author: MORAN, P. J.

text:
    Thomas E. Phillips, Plaintiff-Appellant, v. Herbert Lawrence, Defendant-Appellee.
    Gen. No. 66-133.
    Fifth District.
    September 6, 1967.
    Durr & Durr, of Edwardsville, for appellant.
    Burroughs, Simpson & Burroughs, of Edwardsville, for appellee.
   MORAN, P. J.

Plaintiff appeals from a judgment of the Circuit Court of Madison County in the amount of $750, claiming he was awarded inadequate damages in his suit.

Plaintiff alleged that he was injured when the car he was driving was struck in the rear by a car driven by defendant, while plaintiff was stopped waiting to make a left turn; he further alleged that the defendant “(d)id manage and drive his vehicle at the time and place at a speed of more than 65 miles per hour in violation of the laws of this state.” Defendant admitted the allegations of plaintiff’s complaint, admitted that the plaintiff suffered injury as a result of the collision, but denied the nature and extent of the injuries.

Plaintiff, in his opening statement to the jury, attempted to tell the jury that there was no denial of the fact that the defendant was driving his car in excess of 65 miles per hour when it struck plaintiff’s car which was stopped. Defendant objected to any argument concerning the speed of defendant’s car, contending that the only issue before the jury at that time was the nature and extent of plaintiff’s injuries. He asked the court to instruct the jury to disregard any statement made by plaintiff’s attorney concerning the speed of defendant’s car.

The trial court then recessed the trial and retired to chambers where an intensive argument was heard concerning this issue. Plaintiff’s attorney argued that defendant’s admitted speed had a direct bearing on the force of the impact to plaintiff’s car and that the force of the impact was relevant in determining the nature and extent of plaintiff’s injuries. The trial court ruled that the rate of speed of the defendant’s car was not admissible and that any objection to questions that plaintiff would ask relating to speed would be sustained during the trial.

After the court reconvened the court instructed the jury that “(t)he first order of business is, the Jury is instructed that the reference to the speed of sixty-five miles per hour made by Mr. Durr in his opening remarks is not a proper subject for discussion at this time in view of the fact that the question of liability is admitted and the sole question is to the extent of the injuries, if any, so that the Jury is instructed to disregard the statement. You may proceed.”

Plaintiff testified that his car was struck from behind by defendant’s car and propelled across a ditch at a speed of 35 miles per hour. While plaintiff’s attorney was interrogating plaintiff, he cautioned plaintiff not to go into the speed of defendant’s car as the judge had ruled this inadmissible. At one time during plaintiff’s interrogation, plaintiff’s attorney asked plaintiff, “How fast was your car moving at the time of the collision?” He withdrew this question on objection of defense counsel.

Plaintiff testified that he was 56 years of age at the time of the accident and 59 at the time of the trial; that he had been employed in construction work at Granite City Steel Company for the past fifteen years; that his work consisted of running jack hammers, air hammers, digging ditches and pouring concrete. He further testified that the condition of his health before the accident was good; that he was never bothered by neck trouble, shoulder trouble or headaches before the accident; that since the accident he has had a continuous problem with his neck, shoulders and headaches at work. The evidence indicated that he lost about $200 in wages and incurred $170 in medical expenses.

The sole question is whether or not exclusion of the evidence of the speed of defendant’s automobile was reversible error.

Is evidence of speed, physical impact and the like, admissible as relevant to the probable extent of personal injuries when liability is fully admitted? Neither counsel have cited, nor has this court found any Illinois authorities bearing directly on this question. However, the weight of authority in other jurisdictions is that evidence of the circumstances surrounding an accident is admissible where relevant to the probable extent of personal injuries. See authorities cited in 80 ALR2d 1228-1230.

Plaintiff sought to prove that defendant’s car was travelling at an admitted speed of more than 65 miles per hour when it struck his car which was stopped, waiting to make a left turn. He claims that this evidence was relevant as it would tend to have some bearing on the nature and extent of his injuries, iteleyancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable. To be probable it must be tested in the light of logic, experience and accepted assumptions as to human behavior. Marut v. Costello, 34 Ill2d 125, 214 NE 2d 768. Both logic and experience indicate that a person in a stopped car, struck by another car going at a speed in excess of 65 miles per hour, is more likely to receive more serious injuries than one similarly situated who is struck by a car going at a much slower speed. Under the circumstances, we believe the evidence of the speed of defendant’s car was admissible as having some bearing on the extent of the injuries suffered by plaintiff and that it was error of the trial court to exclude this evidence.

Was rejection of this evidence reversible error? Plaintiff lost about $200 in wages and $170 in medical expenses. In addition, for a period of three years he has suffered a considerable amount of pain and discomfort as a result of the accident. Under these circumstances, we cannot say that the jury would not have awarded plaintiff more than the sum of $750 if the plaintiff had been permitted to prove the defendant’s speed and resultant force with which his car was struck by defendant. Defendant argues that the evidence of the speed was actually before the jury because the plaintiff testified that his car travelled over an open ditch at a speed of 35 miles per hour. However the jury were informed at the very beginning of the trial that the speed with which defendant’s car struck that driven by plaintiff had no relation to plaintiff’s injuries. Plaintiff’s attorney convincingly argues that this ruling compelled him to change his whole trial strategy throughout the case.

Where error is shown to exist, it will compel reversal unless the record affirmatively shows that the error was not prejudicial. Duffy v. Cortesi, 2 Ill2d 511, 517, 119 NE2d 241; Shore v. Turman, 63 Ill App2d 315, 323, 210 NE2d 232. In our opinion the record does not affirmatively show that the exclusion of the speed of defendant’s car from the evidence was not prejudicial.

For the foregoing reasons, the judgment of the lower court is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ\, concur.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    Lynn H. Cate, Plaintiff-Appellee, v. Pagel-Clikeman Co., Inc., an Illinois Corporation, M. Lamont Clikeman and Ralph M. Dickman, Defendants-Appellants.
    Gen. No. 66-109.
    Second District.
    September 25, 1967.
    Rehearing denied October 26, 1967.

      Miller, Thomas, Hickey and Collins, of Rockford, for appellants.
    Williams, McCarthy, Kinley and Rudy, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This case involves forty shares of the common stock of Pagel-Clikeman Co., a farm implement dealer in the City of Rockford. Kenneth Pagel, the President and owner of one-third of the stock, being the forty shares now in issue, died leaving the stock to Barbara A. Welch and Mary J. Murphy. On March 22,1960, those parties entered into an agreement with the corporation wherein they sold their stock to the corporation for $20,000, $8,000 in cash and $2,000 on April 1 of each year following, with interest on the unpaid balance. The contract further provided that the stock would be assigned to the corporation when fully paid and that during the period of the contract the assets of the corporation would not be sold other than in the ordinary course of business and that those assets and the corporate inventory would be maintained at their customary level. The corporation agreed to furnish monthly statements and further agreed that if it desired to sell its business the sale would be made so as to assure the selling shareholders of payment. The contract concluded by providing that a breach would “entitle” the selling shareholders “. . . to declare a forfeiture thereof and to retain all monies paid hereunder and to sell any part or all of said stock held by them to make the balance due, . . .” The contract further provided that “. . . in the event it becomes necessary or proper for second parties (here the selling shareholders) to employ attorneys, or to institute suit, to enforce the terms hereof, it is understood and agreed that first party will pay second parties’ necessary and reasonable attorneys’ fees, costs and expenses incurred by them in enforcing this agreement, and in connection therewith.”

As of September 30, 1960, the defendant corporation had an earned surplus of $107,704 reflecting a book value per share of $1,000 or $40,000 for the shares now in controversy.

Following the death of Pagel the two individual defendants became the principal officers of the corporation. They both lent money to the corporation and this was repaid to them.

After the agreement to buy its own shares the corporate defendant fell upon hard times. It lost its farm implement franchise and, finally, in August, 1963, sold the balance of its inventory and equipment at public auction. Thereafter, it repaid the individual defendants for their loans.

In August, 1962, the contract in question was assigned to the plaintiff. However, he received no communications from the defendants despite the fact that they held stockholder meetings during the period in question. Finally, in January of 1964 the plaintiff received a letter from the defendant corporation stating that it would not be able to complete its contract for the purchase of his stock.

Subsequently, the plaintiff brought this suit to obtain specific enforcement of the agreement and for attorney’s fees and for judgment against the individual defendants to pay any deficiency to the extent they receive sums from the sale of the tangible assets of the business.

The trial court found that the agreement was valid and a binding obligation and directed the corporate defendant to perform the contract and pay attorney’s fees in the sum of $1,900. In addition the trial court directed the individual defendants to account to the plaintiff for any sums left unpaid by the corporate defendant out of monies paid to them after the auction sale by the corporate defendant.

All defendants appealed, raising three issues. First, that the contract was ultra vires and void. Second, that the contract provided for forfeiture as its exclusive remedy, and third, that the corporation was solvent and none of the defendants had committed any fraudulent acts.

In pursuing their first theory the defendants draw our attention to section 6 of the Business Corporation Act (Ill Rev Stats 1965, c 32, § 157.6), which provides, in part, as follows: “Power of a corporation to acquire its own shares. A corporation shall have power to purchase, take, receive, or otherwise acquire, hold, own, pledge, transfer, or otherwise dispose of its own shares, provided that it shall not purchase, either directly or indirectly, its own shares when its net assets are less than the sum of its stated capital, its paid-in surplus, any surplus arising from unrealized appreciation in value or revaluation of its assets and any surplus arising from surrender to the corporation of any of its shares, or when by so doing its net assets would be reduced below such sum.” The defendants argue that this is the only method by which a corporation may purchase its shares and therefore the contract is ultra vires and void.

The statute on its face merely grants permission to a corporation to invest in its own shares, the only prohibition being when its net assets are less than its stated capital and surplus or when the purchase would reduce the net assets below the capital and surplus. Subject to this limitation, a corporation may, if it acts in good faith, buy and sell shares of its own stock. Kelly v. McCormick-Murray Mfg. Co., 201 Ill App 308, 313 (1916). The evidence is clear that at the time of the agreement the corporation had an earned surplus of $107,704. The contract obligated it to pay the sum of $20,000, leaving a substantial balance in the surplus account. The court found that there was no violation of the statute, that the corporation had the right to purchase its own shares, and that the contract was not ultra vires. The trial court was correct in that respect.

The defendant’s next point is that forfeiture was the exclusive remedy. The parties are bound by their own written understanding and this court is bound to observe that understanding. The contract itself provides that a default shall “entitle” the plaintiff to declare forfeiture. The contract further provides that in the event it became necessary or proper for the plaintiff “to employ attorneys or institute suit to enforce the terms hereof” (emphasis ours) that the defendant corporation would pay the plaintiff the necessary and reasonable attorney’s fees, costs and expenses incurred by him in enforcing the agreement. Without regard to the position that the defendants now take, it is clear that when the parties made the agreement they contemplated that forfeiture was not an exclusive remedy, but merely a remedy in addition to the right to enforce the agreement. As evidence of that we point to the further agreement of the parties that should it be necessary to enforce the agreement, the plaintiff was entitled to receive his attorney fees.

It does not seem to us that the parties could have expressed themselves more clearly. It is obvious that the plaintiff was entitled to a performance of the contract and to receive the promises made by the defendants. The parties themselves agreed that should the plaintiff be required to enforce those promises, then the plaintiff would be entitled to receive his attorney’s fees. The trial judge so ruled and we can find no basis upon which to disagree with his findings.

The defendants last point in this court is that the corporation was still solvent at the time of the trial though with funds inadequate to pay the plaintiff, and that neither the corporation nor the individual defendants had committed any fraud. The facts indicate that, following the making of the contract, the business of the corporation steadily declined. It ultimately lost its franchise and conducted an auction sale of its remaining assets. The sale was conducted without the benefit of any notice to the plaintiff and apparently the sale produced sufficient assets to pay off the loans owed to the individual defendants who were shareholders and directors of the corporation.

The contract provided that the plaintiff would be entitled to monthly statements showing the operations of the business. These were not furnished. The contract further provided that, if the corporate defendant sold its business, it would make arrangements to pay the plaintiff. Again, this was not done.

It would be a strange rule of law if the majority shareholders in a corporation could avoid an agreement with another shareholder simply by driving a corporation into insolvency. This is particularly true where the majority shareholders receive all of the funds due them and the only person left unpaid is the minority shareholder who is kept in ignorance of the corporate activities.

The corporation had a contractual duty to report to the plaintiff and to make arrangements to pay him if the business was sold. The majority shareholders were the officers and active directors of the corporation. The majority shareholders, as active directors of the corporation, and the corporation failed to report and pay the plaintiff, the minority shareholder. Thereby, the majority directors personally profited by their failure. This is not unlike those cases which hold that the directors of an insolvent corporation are trustees for the creditors of the corporation, and that a director who is also a creditor of the corporation cannot lawfully procure or receive any advantage or preference in the payment of his claim at the expense of other creditors. Beach v. Miller, 130 Ill 162, 170, 22 NE 464 (1889); Roseboom v. Whittaker, 132 Ill 81, 87, 88, 23 NE 339 (1890); and Mayr v. Hodge & Homer Co., 78 Ill App 556, 564 (1898).

In the case at bar the individual defendants repaid themselves over $15,000, thus reducing the corporate assets below the amount due the plaintiff. They then caused the notice to be sent to the plaintiff saying that they could no longer honor their contract. The only reason they could no longer honor their contract was because they had repaid themselves. The whole structure of corporations within our State would totter if such were the law.

We conclude that the trial court was correct in requiring the individual defendants to account to the plaintiff for the sums paid to them by the corporation to the extent necessary to repay the plaintiff, after the exhaustion of the corporate assets, the balance due on the contract plus attorney’s fees. The judgment is therefore affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: MR. JUSTICE O’SULLIVAN

text:
    Sally D. Dear, Appellant, v. Ralph C. Dear, Appellee.
    Gen. No. 66-135.
    Second District.
    September 26, 1967.
    Rehearing denied October 31, 1967.
    Sally Dear, pro se of Wheaton, appellant.
    Corrigan and Mackay, of Wheaton, for appellee.
   MR. JUSTICE O’SULLIVAN

delivered the opinion of the court.

This is an appeal from an Order, entered in the Circuit Court of DuPage County on October 28,1966, which Order provided that during the following periods of time on certain specific dates the defendant, Ralph C. Dear, shall have the sole custody and control of the minor children of the parties hereto, setting up in the Order said dates, on which the said Ralph C. Dear should have the sole custody and control of the minor children. This Order expired by its own terms on February 4, 1967, and consequently the matter in controversy is now moot.

In the case of Railway Exp. Agency, Inc. v. Illinois Commerce Commission, 374 Ill 151, 28 NE2d 116, the court in referring to Dinsmore v. Southern Express Co., 183 US 114, 46 L Ed 111, stated at page 156:

“It was held that inasmuch as the subject matter of the dispute had been legislated out of the act, the order of the railroad commission, if originally valid, ceased to have any effect. The principle applied in the Dinsmore case has application here.
“The duty of the Court in the exercise of its power of appellate review is confined to consideration of actual controversies, cases in which the judgment can be given effect. It is not required to give opinions upon moot questions or matters that, by reason of the changes in the law, it is unnecessary to decide.”

The same principle was also followed and approved in Northtown Bank of Decatur v. Becker, 45 Ill App2d 112, at page 127, 195 NE2d 404, as follows:

“For the reasons, herein expressed, we are of the opinion that an actual controversy, which is essential to the appeal jurisdiction, does not exist. Accordingly the appeal is dismissed.”

Appeal dismissed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: JUSTICE TRAPP.

text:
    Charles A. Rutledge, Plaintiff-Appellee, v. Chism, Incorporated, a Delaware Corporation, Defendant-Appellant, and Charles J. Gilbert, d/b/a Gilbert Trucking and Excavating, Defendant-Appellee.
    Gen. No. 10,813.
    Fourth District.
    September 26, 1967.

      Heyl, Royster, Voelker and Allen, of Peoria (Lyle W. Allen, of counsel), for appellant;
    Horsley, Vespa and Lott, and Olsen, Cantrill and Miller, of Springfield, for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.


author: CREBS, J.

text:
    City of Girard, an Illinois Municipal Corporation, Plaintiff-Appellee, v. Girard Egg Corporation, a Delaware Corporation Licensed To Do Business in Illinois, Defendant-Appellant.
    Gen. No. 10,832.
    Fourth District.
    September 28, 1967.
    Rehearing denied October 25, 1967.

      McGrady & Madden, of Gillespie, for appellant.
    Phelps, Russell & Boyle, of Carlinville (Kenneth R. Boyle, of counsel), for appellee.
   CREBS, J.

The City of Girard brought an action for violation of ordinances and to enjoin a public nuisance. After hearing, defendant was perpetually enjoined from operating its business within the City of Girard. This appeal followed.

The defendant, Girard Egg Corporation, had previously successfully defended a criminal charge of maintaining a public nuisance. It contends that the finding of not guilty in the criminal case is determinative of this case under the doctrine of res ad judicata. The difference in the quantum of proof required in criminal and civil cases is sufficient answer to the claim of res ad judicata. Furthermore, even a finding in a civil suit that the defendant was not maintaining a public nuisance in 1963 would not be decisive of the question of whether or not it was maintaining a public nuisance in 1966.

Appellant contends it was improperly denied a trial by jury. The gist of this action was a suit in equity to enjoin a public nuisance. The judgment of the court was that the injunction should issue. There is no right to a jury trial on the question of whether or not an injunction shall be granted. Lazarus v. Village of Northbrook, 31 Ill2d 146, 199 NE2d 797.

The principal contention of appellant appears to be that this was a private rather than a public nuisance. While there was a conflict in the testimony of the witnesses concerning the operation of the Girard Egg Corporation and its effect on persons in the neighborhood, the trial court has the basic responsibility of determining this conflict.

Numerous witnesses testified for the City that the operation of the Girard Egg Corporation caused foul and obnoxious odors in their homes, particularly in warm weather; that they had been bothered with large quantities of flies attracted to the neighborhood by reason of the operation of the egg business; that on occasion chunks of manure were spilled into the street by trucks coming from the Girard Egg Corporation; and that on occasions some of them became nauseated and ill. The trial court heard and observed all the witnesses and, as evidenced by its judgment, found the testimony of plaintiff’s witnesses worthy of belief. The trial court further found that the Girard Egg Corporation was unable or unwilling to correct the situation when given an opportunity to do so. There is competent evidence to support this finding.

The ordinances in question provide that a chicken house which shall remain in an offensive or unwholesome condition, or keeping poultry in a place which becomes nauseous, foul, or offensive, shall be a nuisance.

We find no basis to disturb the trial court’s finding that the operation of the Girard Egg Corporation was a public nuisance under the ordinances.

Injunction is a proper remedy to abate a public nuisance. City of Chicago v. Fritz, 36 Ill App2d 457, 184 NE2d 713.

Appellant also contends that Ordinance No. 455 is unconstitutional. Count III of the complaint which contained the only reference to this ordinance was stricken on appellant’s motion before hearing. No cross appeal was taken as to this action; hence this ordinance is not involved in this appeal.

Finding no error judgment is affirmed.

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


text:
    Sally D. Dear, Plaintiff-Appellant, v. Ralph C. Dear, Defendant-Appellee.
    Gen. No. 67-15.
    Second District.
    September 28, 1967.
    Rehearing denied October 26,1967.
    Sally D. Dear, pro se, of Wheaton, appellant.

      No briefs filed or appearance made in behalf of appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff-appellant, Sally D. Dear, has brought and orally argued this appeal pro se. The defendant-appellee, Ealph C. Dear, neither filed answering briefs nor appeared for oral argument. This in and of itself would warrant the court in reversing the orders appealed. (Carlson v. Oberling, 73 Ill App2d 412, 413, 218 NE2d 820 (1966); Morella v. Melrose Park Cab Co., 65 Ill App2d 175, 212 NE2d 106 (1965)). However, the appellant, who we assume to be a lay person without legal training, deserves more than a perfunctory disposal of her problem after her arduous labor.

A chronological review of the record is necessary in order to understand the factual background upon which this appeal is based.

It seems that on October 28,1966, an order was entered by the trial court setting forth specific dates on which the defendant was to have the sole custody and control of the minor children of the parties hereto. The plaintiff attempted to have the order vacated but was unsuccessful and on November 16, 1966, she filed her notice of appeal from said order. This appeal was heard and decided by this court in the case entitled Dear v. Dear, 87 Ill App2d 72, 230 NE2d 385, General No. 66-135.

After filing of her notice of appeal, the trial court on November 22, 1966, prior to the decision in case No. 66-135 of this court, vacated the order of October 28, 1966, and thereafter, on November 28,1966, entered a new order. The latter order, instead of allowing custody and control of the children of the parties to the father on certain specific dates, granted the defendant the right of visitation on set dates commencing November 27, 1966, to and including February 4,1967. The order also allowed the defendant the right to remove the children from the home of the plaintiff. On December 14, 1966, a new Notice of Appeal was filed, wherein the plaintiff stated that she was appealing from both the order of November 22, 1966, and the order of November 28, 1966.

On this appeal she contends, and rightfully so, that when she filed her Notice of Appeal on November 16, 1966, the trial court lost jurisdiction to vacate its order of October 28, 1966, from which she was appealing. See City of Chicago v. Myers, 87 Ill2d 470, 227 NE2d 760 (1967).

The trial court was without jurisdiction to vacate the order of October 28, 1966, and therefore, the order of November 22, 1966, entered by the trial court vacating the order of October 28, 1966, is hereby reversed.

We now come to the order of November 28, 1966, wherein the defendant was granted the right of visitation, not custody or control, as to his children on certain specified dates and times. The plaintiff claims that the trial court was without jurisdiction to enter this order because her notice of appeal from the order of October 28, 1966, took away any jurisdiction that the court had, relative to the case in the future. We do not agree; however, there is no need to decide this point. Since the order expired by its own terms on February 4, 1967, there is no relief that this court may grant with reference to it. National Jockey Club v. Racing Commission, 364 Ill 630, 631, 5 NE2d 224 (1936); Maywood Park Trotting Ass’n v. Illinois Harness Racing Commission, 15 Ill2d 559, 563, 155 NE2d 626 (1959); Dear v. Dear, 87 Ill App2d 72, 230 NE2d 385, General No. 66-135 (1967). The dates in the order, since they have passed, have become moot and therefore, the appeal from the order of November 28, 1966, is dismissed.

Reversed in part; dismissed in part.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: JUSTICE DOVE.

text:
    James Spurgeon and Norma Spurgeon, Plaintiffs-Appellees, v. Kent-Reber Real Estate Company, Inc., Jerald E. Kent, Patricia L. Kent, and Madison County Federal Savings & Loan Association, a Corporation, Defendants-Appellants.
    Gen. No. 66-119.
    Fifth District.
    October 2, 1967.
    Morris B. Chapman and Roy W. Strawn, of Granite City, for appellants;
    Nick D. Vasileff, of Madison, and Gilbert Rosch, of Granite City, for appellees.
   Opinion by

JUSTICE DOVE.

Not to be published in full.


author: JUSTICE EBERSPACHER.

text:
    Commonwealth Loan Company, a Corporation, Plaintiff-Appellee, v. James W. Baker, Defendant-Appellee, and General Steel Industries, Inc., a Corporation, Garnishee-Appellant.
    Gen. No. 66-137.
    Fifth District.
    October 2, 1967.
    Rehearing denied October 26, 1967.
    Lueders & Robertson, of Granite City, for appellant;
    Hoagland, Maucker, Bernard & Almeter, of Alton (James K. Almeter, of counsel), for appellee.
   Opinion by

JUSTICE EBERSPACHER.

Not to be published in full.


text:
    Raymond Landolt and Alice Landolt, Plaintiffs-Appellees, v. Donald Stratmann, d/b/a Stratmann Lumber Co., Defendant-Appellant.
    Gen. No. 66-85.
    Fifth District.
    October 3, 1967.
    Rehearing denied October 31, 1967.

      Durr & Durr, of Edwardsville, for appellant; James E. Buchmiller, of Greenville, for appellees.
   Opinion by

JUSTICE EBERSPACHER.

Not to be published in full.


text:
    Gregory P. Wegler, a Minor, by Leila I. Wegler, His Mother and Next Friend, Plaintiff-Respondent, v. E. Fred Luebke, Defendant-Petitioner.
    Gen. No. 66-123.
    Second District.
    October 4, 1967.
    Rehearing denied November 28, 1967.

      Rathje, Woodward & Dyer, of Wheaton, for appellant.
    Peregrine, Stime & Henninger, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

On May 20, 1964, eleven-year-old Gregory P. Wegler, referred to as plaintiff herein, was riding his bicycle to a Little League baseball game. He was traveling north on West Avenue in Elmhurst, Illinois, and as he was making a left turn to cross the southbound lane of traffic to enter the park, he was struck by defendant’s southbound automobile.

Suit was filed for the boy’s injuries in a complaint which charged negligence and freedom from contributory negligence in one count and wilful and wanton misconduct and freedom from contributory wilful and wanton misconduct in the second count.

At the conference on instructions the plaintiff contended that there was no evidence of any contributory wilful and wanton misconduct on the part of the plaintiff and therefore the instructions as to the wilful and wanton count should omit reference to the possibility of plaintiff’s contributory wilful and wanton misconduct. The trial court ruled against plaintiff at the conference, refused plaintiff’s instructions which omitted the contributory wilful and wanton issue, gave a court’s instruction which stated the issues in the pleadings (including the issue of contributory wilful and wanton misconduct) and gave defendant’s instructions defining contributory wilful and wanton misconduct along with stating the propositions to be proved by the plaintiff.

After a general verdict of not guilty and an appropriate post-trial motion, the trial court determined that error had been committed by the giving of the instructions regarding contributory wilful and wanton conduct and granted a new trial.

We allowed this petition for leave to appeal and the case comes before us on the sole question as to whether or not the trial court should have instructed the jury on the issue of the defendant’s wilful and wanton conduct and the plaintiff’s contributory wilful and wanton conduct.

The evidence pertaining to the facts of the accident came from three witnesses; the plaintiff, the defendant and a police officer.

The police officer who investigated the accident testified that the boy was found about forty-eight feet south of the automobile skid marks and that the bicycle had already been moved. He stated that at the police station he tested the brakes on defendant’s automobile and noticed the pedal went all the way to the floor. He hit the pedal several additional times with the same result. He then pumped the brakes and noticed at that time that the pedal came within one inch from the floor.

The eleven-year-old plaintiff testified that he was a member of a baseball team and was on his way to play a game at 6:00 o’clock in the evening; that the park was located about two miles from his home on the west side of West Avenue; that he was wearing a team uniform and had a baseball glove on the handlebars of his bicycle; that he was wearing Little League baseball shoes with rubber cleats; that as he proceeded north on West Avenue there was a train crossing the Illinois Central tracks; that the bells were ringing and four or five cars had already stopped; that he brought his bicycle to a stop near the crossing gate; that after the train passed by he proceeded ahead riding at the extreme right-hand edge of the northbound lane; that several northbound cars which had stopped for the train passed on ahead; that as he approached the park another northbound car passed him and was some fifty or sixty feet ahead of him when he crossed the center line.

He testified that he did not look for oncoming traffic before he turned but as he crossed the center stripe he saw a glimpse of defendant’s southbound car just a little before the impact. His next recollection was lying in the street after the accident. There was a sidewalk on the east side of the street and curbing at the edge of the street. There was no sidewalk on the west side of the street. The boy had never been told to ride on the sidewalk at this location. The boy acknowledged that there was nothing in front of him to obstruct his view to the north for oncoming traffic. He testified that he had made a left-hand turn signal with his arm before making the turn.

The defendant was twenty-nine years old and employed in Chicago. He owned a 1958 Chevrolet automobile which had registered approximately fifty thousand miles at the time of the collision. He testified that he had new brake. linings put on in Chicago a year and a half before the accident and the other part of the brakes were checked at that time. He stated that six months before the accident his brakes were adjusted at a filling station and he did not notice anything unusual about his brakes. After the accident he continued to drive the car without noticing any need for repairs to the brakes.

The accident happened while on his way home from work taking his usual route. He had been southbound on West Avenue for a block and a half and was traveling at the posted speed limit of twenty-five miles per hour. There was a car about 200 feet ahead of him. He observed several northbound vehicles and, after the last of the cars passed, he saw the boy northbound about fifty feet away. He saw the boy turn sharply in front of him and he applied his brakes. He left twenty-seven feet of skid marks and brought the car to a halt after striking the boy. He said his car traveled a few feet after contact before it came to a stop and that in his opinion the vehicle was moving about five miles an hour at the time of the impact.

A minor over the age of seven is required to use that degree of care which a reasonably careful person of the same age, intelligence, capacity and experience, would exercise under the same or similar circumstances, Wolczek v. Public Service Co., 342 Ill 482, 497, 174 NE 577 (1931); Skaggs v. Junis, 27 Ill App2d 251, 260, 169 NE2d 684 (1960). A minor over the age of seven, may thus, under certain circumstances, be guilty of negligence or contributory negligence. It follows that, under certain circumstances, a minor over the age of seven may be guilty of wilful and wanton or contributory wilful and wanton misconduct. The question here is whether, under the circumstances of this case, the eleven-year-old plaintiff’s actions were such as to present a question of fact for the jury to determine with reference to wilful and wanton contributory conduct.

We do not hold an eleven-year-old on a bicycle to the same standard of care as an adult motorist. Conway v. Tamborini, 68 Ill App2d 190, 197, 215 NE2d 303 (1966). However, when a child over seven is old enough to use a bicycle on the public roadways as a means of transportation he is under the duty to refrain from conduct which, by reasonable standards, would be considered negligent or wilful and wanton, as the case may be, in the light of the minor’s age, experience and capacity.

The making of such a determination is a function for the jury unless the facts are so clear as to justify a decision as a matter of law by the court. We do not feel the facts of this case justify taking the issue from the jury.

Here the boy crossed the northbound lane and was entering the southbound lane before making any effort to observe oncoming traffic. Such conduct by an adult motorist would clearly raise a wilful and wanton conduct question. City of Lake Forest v. Janowitz, 295 Ill App 289, 293-294, 14 NE2d 894 (1938); Schachtrup v. Hensel, 295 Ill App 303, 313, 14 NE2d 897 (1938); Willmann v. Jargon, 37 Ill App2d 380, 382, 185 NE2d 702 (1962). We do not feel that the case of an eleven-year-old bicycle rider is so different as to require a different ruling as a matter of law. The finding of the jury should stand and the order for a new trial should be reversed.

Reversed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


text:
    Iona Woodrick, Plaintiff-Appellee, v. Smith Gas Service, Inc., a Corporation, and Systematics, Inc., Defendants. Appeal of Smith Gas Service, Inc., Certain Defendant-Appellant.
    Gen. No. 66-133.
    Second District.
    October 4, 1967.

      Thomas and Kostantacos, of Rockford, for appellant.
    Robert K. Clark, of Page & Clark, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

In February, 1965, the plaintiff was driving a 1964 Thunderbird automobile along Route 51 approaching the city of Mendota. The car was equipped with a device called the “Auto-Start,” installed by the defendant, Smith Gas Service, Inc., and manufactured by the defendant, Systematics, Inc. The purpose of the device was to automatically start and stop the car to maintain engine temperatures during periods when the car was unattended. A component part of the device was a so-called bead chain leading from a solenoid to the throttle lever. As originally installed the chain was in two parts connected by a small bolt and nut. This arrangement was changed by the defendant, Smith Gas Service after the plaintiff’s husband experienced a locking of the accelerator on the car. The husband did not tell plaintiff of this experience and simply had the car repaired.

As the plaintiff was driving along the highway, she passed a truck and then let up on the accelerator to return to her proper lane. The car did not slow but, instead, continued to speed up. Plaintiff applied her brakes and then the emergency brake, but the car kept going faster. Plaintiff sounded the horn so as to alert other cars and pedestrians. The plaintiff completely removed her foot from the accelerator but the car went faster and faster. In this condition, plaintiff entered the city of Mendota at over 100 miles per hour, struck an automobile and, finally, ran up a light pole. The engine continued running at full speed causing the rear wheels to dig five-inch holes in the ground.

As a result of the accident, plaintiff suffered severe injuries which are not here in question and brought suit against both defendants under the theories of negligence, breach of implied warranty and absolute liability. A jury absolved the manufacturer, Systematics, Inc. and rendered a verdict against Smith Gas Service in the sum of Twenty-One Thousand Five Hundred Dollars ($21,500). The defendant, Smith Gas Service, brings this appeal and advances various theories which will be discussed in turn.

The defendant’s first theory is that the trial court erred in refusing to exclude the testimony of plaintiff’s experts based upon tests and experiments with the car made some time after the accident. This court recognizes that the ideal situation would be to make tests at the time of the accident, but the practical difficulties inherent in accomplishing such timing have caused a rule to evolve which is that such tests and experiments are admissible, even though made after an accident, upon a prior showing that there has been no change in circumstances or conditions. As was said in La Salle Nat. Bank v. Feldman, 78 Ill App2d 368 (1966), 223 NE2d 180, at page 372, “Testimony based on an inspection after the event in question is not competent unless evidence is also introduced to show that the conditions inspected had remained unchanged in the interim.”

In this case, the garageman who towed the car from the scene of the accident and stored the vehicle in his garage, testified that between the time of the accident and the removal of the car from his establishment, which included the time of taking photographs, the car remained in the same condition as it was at the time of the accident. Plaintiff supplied these photographs and three expert witnesses testified on her behalf to various tests and experiments made by them while the car was so stored. They testified that the condition of the car as shown in the photographs was the same as the condition of the car when they made their experiments. They testified further that the bead chain was so located as to cause it to hook or catch when the accelerator was depressed, thereby in effect locking the accelerator and causing the car to speed out of control. It is interesting to note that the defendant presented its own expert who testified to a contrary conclusion based upon experiments which were taken some time after the accident. We do not view this as a waiver of defendant’s objections or as a circumstance which would relieve the plaintiff of the burden of laying a proper foundation by showing that the same conditions existed at the time of the accident and at the time of the experiments. From an examination of the record in this case, which includes the testimony of the garageman, we conclude that there was no change of conditions and that the plaintiff laid a proper foundation thereby permitting him to offer expert testimony based upon subsequent experiments.

The defendant’s next point is that it was error to permit passengers in the plaintiff’s automobile to testify about their injuries since they were not plaintiffs in this case. There were four passengers in the automobile in addition to the plaintiff. All testified to the details of the accident and mentioned that they had been injured. They did not detail their injuries. No objection was made to the testimony of three of these passengers and the defendant apparently only made objection to that type of testimony from one of the passengers. We are not confronted with a situation where the witness presented great detail about her injury. That would not be admissible because it was not an issue in the case and could conceivably inflame the jury. However, as was said in Budek v. City of Chicago, 279 Ill App 410 (1935) at page 421 “. . . the death of other occupants of the automobile was an incident of the accident under consideration. We are of the opinion that all the facts occurring at the time were proper to present in evidence.” The witness simply testified to the circumstances of the accident and to the fact that she was injured. That is also a circumstance. Since no details were furnished there was no error in admitting the testimony. (Redmond v. Huppertz, 71 Ill App2d 254,217 NE2d 85.)

Defendant’s next point concerns the refusal of the trial judge to admit certain moving pictures of the tests conducted by defendant’s experts. In this connection the trial judge said,

“I think it would be only cumulative evidence, as far as the tests being taken. If they were taken under the same circumstances the two witnesses have testified to, you have had a full line of testimony as to the installation and the chain. As to what they did and what tests they performed, you have had that opportunity.”

At this point in the trial the jury had heard from three expert witnesses on behalf of the plaintiff and two on behalf of the defendant. Each testified in detail as to the condition of the chain and the various experiments with the operation of the device. The only purpose of the evidence offered by the defendant was to graphically depict all of the evidence previously admitted. One difficulty with the motion pictures was that they showed tests made on a different automobile. There was testimony to the effect that the conditions were the same but there was no testimony that the “Auto-Start” device was installed in the same manner. The motion pictures themselves were not made a part of this record. We have had no opportunity to view them. The trial judge has broad discretion in permitting evidence of a merely cumulative nature and we cannot say that that discretion has been abused in this case.

The defendant’s next point is that the plaintiff’s case is based upon circumstantial evidence and that the jury could not possibly have reached their conclusion based upon the circumstances presented. The defendant does not, and could not, say that a case may not be based upon circumstantial evidence. The defendant does argue, however, that the jury’s conclusion from the circumstances presented must be a reasonable one, Holsman v. Darling State St. Corp., 6 Ill App2d 517, 523, 128 NE2d 581 (1955). If we took just a portion of the defendant’s testimony then, perhaps, it could be said that the jury’s conclusion was not reasonable. However, the jury took the case as a whole and so must we. In so doing, we cannot say that the jury reached an unreasonable conclusion based upon the evidence presented.

Certain special interrogatories were presented by the defendants. The defendant first objects that the trial judge improperly advised the jury that the interrogatories had been prepared by the defendant. Any such comments by the trial judge were not preserved in the record and are not properly before us.

The defendant next argues that the jury’s answer to one of the interrogatories was inconsistent with their general verdict. There are two interrogatories in question. The first, “Did the injury of the plaintiff, if any, result from an unreasonably dangerous condition of the product known as the ‘Auto-Start’?” The jury’s answer was no. Second “Was there any condition on or about the device known as the ‘Auto-Start’ which was unreasonably dangerous at the time it left the control of Smith Gas Service, Inc. ?” The jury answered yes. The jury simply found that the device itself was not dangerous but that the installation by the defendant, Smith Gas Service, Inc. had caused the difficulty. As a result the defendant, Systematics, was absolved.

As was pointed out by the Supreme Court in Sommese v. Maling Bros., Inc., 36 Ill2d 263 (1966) at page 267, 222 NE2d 468: “. . . the function of a special interrogatory is to require the jury’s determination as to one or more specific issues of ultimate fact and is a check upon the deliberations of the jury. ‘Special interrogatories are used for the purpose of testing the general verdict against the jury’s conclusions as to the ultimate controlling facts.’ Wise v. Wise, 22 Ill App2d 54, 58.”

In this case the jury’s answers to the special interrogatories were perfectly consistent with their general verdict and indicate clearly that they understood the issues presented to them.

The defendant next argues that the trial court erred in giving one of plaintiff’s instructions and failing to give a similar instruction on behalf of defendant. The instructions involve the issues of the case as set forth in the pleadings and the particular point in controversy is whether or not the plaintiff’s husband had actually purchased the “Auto-Start” device. Defendant admits that he made the purchase but that his employer paid for the device. Defendant then argues that no implied warranty arose because the husband did not actually pay for the device. The record is clear that the husband personally made the purchase and we do not think it fatal to his theory that his employer actually paid the bill. In addition, the theory of implied warranty in these cases is no longer grounded entirely upon privity of contract. See Suvada v. White Motor Co., 32 Ill2d 612, 618-619, 210 NE2d 182 (1965). The trial court did not err in failing to give defendant’s instruction.

Finally, the defendant argues that the plaintiff was guilty of contributory negligence as a matter of law and that the jury verdict is clearly against the manifest weight of the evidence. Here the plaintiff sounded her horn, applied her brakes and even applied the emergency brake. She did not shift the car into neutral and she did not turn off the ignition key. The question presented is whether or not a reasonably prudent person should have done so as a matter of law under the circumstances presented. We have had occasion to consider this question many times. A few examples are Sterba v. First Federal Savings & Loan Ass’n, 77 Ill App2d 380, 222 NE2d 547, and McCann v. City of Waukegan, 83 Ill App2d 284, 227 NE2d 558 (1967). We have no right to substitute our judgment for that of the jury unless their verdict is so clearly against the manifest weight of the evidence as to require reversal. A review of the entire record before us indicates that their decision was reasonable and one that could be reached by fair minded persons. The judgment is therefore affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: TRAPP, J.

text:
    Paula Swickard Leming, Plaintiff-Appellee, v. Glenn Oltman, Defendant-Appellant.
    Gen. No. 10,833.
    Fourth District.
    October 5, 1967.
    Rehearing denied and opinion modified November 2, 1967.

      Craig and Craig, of Mattoon (Jack E. Horsley, Kichard F. Record, Jr. and Fred H. Kelly, of counsel), for appellant.

      Brainard & Bower, of Charleston (J. Leeds Bower, Henry E. Kramer, and H. Ogden Brainard, of counsel), for appellee.
   TRAPP, J.

Defendant, Glenn Oltman, appeals from a judgment entered upon a jury verdict in favor of the plaintiff, Paula Swickard Leming, for personal injuries in the amount of $15,875.

It is contended that the trial court erred in refusing to direct a verdict in favor of defendant, in refusing a judgment notwithstanding the verdict and denying his motion for a new trial. Error is also claimed as to certain instructions.

Plaintiff was a guest in an automobile driven by a fellow student, Rudy Ketchie, in an easterly direction on Route 16 between Mattoon and Charleston. As it travelled at a speed of 45-50 miles per hour this car was struck at the left rear by the right front of defendant’s vehicle. The highway is a four-lane concrete pavement divided by a median between the respective east and west lanes. At the point of the collision, it extends generally east and west and is described as being essentially straight and level. The night was clear and the pavement was dry.

Following the impact, the Chevrolet in which plaintiff was riding went over the shoulder and striking the bank at the right front fender, turned end for end and rolled one and one-half times. It came to rest on its top with the front pointed to the southwest some 55 yards from the point of impact. Defendant’s Chevrolet, as measured by the State Highway Police, travelled 342 feet beyond the Ketchie automobile and 66 feet into a field, as measured from the highway.

We are called upon to consider two aspects of the evidence. The record discloses that the defendant stated upon several occasions that he had apparently fallen asleep: in a statement to a State Policeman at the scene of the accident; in a statement made in the presence of Rudy Ketchie, Ketchie’s parents and plaintiff’s parents at the Charleston hospital; in a telephone statement to plaintiff while the latter was in the hospital the first week after the accident; in a statement made in answer to written interrogatories filed May 11, 1965, two years after the accident, and in a deposition taken May 22, 1965.

On the trial, defendant repudiated the statements that he had been asleep prior to the accident. Based upon a reflection that the only thing he could then remember after passing the Blaw-Knox factory, about 5 miles west of the scene, defendant reasons that he does not believe he could have been asleep for five miles on a road that has some curves and some dips.

Testimony was elicited hypothetically from Dr. Lewis E. Adkins, a general practitioner in Charleston, Illinois, that a person in defendant’s circumstances who had received a blow on the head “very possibly could have been suffering from retrograde post-traumatic amnesia.”

Upon this aspect of the evidence, the jury could well have found that defendant was asleep at the time of the impact. There is nothing inconsistent with being asleep at the time of an accident and being a victim of retrograde post-traumatic amnesia, if, in fact, he was. The hypothetical question that was asked included an assumption that the person was not drowsy. The jury could have found that the prior statements of the defendant, that he was, or apparently was, asleep were correct, and that the hypothetical question to the doctor was therefore inapplicable. Amnesia would not establish what actually happened, but only that defendant could not account for the events. If he was not asleep or drowsy, the jury could properly have concluded from the facts in evidence that defendant was negligent.

Plaintiff’s host, Rudy Ketchie, testified that the lights of the car were lighted. He was not asked, either on direct or cross-examination, concerning the taillights as distinguished from the headlights. Plaintiff testified that she had driven earlier that evening, that the lights worked and the turn signals functioned. She also testified that immediately prior to the impact, the car in which she was riding had its lights on. She did testify that she could not state from actual observation that the taillights of the car in which she was riding were lighted at the time of collision. By reason of such record, defendant argues that there was no evidence of negligence on the part of the defendant justifying the submission of the case to the jury.

The jury could well find the action of the defendant in overtaking and running into the rear of the automobile in which plaintiff was riding to be negligent, even if its taillights were not lighted. For all practical purposes, the control of the situation was with the defendant and, assuming that the driver of plaintiff’s car was guilty of contributory negligence, it would be immaterial to plaintiff’s right to recover unless such negligence could be found to be the sole cause of the collision. We cannot say, as a matter of law, that under such circumstances, the absence of taillights is necessarily the sole cause of the collision. Again, there is actually no evidence that the lead car’s taillights were not working. When Ketchie testified that his lights were on, it was within the province of defendant’s counsel to inquire whether he observed both front lights and taillights. The jury had evidence, which taken most favorably to the plaintiff would authorize a finding that the lead car’s taillights were turned on at the moment of impact.

The trial court did not err in refusing to direct a verdict for the defendant, or in refusing to order a judgment notwithstanding the verdict.

Complaint is made that the jury was informed of the presence of liability insurance in the case, so that the trial court should have granted a motion for mistrial. An affidavit was filed that one Thomas Burke, who was not connected with the case in any way, spoke to defendant’s counsel in a restaurant during the trial at a point where four jurors could have heard him, and said, “Well, Mr. Horsley, I know you’re putting up a good fight for your insurance company.” Mr. Burke’s testimony varies somewhat. He stated that he was talking to a friend who asked him if there was any money to be made fighting an insurance company and he, Mr. Burke, said to his friend, “I don’t know, I suggest you ask Mr. Horsley.” Mr. Burke then said in a loud voice to Mr. Horsley, “Mr. Horsley, this man asked me if there’s any money to be made in fighting an insurance company.” According to Mr. Burke, Mr. Horsley looked startled and Mr. Burke terminated the conversation.

We have examined the several authorities cited by the defendant, including Rutherford v. Bentz, 345 Ill App 532, 104 NE2d 343, which states that injection of insurance before a jury might be grounds for reversal; McCarthy v. Spring Valley Coal Co., 232 Ill 473, 83 NE 957, which states that injection of insurance by counsel is reversible error; Clark v. Hasselquist, 304 Ill App 41, 25 NE2d 900, which states that it is error for counsel to persist in showing that a statement was taken by an agent of an insurance company; Carlson v. Healey, 69 Ill App2d 236, 215 NE2d 831, which states that counsel’s comments on insurance in rebuttal argument constituted prejudicial error; Guardado v. Navarro, 47 Ill App2d 92, 197 NE2d 469, which discusses the possibility of an exception to the rule where one is seeking to show the person taking the statement had an interest in the defense, and Kavanaugh v. Parret, 379 Ill 273, 40 NE2d 500, where the court found that counsel unnecessarily and improperly injected insurance in the voir dire examination. We have also examined the annotation in 4 ALR2d 761 wherein it is stated that inadvertent injection of insurance is not ground for reversal in the majority of American jurisdictions; Hoffman v. Jenard, 334 Ill App 74, 78 NE2d 322, where an inadvertent reference to coverage was held not to be reversible error; Williams v. Consumers Co., 352 Ill 51, 185 NE 217, to the same effect; Rench v. Bevard, 29 Ill App2d 174, 173 NE2d 1, where a chance remark by a spectator was held not to constitute prejudicial error, Sphatt v. Tulley, 38 Ill App2d 229, 186 NE2d 670, where a chance remark by a witness was held not to be prejudicial error, and Isenhart v. Seibert, 6 Ill App2d 220, 127 NE2d 469, to the same effect.

The matters raised are more remote from the trial than those in Rench v. Bevard, supra, and, as there, the plaintiff had no association with the casual remark of a person not present at, nor in any way interested in, the litigation. There was no error in denying a mistrial.

Complaint is made that in rebuttal of defendant’s evidence of habits of careful driving, plaintiff’s counsel asked defendant if he was arrested for a traffic violation on February 10, 1963. Objection was made and sustained and the court, at defendant’s counsel’s request, instructed the jury to disregard all inferences from the question. The refusal to grant a mistrial was, at such point, not error.

Complaint is made of instructions given and refused. Plaintiff’s given Instruction No. 4B is in the language of IPI 5.01:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
“1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
“2. The witness was not equally available to an adverse party.
“3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
“4. No reasonable excuse for the failure has been shown.”

It appears that plaintiff was examined by a Dr. David Wilbur at the request of defendant’s attorney. It further appears that one Ernest Monk was a passenger in defendant’s automobile. Neither was called as a witness by defendant. Defendant relies upon Hoff v. Yellow Cab Co., 53 Ill App2d 333, 203 NE2d 8 as requiring us to hold the giving of this instruction to be reversible error. There plaintiff had not called the physician performing surgery. The treating physician, who assisted in the surgery, testified, however, concerning the operation. The court, stating that the absent physician could have been subpoenaed by the defendant, held that it was not reversible error to refuse IPI 5.01. We believe this case distinguishable upon the facts. Within the context of the comment upon the instruction, IPI 5.01, we believe that the witnesses were not “equally available” to the plaintiff. While plaintiff consented to examination by defendant’s physician, Dr. Wilbur, this was an alternative to examination by court order within the meaning of Santiemmo v. Days Transfer, Inc., 9 Ill App2d 487, 133 NE2d 539. As to Monk, the record indicates a long time friendship with defendant which suggests a likelihood that he would be biased against the plaintiff within the meaning of United States v. Beekman, 155 F2d 580. At the trial, defendant’s counsel stated, “He isn’t here,” and that counsel did not intend to call Monk. Within the language of the instruction this does not appear to be a “reasonable excuse” for defendant’s failure to call him. The instruction is well-guarded against misunderstanding by the jury and there was no reversible error in giving it.

We find no error in the giving of plaintiff’s Instruction No. 9, a form of IPI 60.01, which incorporates statutory provisions regarding speed in excess of that which is reasonable and proper, with regard to traffic conditions and use of the highway and the duty of the driver to decrease speed when special hazards exist with respect to other traffic, even though such instruction also refers to maximum speed limits not stated in the evidence.

Complaint is made of plaintiff’s Instruction No. 12 in its reference to future pain and suffering, future medical expense and future loss of earnings. In view of the evidence that plaintiff has permanent injuries, permanent source of pain and permanent disabilities in reference to functional abilities such as typing, filing, standing and housework, we find no error in the giving of this instruction.

Complaint is made of the refusal of defendant’s offered Instruction No. 15, which instructed that the statute requires a lighted taillight, that if the jury should find the statute was violated it could consider this circumstance with others in evidence on the question of defendant’s negligence, that if the jury should find defendant’s negligence was a proximate cause, then it is not a defense that some third person may also have violated the statute and may have been to blame; on the other hand, if some third person violated the statute and his violation was the sole cause of the occurrence and no negligence of the defendant was a proximate cause, then the verdict should be for the defendant.

Insofar as the requirements that the defendant be found to be negligent and that such negligence be found to be a proximate cause of the injury are concerned, we believe defendant’s position was covered and protected by plaintiff’s given Instruction No. 11, stating requirements for recovery. We think the tendered instruction is confusing in referring to the possibility that a third person may have also violated the section of the statute regarding taillights.

While each party is entitled to instructions fairly setting forth legitimate theories of defense, in this case there was, in fact, no evidence that the taillight was not burning, but, at most, a speculation based upon an asserted absence of proof that the lights were burning at the moment of impact, and that the instructions as a whole protected defendant’s theories of defense. The Abstract indicates defendant argued his theory. There was no reversible error in refusing defendant’s offered Instruction No. 15.

The judgment of the trial court is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee v. John Sisti, Defendant-Appellant.
    Gen. No. 10,821.
    Fourth District.
    October 13, 1967.

      A. Mark Rabin, of Springfield, for appellant.
    Robert E. Utter, State’s Attorney of Brown County, of Mt. Sterling, for appellees.
   TRAPP, J.

Defendant was found guilty following a jury trial upon a complaint charging the offense of obscenity in violation of chapter 38, § 11-20 (3) (Ill Rev Stats, 1965). His post-trial motion was denied and he appeals his conviction and sentence to a penal institution other than the penitentiary for a period not to exceed one year, and to pay a fine of $1,000.

We reverse and remand for a new trial because of error in the cross-examination and purported impeachment of defendant’s witness, Linda Lyttaker.

As background for the consideration of this issue, the complaint charged that certain obscene motion pictures were shown on the evening of January 22, 1966, upon the premises of defendant in the vicinity of LaGrange Locks, Brown County, Illinois. Defendant and certain personal friends had testified that the premises were of the nature and quality of a “family place,” where some garden was grown and the family and its friends repaired to the two-story house for weekends, or summer living.

The direct examination of defendant’s witness, Linda Lyttaker, was limited to testimony that she was present on the date the offense was charged, by invitation of defendant’s son, and that she did not see any of the alleged obscene film described in evidence there that evening, and that she did not see any motion picture projector or screen. Upon cross-examination by the State’s Attorney she stated her age to be 17 years, that she arrived about 8:30 or 9:00 o’clock p. m. and stayed until about 10:45 p. m. when she returned home to comply with a curfew law. Her answer to cross-examination was that she had had nothing to drink on that night at the home of the defendant. No objection was made to such cross-examination. She was further cross-examined as to the identities of persons who were, or might have been, present and was then asked, “Have you ever seen any teenagers drink alcoholic liquor there ?” Defendant’s counsel objected that the offense of sale or gift of liquor to minors was not charged and moved the court to instruct the jury to “. . . forget that question.” The State’s Attorney urged that such question was impeachment of defendant’s testimony that the premises were a “family place” and the trial court overruled the objection and instructed the witness to answer. She answered that she had not seen any teenagers drink liquor in the Sisti home. The State’s Attorney then asked her whether or not she had made a statement to the Sheriff on February 16, 1966, in which she answered “Yes” to the question had she ever seen teenagers drink alcoholic beverages there. Defendant’s counsel objected that such matter was neither relevant nor material and that there was no charge of serving alcoholic liquor to teenagers. The State’s Attorney insisted that he was impeaching the defendant’s testimony about the “family place,” and that he was impeaching the witness. The State presented rebuttal testimony of the Sheriff in which he said that on February 16, 1966, he had asked the witness if she had ever seen teenagers drink alcoholic beverages at the Sisti place and that she had answered “Yes.” Defendant’s counsel objected to the question and moved that the answer be stricken on the ground that it was not material and was improper, and that defendant was not on trial for selling or giving liquor to minors. The State’s Attorney again insisted that the evidence was proper for impeachment purposes. Defendant’s counsel asserted that the testimony was designed to prejudice the jury and moved for a mistrial for prejudice. Following a colloquy, defendant’s counsel renewed his motion for a mistrial, which the court denied. Defendant preserved this matter in his post-trial motion.

Here the defendant argues that the cross-examination was improper as going beyond the scope of direct examination. This is true, although, such objection was not made for the record. In arguing that the State erroneously injected evidence of a separate and distinct criminal offense into the trial, defendant does not cite a statute, but presumably refers to chapter 43, § 131 (Ill Rev Stats, 1965), which makes it a misdemeanor to sell or give liquor to minors.

Literally taken, it might be said that the impeaching testimony only referred to drinking by teenagers upon the premises, rather than being specifically directed to a sale or gift by defendant. The record discloses, however, argument of each counsel upon the motion, both in the presence of the jury and after it was excused, in the context that defendant was providing alcoholic beverages to minors. Such unrelated offense was not admissible as (1) tending to establish the identity of the accused, (2) showing his presence at the scene of a crime when an alibi is claimed, or (3) to prove design, motive or knowledge of the defendant where these matters are at issue. People v. Davis, 14 Ill2d 196, 151 NE2d 308.

Cross-examination should be limited to matters upon direct examination and it is improper to ask a question for the purpose of contradicting the witness. People v. Matthews, 18 Ill2d 164, 163 NE2d 469. It is improper to cross-examine a witness upon collateral matters for purposes of impeachment. People v. Kirkwood, 17 Ill2d 23, 160 NE2d 766; Esderts v. Chicago, R. I. & P. R. Co., 76 Ill App2d 210, 222 NE2d 117.

This case requires meticulous attention to rulings upon the evidence for the record boils with contradictions and attempted impeachment. Defendant’s witnesses deny that the prosecuting witnesses were present at the time and place in issue, but defendant’s witnesses, in turn, were frequently impeached in at least one instance by showing conviction of crime. Defendant himself was impeached by a record of conviction. Defendant testified that the Sheriff solicited money to drop the charges, but the former’s asserted corroborating witnesses were, in turn, impeached. The issue of guilt or innocence was peculiarly dependent upon the jury’s determination of the credibility of the witnesses testifying in the case.

Where the evidence in a criminal case is erroneously admitted, such error is presumed to affect the result unless the evidence is such that there is no other conclusion than that of guilt. People v. Hannon, 381 Ill 206, 44 NE2d 923; People v. Rogers, 348 Ill 322, 180 NE 856; People v. McCasle, 35 Ill2d 552, 221 NE2d 227. Here, the cross-examination and impeachment upon an issue collateral to the offense charged is prejudicial. Under the contradictory facts in the record, we follow the rule of McCasle and Hannon.

The prosecution argues that the testimony concerning drinking by minors was relevant to the prosecution under the Obscenity statute, apparently having in mind the language of the statute providing that evidence shall be admissible to show the character of the audience to which the material was directed. Such theory was not presented to the trial court as justification for the cross-examination and impeachment. The State’s Attorney did not attempt to present such evidence by his witnesses presented in chief, or in rebuttal. Finally, the question was improper and prejudicial in that the witness was asked, not as to alleged drinking by minors upon the date of the offense charged, but in language, “Have you ever seen teenagers drink there?” In People v. Battle, 24 Ill2d 592, 182 NE2d 713, the court noted that even if evidence of a single sale of narcotics might have been admissible to show motive for murder, there was no justification for introducing evidence as to numerous other sales of narcotics.

As to the State’s evidence that the testimony at issue was designed to impeach evidence in behalf of the defendant as to the nature of the “family place,” the witness, Lyttaker, made no attempt to characterize the premises in such fashion, and she was asked no questions concerning them. It is true that the State’s Attorney could introduce the testimony of witnesses contradicting the evidence characterizing defendant’s premises as a “family place.” This is one form of impeachment. Gard, Illinois Evidence Manual, Buie 482. The record discloses extensive rebuttal evidence offered by the State, but no witnesses were called upon this issue.

Certain constitutional questions are argued. Defendant urges that he was deprived of a fair trial by reason of newspaper articles published within the County. The record discloses that there was no motion for change of venue, no motion for continuance because of the publicity, no challenge to the panel of jurors, no challenges of jurors for cause that were denied and no exhaustion of peremptory challenges. The issue was not raised until after conviction. See cases annotated to Rideau v. Louisiana, 10 L Ed2d 1243. Defendant’s argument set out in the record suggests that the jurors were freely interrogated concerning prejudice. See People v. Cox, 74 Ill App2d 342, 220 NE2d 7 and Sheppard v. Maxwell, 16 L Ed2d 600, where appropriate interrogatories were refused.

Defendant argues violation of constitutional rights of freedom of speech in that there was no sufficient proof that the motion pictures were obscene. The trial proceedings were concerned exclusively with the issue of whether the pictures were shown. This constitutional issue was not raised during the triál or in the post-trial motion, and they are not properly raised for the first time on appeal.

Judgment of conviction is reversed and the cause remanded for a new trial.

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


author: SMITH, J.

text:
    Wanda Lee Kay, by Her Next Friend Marian Kennedy, Plaintiff-Appellant, v. Sarah J. Ludwick, Defendant-Appellee.
    Gen. No. 10,886.
    Fourth District.
    October 13, 1967.

      Hanley, Phillips & Traub, of Fairbury, for appellant.
    Adsit, Thompson, Strock & Strong, of Pontiac (Faraday J. Strock, of counsel), for appellee.
   SMITH, J.

The trial court allowed the defendant’s motion to dismiss the complaint for failure to state a cause of action and entered a judgment in bar of the suit. Plaintiff appeals.

The four-year-old plaintiff, along with her mother, were guests at the residence of the defendant. While there, a riding-type rotary power mower was engaged in mowing the lawn. It is alleged in the complaint that because of its bright color and mobility, the mower was alluring and attractive to small children who would be tempted and induced to play on it, and that the defendant knew or should have known that this mower was a dangerous and potentiálly harmful machine when operated in the presence of small children; that while attempting to climb upon the rear of the machine while it was in motion, the plaintiff came into contact with the rotary blade and her entire left heel was severed causing permanent injury, pain and suffering, medical expense, etc. It is further alleged that the defendant was negligent in (a) permitting the machine to be operated while the invited minor child was on the premises, (b) in failing to warn the minor child of the danger, (c) failed to have proper safeguards to protect the child from injury, (d) failed to stop the operation of the mower while the child was on the premises, (e) allowed the child to play in the front yard without adequate supervision, and (f) failed to refrain from carrying on an activity which the defendant knew or should have known would be dangerous to the child.

The parties are properly in accord on the proposition that it is the duty of the host to keep his premises reasonably safe for his invited minor guests. In Kahn v. James Burton Company, 5 Ill2d 614, 126 NE2d 836, our Supreme Court there stated that the customary rules of ordinary negligence control the duties of a landowner to an infant invited onto his land. We take the facts alleged as true. The sole issue in this case is whether those facts establish a duty of the defendant to the plaintiff which was breached to the plaintiff’s damage. “This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.” Prosser, Torts § 36, ¶ 3 (3rd ed 1964). Whether or not there was a likelihood of injury to a four-year-old child playing in a yard in which a riding rotary mower was being operated was reasonably foreseeable does not answer our problem. As stated in Lance v. Senior, 36 Ill2d 516, 518, 224 NE2d 231, 233, more is required. “After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.” “In other words, ‘duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.” Prosser, Torts § 53, p 331 (3rd ed 1964).

Neither counsel has cited nor has our own research disclosed any precedent establishing a standard of conduct under the specific facts which we examine. Each case necessarily rests on its own set of facts. Man’s ingenuity in inventing mechanical devices which in their operation may cause injury to his fellow man seems unlimited. This fact together with constant changing social conditions lead constantly to judicial recognition of new duties and new standards of conduct. Courts are thus not placed in solitary confinement with the duties of yesterday, but are free to recognize new duties and standards of conduct where the factual realities require that they do or should exist.

In the instant case, we are thus confronted with undisputed questions of fact and the clear obligation to declare the existence or nonexistence of a duty on the part of this defendant to this plaintiff. We have a four-year-old child who was under the apparent, if not the actual care, custody, control and management of her mother. It seems clear that this mother observed no apparent harm in permitting her child to play in the yard while the mower was in operation. It seems equally clear that the operator of the mower was not aware of any apparent danger that this four-year-old child would attempt to climb upon his moving vehicle. We think we may judicially notice that with multitudinous monotony, machines of this type or of the nonriding rotary type are daily in operation on property throughout the land in the presence of small children. The fact that a course of conduct is common practice, however, does not ipso facto establish that it is nonnegligent conduct. It does suggest, however, that the “likelihood of injury” is minimal and the apparent risk that a small child will climb upon a moving vehicle is slight.

It seems to us, therefore, that neither the “likelihood of injury” such as this record discloses nor the existence of an “apparent risk” of such an injury is such as to mark the conduct of this defendant as unreasonable. To promulgate a standard of conduct which requires a host to discontinue a mowing of his yard in the presence of minor children or in the alternative to tie the child to a bedpost is to impose upon a host an unrealistic burden and duty where such child or children are under the apparent or actual control of a parent or parents. In Driscoll v. Rasmussen Corp., 35 Ill2d 74, 79, 219 NE2d 483, 486, in discussing duty to minors, our Supreme Court said:

“The responsibility for a child’s safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. Others can be held responsible for injuries only if they are at fault under some recognized theory of liability.”

Thus the primary responsibility for the safety of this minor child rested with its mother. That responsibility can be shifted to the host only if it may be said that the host is at fault under some recognized theory of liability. In this limited set of facts, therefore, there is no responsibility resting with the host unless her conduct may be denominated as unreasonable. Here none of the parties present recognized any likelihood of injury or any apparent risk to this child in the operation of this mower. The conduct of the host “. . . is to be weighed on the theory that he will not neglect a condition which the common experience of man teaches is dangerous with injury therefrom reasonably foreseeable and conversely, he is not required to worry his head over events that are only barely possible and not reasonably foreseeable.” Rahn v. Beurskens, 66 Ill App2d 423, 429, 213 NE2d 301. We would further point out that in Rahn v. Beurskens, the bare electrical wire was a danger recognized by both the tenant and the landlord, and that the landlord assumed the duty to order its repair and the issue there to be submitted to the jury was whether or not the landlord had failed negligently in the performance of that duty. Under the limited facts here stated, the conduct of this defendant in the presence of the child’s mother cannot be denominated as unreasonable. This being true, there was no duty alleged — there is no negligence and therefore no liability.

It is further alleged in this complaint that the defendant failed to warn the minor child of the known danger, and that a breach of this duty is sufficient to state a cause of action. A duty to warn arises only where there is a known likelihood of injury or a risk that is readily apparent. Having concluded, as we have, that neither of these elements are present under the specific facts alleged in this record, it necessarily follows that no duty to warn existed and there cannot be a recovery for a breach of a nonexistent duty.

Historically, a social guest was regarded as a licensee rather than an invitee, and the duty of the host was not to wilfully, wantonly or recklessly injure the guest. As times have changed, however, this has been so watered down that “it is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee.” Prosser, Torts (3rd ed 1964), page 388, Restatement of Torts, ¶ 341. The operation of this power mower in the yard was either fully known to the parent or patently obvious to the parent. This is all that a licensee has the right to expect from his host. Prosser, Torts (3rd ed 1964), page 389. To say that there is more is to impose on a host a duty superior to the one the parent here owed to the child. If the parent was exercising reasonable care for the safety of her child under the allegations of this complaint, it appears to us that a like result must be accorded to the host in the performance of her duty to the minor child. There was no breach by the defendant of any standard of conduct or duty that the law requires.

We, therefore, conclude that the action of the trial court in dismissing this complaint for failure to state a cause of action was correct, and it should be and it is hereby affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin Sanders and William Gene Walker, Defendants, William Gene Walker, Defendant-Appellant.
    Gen. No. 10,840.
    Fourth District.
    October 13, 1967.

      Harry J. Westfall, of Decatur, for appellant;
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Franklin E. Dove, of counsel), for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin Sanders, Defendant-Appellant.
    Gen. No. 10,887.
    Fourth District.
    October 13, 1967.
    John T. Taylor, of Monroe & McGaughey, of Decatur, for appellant;
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Milo J. See, Jr., of counsel), for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.