upon the verdict of the jury. Defendant was sentenced to the Illinois State Penitentiary for a term of not less than one nor more than five years.

The contentions of the defendant on appeal are: (1) That the instruction given by the court in regard to involuntary manslaughter was faulty in that it failed to require a showing of criminal liability by not including wilful and wanton conduct as the basis for said offense; (2) that it was error to allow the State to display, throughout the trial, an unopened gin bottle and an empty whiskey bottle, in full view of the jury; (3) that the court erred in denying a request made by him during the course of the trial to have his fingerprints compared with those on the empty whiskey bottle; (4) that the court erred in allowing a witness to testify, after an alleged order entered separating witnesses was violated; (5) that he was denied the right to impeach the credibility of certain witnesses after he offered to prove their bias and hostility.

The facts adduced on behalf of the State are: Arthur Vogel, a friend of the defendant, testified that on February 12, 1962, at approximately 7:00 p. m., the defendant picked him and David Schlosser up in defendant’s auto, and the three proceeded to a liquor store in Justice, Illinois. There they obtained three bottles of ginger ale, one fifth of whiskey, and one small bottle of gin. Vogel subsequently admitted that the whiskey and gin had been stolen from the store. According to Vogel, they then went to the driveway of a friend, where they parked the auto, opened the bottles of whiskey and ginger ale, and drank highballs. They each had approximately one-third of the fifth of whiskey, and there were two or three ounces left in the whiskey bottle when it was thrown out of the auto.

At about 9:00 p. m. they went for a ride through Willow Springs, Illinois. Vogel testified that the defendant drove on Route 83 at times at about 105 miles per hour, and drove off the road several times. He stated that he yelled at the defendant to slow down. He was taken home at approximately 10:00 p. m.

David Schlosser, the other passenger, corroborated the testimony of Vogel as to the obtaining and drinking of the liquor. He stated that they each had about one-third of the whiskey. Schlosser testified that the defendant traveled at about 70 to 75 miles per hour on Route 83; that he told the defendant to slow down, and that the defendant might have gone off the road a couple of times. He was then dropped off by the defendant.

The accident in question occurred when defendant’s auto struck that of Helmut Priedigkeit at the corner of the north-south street of Roberts Road and the east-west street of 71st street. The victim was seriously injured and subsequently died as a result of the crash. Roberts Road is a two-lane avenue divided by a white line. The streets were clear and dry, though snow was piled on the shoulder of the road.

Immediately preceding the accident, traveling north on Roberts Road, was a Cook County Sheriff’s police car, a Village of Bridgeview police car, and a red Buick. The defendant passed all three of these cars at a high rate of speed. Police Officer Nispuruk of Bridgeview testified that the defendant was going 85-90 miles per hour, and the defendant passed him going north on the officer’s left, that is, in the lane normally used for southbound traffic. A Cook County Sheriff’s police officer, Homer Lander, said he was passed at 85-90 miles per hour, and the driver of the red Buick testified that the defendant passed him at 80-90 miles per hour.

Immediately after the defendant passed the Bridgeview police car, Nispuruk turned on his red mars light, as did also the sheriff’s officer, and both gave chase to defendant’s auto. Nispuruk testified that defendant never righted himself (i. e. got back into the north-bound lane), nor did he slow down, prior to the collision. The defendant struck the victim’s Cadillac with such force that the Cadillac just “blew up” in the words of Nispuruk.

The victim was making a left turn from 71st street to go south on Roberts Road when he was struck by defendant. The defendant’s auto was straddling the white line in the center of the road when it hit the victim’s auto. The center of the Cadillac on the driver’s side was “crushed beyond description,” according to Officer Nispuruk.

Officer Nispuruk testified that he observed the defendant get out of his auto after the collision and throw away an empty ginger ale bottle. Further, he noted that the defendant walked unsteadily and that he detected a liquor smell on the defendant’s breath. When Officer Nispuruk searched defendant’s auto he found two empty ginger ale bottles and a full gin bottle.

Officer Lander testified that defendant’s auto passed him at a very high rate of speed, about 85-90 miles per hour, northbound on Roberts Road at about 10:45 p. m. on the night in question. He immediately put on his mars light and took off after the defendant. The defendant then collided with the auto of the victim. After the impact Officer Lander saw the victim bloody and badly injured, and heard the screams of two little children who were pinned in the auto. Lander testified that after the accident the defendant got out of his car and said, “Oh, my beautiful engine.”

Winan Dressel, driver of the red Buick that was also northbound on Roberts Road, said that the defendant passed him by about 80-90 miles per hour, and that his car “rocked” as the defendant sped by.

Edward Jonatis, the son-in-law of the victim, testified that he was driving immediately in front of the victim on 71st street prior to the accident. He had turned left at the intersection of Roberts Road and 71st street, and proceeded south on Roberts Road. He then saw a set of headlights bearing down upon him, and flashing red lights in the distance. The headlights came upon him so quickly that he was forced to turn his auto toward the shoulder of the road to avoid the oncoming auto. He estimated the speed of the oncoming auto at 90 miles per hour, and stated that it missed him by “less than inches.” The speeding auto straddled the white line in the center of the road. The next thing he heard was a big crash.

The defendant was charged with reckless homicide, driving under the influence of alcohol, and passing within 100 feet of an intersection. He was not charged with speeding.

The evidence adduced on behalf of the defendant was: Lisle Van Bussum, father of the defendant, testified that his son had alcohol in the radiator of his auto at the time of the accident. The type of brake fluid which was in his son’s auto smelled like alcohol. He stated that he never saw his son drinking. George Streich, who lived two doors away from the defendant, testified that he was a mechanic and that the constituent parts of brake fluid were alcohol and glycerin. The defendant testified that there was no liquor in his auto on the night of February 12, 1962, and that he never touched the empty whiskey bottle found by the police. (People’s exhibit #1.) He stated that at that time he would be willing to have his fingerprints compared with those on said bottle. The objection of the State to this test was sustained by the trial judge. The defendant testified that he only went 70 miles per hour on Route 83. The defendant stated that after he passed up the two squad cars on Roberts Road the victim pulled out from 71st Street and stopped right in front of him. He said that he was going 45 miles per hour on Roberts Road, the speed limit, and after passing the squad cars was back in the proper traffic lane. The defendant then put on his brakes but it was too late to stop. He denied making the statement “Oh, my beautiful engine.”

On cross-examination the defendant stated that he was not a drinker, and did not mean to previously say that he never drank. When confronted with a statement that he had made at a coroner’s inquest to the effect that he drank intoxicating liquors in the presence of his parents, the defendant admitted that this was true, even though defendant’s father testified that he never saw his son drink. Subsequently the defendant stated again that he never drank.

Several character witnesses testified that they were acquainted with the defendant and that they knew his reputation for truth and veracity and that they would believe him under oath.

We cannot agree with the contention of the defendant that the State’s instruction pertaining to the offense of involuntary manslaughter was erroneous. Defendant argues that this instruction was faulty since it did not require a finding of wilful and wanton conduct as a basis for manslaughter. The complained of instruction read, in part:

“. . . if you believe . . . from the evidence that the defendant . . . caused the death of Helmut Preidigkeit without lawful justification while the defendant was in the commission of acts, whether lawful or unlawful, which were likely to cause the death or great bodily harm to some individual, and that such acts were performed recklessly, and if you further believe that the death was the direct result of such acts on the part of the defendant, then under such circumstances the defendant would be guilty of the crime of involuntary manslaughter. . . .”

This instruction was proper since it was given in the language of the statute on involuntary manslaughter. This statute provides in part that:

“ (a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Ill Rev Stats 1961, c 38, par 9-3.)

The defendant himself admits that this instruction was within the language of the statute. Since the statute does not contain any reference to “wilful and wanton” conduct, and since the instruction conformed to said statute, the instruction was correct. (People v. Rongetti, 344 Ill 278, 176 NE 298, where the court sustained an instruction for involuntary manslaughter since it was within the language of the statute.) Further, the Committee Comments to paragraph 9-3 of chapter 38 discuss the offense of involuntary manslaughter and the mental state element of this offense. (Committee Comments, Smith-Hurd Anno Stats 1961, c 38, § 9-3, pp 525-532.) At page 529 it is stated: “The words used by the court to describe the mental-state element of this offense have varied, recklessness being used interchangeably with gross negligence, willful or wanton negligence, and criminal negligence. . . .” (Citing cases.) Without entering a lengthy legal discussion concerning the offense of involuntary manslaughter, we merely note that under the Committee’s view, as formulated by past court decisions, a specific finding of wilful and wanton conduct is not necessary to convict a party of said offense since recklessness, as contained in par 9-3, and as defined in par 4-6, has been used interchangeably with the phrase wilful and wanton.

Also, the defendant offered, and the court gave, an instruction on involuntary manslaughter which read, in part: “Where a person with wilful and wanton negligence disregards the safety of others and runs over another and kills him, even though unintentional, it will be manslaughter.” Thus, by defendant’s own theory of the law, the jury was adequately instructed. (People v. Simmons, 407 Ill 417, 95 NE2d 477.)

The defendant next argues that it was error for the court to allow the State to display, throughout the trial, an unopened gin bottle and an empty whiskey bottle, both in full view of the jury. He cites the case of Smith v. Ohio Oil Co., 10 Ill App2d 67, 134 NE2d 526, for the proposition that if evidence is used for emotional appeal to the jury, rather than for a factual explanation, it is error. An examination of that case, however, leads us to the conclusion that the trial court in this case was correct in allowing the display and the introduction into evidence of the bottles. The court, in discussing real and demonstrative evidence, stated at page 76: “As a result, the use of such evidence is usually left to the discretion of the trial court. . . .” In the instant case the testimony of several witnesses for the State indicated that the whiskey bottle, when empty, had been discarded from the defendant’s auto and later picked up by the police, and that a full gin bottle was found in his auto immediately after the accident. These two bottles were directly involved in the State’s case, and were thus properly admitted and displayed.

The admission and use of this evidence was within the discretion of the trial court. It is reviewable only in cases of an abuse of such discretion, or when such evidence is irrelevant or immaterial, or when it is used principally for its emotional effect. (People v. Jenko, 410 Ill 478, 102 NE2d 783; Smith v. Ohio Oil Co., supra.) We do not feel that the two bottles were irrelevant or immaterial, nor were they used for their emotional effect.

Similarly, it was also not improper for the trial court to refuse the offer of the defendant, made during the course of his direct examination at the trial, to have his fingerprints compared with those on the whiskey bottle. The record reveals no earlier request by the defendant to examine the bottle, nor any request for facts as to fingerprints on the bottle. The record does reveal that the whiskey bottle had been handled by the prosecution at various times during the course of the trial, and no doubt by other persons between the time of arrest and trial. Certainly the trial court was aware of this when it properly rejected the offer of defendant to have the bottle tested for fingerprints. If the defendant was eager to compare his fingerprints with those on the bottle he should have availed himself of such opportunity at an earlier time.

A further assignment of error is predicated upon the refusal of the court to exclude the testimony of the witness Schlosser since said witness allegedly violated an order of the court which instructed witnesses not to discuss the case with anyone during court recesses. After one such recess, counsel for the defendant informed the court that he saw Schlosser coming back from lunch with Vogel, a witness who had previously testified. Counsel thereupon asked that the testimony of Schlosser, the next witness, be excluded on the ground that he had communicated with another witness after the court warned him not to do so. The trial court denied this motion and made it quite clear that its order had not been violated since it did not order the witnesses not to communicate with each other, but only to refrain from discussing the case with anyone during a recess. Further, the court told defendant’s counsel that he would be permitted to ask Schlosser whether he had discussed the case with the previous witness. Schlosser subsequently stated on cross-examination that he had not discussed the case with Vogel. Under these facts we find no error in the decision of the trial court to allow the witness to testify.

The last contention of the defendant is that the court erred in denying him the right to impeach the credibility of certain of the State’s witnesses with prior statements made to the police. We have examined the entire record and find that the defendant, although presented with ample opportunity to impeach said witnesses, failed to do so.

The defendant also makes the point that he was prejudiced by the refusal of the court to allow into evidence an offer of proof that the Bridgeview police were biased against the defendant. In our view, • the court properly refused this offer of proof since no foundation was laid for its admission, and no connection was apparent between the offer and the instant case.

For the foregoing reasons, the judgment against the defendant is affirmed.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    Jo Ann Powell, by Anna Belle Powell, Her Mother and Next Friend, Plaintiff-Appellee, v. Norman E. Goldman, Administrator of the Estate of Rudolph Shepherd, Deceased, Defendant-Appellant.
    Gen. No. 50,436.
    First District, Third Division.
    June 30, 1966.
    George F. Barrett, of Chicago (Donald J. Duffy, of counsel), for appellant; Leonard M. Ring, Earl E. Strayhorn and Jack Ring, of Chicago (Leonard M. Ring, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: SMITH, J.

text:
    Frederick R. Pefferle, Plaintiff-Appellee, v. Prairie Mills, Inc., an Illinois Corporation, and Frank W. Young, Defendants-Appellants.
    Gen. No. 10,727.
    Fourth District.
    June 30, 1966.

      Frank W. Young and Daniel F. Zahn, both of Springfield, and Jack A. Alfeld, of Carrollton, for appellants.
    Frederick R. Pefferle, pro se, of Springfield, appellee.
   SMITH, J.

Defendants appeal from a summary, judgment entered against them for $2,705.45 for unpaid attorney fees and from the refusal of the trial court, on motion, to set such judgment aside. Procedural sparring over several months leaves us with basically only one question: Was there a genuine issue of a material fact which would preclude summary judgment? We think not.

Plaintiff’s complaint alleged his employment by defendant Young as president of defendant corporation to represent it and him individually in certain litigation; their agreement to pay a “fair and reasonable charge” for such services and reimburse for costs; the performance of the services; that there was a balance due of $2,905.45 and defendants refusal to pay. Defendants by general denial denied the employment as alleged; denied the performance ; denied the balance due, and denied the refusal to pay. Plaintiff moved for summary judgment, supported by an affidavit detailing the employment; the services rendered; the payments made on account together with dates and amount; attached four statements as exhibits detailing the precise services rendered; the day on which rendered, and the balance due on services and out-of-pocket expense.

Insofar as pertinent, defendants’ affidavit in opposition reads as follows:

“. . . That the Affidavit does not cover the agreement entered into by and between the Plaintiff and the Defendant for legal services.
“That a flat fee was agreed upon between the parties, and that said fee has been paid in full before this suit was filed.
“That for the above facts, the Defendant has a good and valid defense to this action.”

A casual reading of this affidavit demonstrates its failure to comply with Supreme Court Rule 15, Ill Rev Stats 1965, c 110, § 101.15, which requires that affidavits in support of or in opposition to a motion for summary judgment shall:

“. . . be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. . . .”

It is quite clear that plaintiff’s complaint and affidavit is a solid foundation for summary judgment unless the defendants have somewhere somehow raised a genuine issue of a material fact. Defendants’ affidavit avers that they have a “good and valid” defense without informing the trial court or this court what that defense is. If the defense is a flat fee contract, it does not appear in the answer, its existence is only asserted in the affidavit in opposition to summary judgment and its terms appear only in the defendants’ brief. If the defense is payment, it is not affirmatively pleaded as required by Civil Practice Act § 43 (4), Ill Rev Stats 1965, c 110, § 45(2), nor is the amount, time or method of such payment shown anywhere except in appellants’ brief. In their briefs, they argue they had a right to be heard on the reasonableness of plaintiff’s fee and argue it here. Nowhere in the abstract of the record does it appear that this issue was ever presented to the trial court. Factual or legal issues not presented to or considered by the nisi prius court are “men without a country” when they appear in briefs in this court and are so treated. We are a reviewing court and not a nisi prius court. For this same reason, we cannot review the rule entered on the defendant Young to show cause why he should not be adjudged in contempt of court. This appears to still be under advisement in the trial court.

The complaint and answer standing alone perhaps do raise genuine triable issues of material facts. But in the face of a motion for summary judgment, this is not sufficient. Where the movant in support of his motion supplies facts which, if uncontradicted, entitles him to judgment, the opposing party cannot rely alone on his complaint or answer even though the complaint and answer standing alone do present a genuine issue of a material fact. Walsh v. Monumental Life Ins. Company, 46 Ill App2d 431, 197 NE2d 124; St. Louis Fire & Marine Ins. Co. v. Gamier, 24 Ill App2d 408, 164 NE2d 625. Pleading allegations fade away in the face of uncontradicted evidentiary facts entitling the movant to judgment or decree. The readily apparent reason for this rule is that if pleading allegations are sufficient to raise a genuine issue against uncontradicted evidentiary facts contained in an affidavit, the usefulness of summary judgment is effectively placed in a straightjacket. See 1955 Revisions Joint Committee Comments, Ill Rev Stats Ann c 110, § 57.

The facts which it is now said were a defense must have been known to the defendants when they filed their answer. They were not pleaded. They must have been known to the defendants when their affidavit in opposition to the motion for summary judgment was filed. They were not stated. The opportunity to create a genuine issue of a material fact was open. Defendants have no proper complaint if the appropriate vehicles are not employed by them to present their claimed defenses. Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill App 465, 34 NE2d 736. We thus conclude that the trial court had before it in this record no genuine issue of a material fact which precluded summary judgment. Its judgment is affirmed.

Affirmed.

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