text:
    Sentry Royalty Company, a Corporation, Plaintiff-Appellee, v. Jean Craft and Gladys Rednour, Defendants-Appellants.
    Gen. No. 66-64.
    Fifth District.
    February 16, 1967.
    Modified opinion March 22, 1967.

      Burton C. Bernard, of Granite City, and T. Hartley Pollock, of St. Louis, Missouri, for appellants.

      Dreman and Sterling, of Belleville, for appellee.
   EBERSPACHER, J.

Plaintiff Sentry Royalty Company filed its complaint praying that defendants Jean Craft and Gladys Rednour be directed to execute and deliver to plaintiff their warranty deed conveying their interest in all coal underlying a tract of land in Randolph County, upon payment to defendants of the balance of the purchase price found to be due them, deducting all reasonable costs to which plaintiff “had been put”; and that upon the failure of defendants to do so, that the Sheriff be directed to execute and deliver a deed on their behalf.

The complaint was based on allegations to the effect that Dwight Rainey, the father of defendants, had on January 29, 1955, executed an option to one Andrew Brown, for a consideration of $80, renewable for a period of 9 years by payment of a like sum annually at the option of grantee, either to the grantor or by deposit of such funds in the First National Bank of Sparta, whereby Rainey, the grantor, agreed to convey the coal underlying the tract for a consideration of $50 per acre, and to convey the fee title to not to exceed 3 acres, at the further option of the grantee, for a consideration of $500 per acre. The alleged option provided that it should be binding upon the heirs, administrators, assigns and successors of the respective parties, and was recorded on January 7, 1957, with an assignment thereof to Northern Illinois Coal Corporation, which corporation was subsequently merged into plaintiff. The complaint further alleged that Dwight Rainey died intestate subsequent to the execution of the option, leaving surviving as his sole heirs, these defendants and their sister Florence Salger, and that the payment to renew the option for the year 1956 had been made to Herbert Salger, the administrator of Dwight Rainey’s estate, which was administered in Randolph County; that the payment to renew for the year 1957 was made to the bank at Sparta, and that subsequent annual payments of $80 through 1964, were made to the three heirs pro rata. There were further allegations to the effect that in 1964 plaintiff gave notice of its election to purchase the coal by delivery of a copy of its notice of election to purchase, to the bank, pursuant to a provision of the option; that Florence Salger and her spouse, upon tender being made, deeded their interest in the coal to plaintiff but that defendants, upon tender of their respective shares of the consideration for the coal each amounting to $1,048.53, had refused to accept the consideration, and refused to execute deeds.

The defendants resided together in Chicago where they were both employed; they were both personally served with summons by the Sheriff of Cook County, one on April 11, 1965, the other a day later. On May 10, within 30 days after service, they sent a telegram to the Clerk of the Circuit Court, referring to the pending case in which they stated, “we refuse to execute and deliver deeds to plaintiff, our attorney will contact soon,” which the Clerk filed on that date. On the following day, May 11, defendant Jean Craft telephoned the Clerk’s Office and a deputy confirmed receipt of the telegram.

On May 14,1965, not more than 3 days after the return dates, the trial court entered an order of default in which the court found that defendants had failed to appear or plead, and on May 20th evidence was heard, and a decree entered directing each defendant to execute and deliver a deed of their interest in the coal underlying the tract within 30 days, and directing plaintiff to deliver certified checks to the clerk payable to each defendant in the amount of $731.78, being the unpaid balance of the purchase price after deducting expenses and costs allowed plaintiff, including an allowance of a $600 fee for plaintiff’s attorney, and further providing that should defendants refuse to comply with the terms of the decree within 31 days, that the Sheriff of Randolph County execute and deliver a deed to plaintiff, conveying the interest of the noncomplying defendant or defendants in the tract. On May 20th, the clerk mailed a copy of the decree with a warranty deed to each of defendants by certified mail, each of which was returned by the post office department, unclaimed.

Subsequently the Sheriff executed and delivered deeds of defendants’ interest in the coal and on July 15, 1965, the clerk so advised them by letter and enclosed the certified checks, which they each received the following day, July 16, and on the same day defendants again called the clerk’s office by long distance telephone, and were referred to the judge who had entered the decree. Thereafter, by counsel whom they had been successful in retaining, they caused to be filed a verified motion to vacate the default, set aside the decree, and invalidate the deed executed by the Sheriff.

In that motion, they alleged that sometime after service they had called the clerk of the court, explained that they were inexperienced in litigated matters and that they had been unable, due to their employment in Chicago, to employ counsel in the Randolph County area, and were assured that if they answered by telegram “yes it will be all right and I will take care of it for you”; that they subsequently sent the telegram of May 10, the receipt of which the clerk’s office acknowledged the following day, and that if they had been aware that such telegram was inadequate as an appearance, one of them would have personally appeared. Therein, they further alleged their receipt of copies of the decree and the additional call to the clerk, and their referral to the trial judge; that their motion was not filed for the purpose of delay or vexation and that they had believed they would have a day in court to present their defenses; and that they each believed they had a defense, in that they had sought and received an opinion from a questioned document examiner in Chicago, to the effect that the signature of Dwight Rainey on the purported option was not the real signature of Dwight Rainey as his signature was represented to the expert in numerous exhibits. Attached and incorporated into their motion, was a letter addressed to defendant Craft, dated February 23, 1965, on the letterhead of International Graphoanalysis Society, bearing the Chicago address and telephone number of the Society, and on which it was explained that graphoanalysis is a scientific system of handwriting analysis. The letter was signed by Phillip H. Vivian, C. G. A., Document Examiner, and stated that the writer had examined cancelled checks drawn by Rainey between July 27, 1953, and November 29, 1954, as well as an envelope bearing the return address of Rainey, postmarked January 17, 1955, as well as a photocopy of the option purportedly bearing the signature of Rainey, and that it was his opinion that the signature on the option did not correspond to the known signatures of Rainey which had been examined, and was made by someone other than Rainey.

The record discloses, no response, by answer, affidavit, or evidence on behalf of plaintiffs to defendants’ motion to vacate, but that the motion was argued before another judge, the judge who had entered the default and heard the original cause having disqualified himself, and denied on March 11,1966.

From this order and the decree entered on May 20, 1965, defendants filed their petition for leave to appeal, explaining by affidavit their difficulty in retaining counsel both in Chicago and locally, counsel’s withdrawal, and their difficulty due to their employment and remoteness, in engaging counsel, and their further misunderstanding with reference to the effect of their telegram. Their petition for leave to appeal also included the report of a St. Louis examiner of questioned documents, finding the signature on the option was not executed by the writer of the “Dwight Rainey” signatures on a number of documents containing his known signature, in addition to those submitted to the Chicago expert. The report pointed out that in the expert’s opinion, the purported signature of both the grantor and the notary public on the reverse of the option had been traced over. In opposition to the petition for leave to appeal, plaintiff has in its answer included affidavits of the grantee and notary public, to the effect that they were present when Rainey signed the instrument and the affidavit of the party who was the Recorder of Deeds of Randolph County at the time the instrument was recorded, to the effect that he had traced over the signatures of the grantor and notary public on the instrument with India ink for the purpose of getting a good reproduction by use of the photocopying equipment used for the recording of instruments.

The record discloses that such facts as are alleged in the affidavits included in plaintiff’s answer to the petition for leave to appeal were never offered in either the original trial or in opposition to the motion to vacate, and the judge hearing that motion had uncontradicted expert opinion that the signature was not genuine, and the fact that the signatures on the instrument had been traced, as plaintiff now concedes they were, was never presented to the court. It is to be noted that in the original trial of this cause, no witness testified as to the execution of the option by Dwight Rainey, the only evidence offered as to such execution was the testimony of Florence Salger, who in response to the question “whether or not that is the signature of your father,” responded “it is.” Since we now know that the purported signature, whether genuine or not had been traced at the time it was testified to by Mrs. Salger, we consider her testimony on this point to be of no probative value.

Under such circumstances we granted defendants’ petition for leave to appeal, and requested counsel for all parties in addition to the briefs filed, to furnish briefs on the question of the propriety of the allowance of attorney fees in this case.

In support of the court’s denial of the motion to vacate, set aside and invalidate, which was uncontradicted by pleading, affidavit or evidence in the trial court, plaintiff has urged that defendants’ telegram of May 10 neither constituted an answer, nor an appropriate motion within the purview of Supreme Court Rule 8(1) and point out that under that section regardless of the manner of appearance, a defendant’s answer or appropriate motion should be filed within the 30-day period. The Civil Practice Act (Ill Rev Stats 1965, c 110, § 20 (1)) provides that “every appearance, prior to judgment” which is not a special appearance “is a general appearance.” It, by its own provisions (section 4), is to be liberally construed “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.”

Defendants were entitled to notice in writing that plaintiff would move the trial court for a default, but the record shows no proof of such notice, nor does any party contend such notice was given. Had such notice been given, defendants would have been afforded an opportunity of a hearing to prevent the default order as well as the decree being so promptly entered. Here there is little question that failure to comply with the rule, which had the same effect as a statute, North Ave. Building & Loan Ass’n v. Huber, 286 Ill 375, 121 NE 721, coupled with the fact that apparently no consideration was given to treating the telegram as a request for additional time to plead, led the court into error in defaulting defendants and promptly hearing the cause in a nonadversary proceeding when in fact the signature of the instrument on which the action was based was concededly open to vital attack.

The allegations of defendants’ timely motion to vacate were not controverted in the trial court, and in view of them, and the absence of any showing that a delay would jeopardize plaintiff’s basic position, left little room for discretion of that court. We believe the language used by our predecessors in Widicus v. Southwestern Elec. Cooperative, 26 Ill App2d 102, pp 108-109, 167 NE2d 799, 803, is here applicable. There the court after pointing out that it is no longer necessary that a motion to set aside a default must show a meritorious defense and a reasonable excuse for not having made that defense in due time; but that the discretion to vacate and set aside is properly invoked if it is based upon the principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice, and that the hurried entry of a default is a denial of substantial justice to the defendant. Continuing, the court said:

“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.
“The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

The record here positively shows that these defendants did not treat the command of the summons to answer, nor the plaintiff’s claim with indifference. The record shows the default order was unnecessary to secure justice for the plaintiff, was entered without the required notice in violation of the court’s rules, and was a denial of justice to defendants. It should therefore have been set aside, and the decree vacated.

Plaintiff here contends that the allowance of $600 for plaintiff’s attorney fées in this cause is justified under their complaint in which they prayed for the deduction from the proceeds found due defendants, of “all reasonable costs to which plaintiff has been put in this matter,” and the fact that the alleged option on which the complaint was based provided for certain costs to be applied as a part of the purchase price. The option states:

“. . . in the event that the Grantee shall subsequently exercise this option it may deduct from the final payment of the purchase price the cost of such abstract and the cost of the correcting defects in title, if any. . . .” (paragraph 3)
“If such examination of title does not show merchantable title of record, the Grantee shall notify the Grantor of any existing defects, if any, and the Grantor shall forthwith do all things necessary to correct such defects, if any. In case the Grantor does not correct such defects, if any, as above set forth, the Grantee may, at its election, proceed to correct such defects on behalf of the Grantor and the reasonable costs thereof shall be applied upon and as a part of the purchase price hereinstated [sic].” (paragraph 4)

We consider that neither a proper interpretation of this language of the option, nor plaintiff’s prayer, justify an award of attorney fees in this cause. Plaintiff has sought, and obtained, “new or additional relief” for which Supreme Court Rule 7-1 required advance notice to defendants, and such notice was not given. Furthermore the language of the option does not constitute such an agreement of the parties as would justify the award of attorney fees under the facts and circumstances here present. The rule in Illinois is that attorney fees are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity. Ritter v. Ritter, 381 Ill 549, 553, 46 NE2d 41, 43; People ex rel. Horwitz v. Canel, 34 Ill2d 306, 215 NE2d 255.

We have taken for consideration with this case, plaintiff’s motion to strike defendant-appellants’ reply brief filed on July 14, 1966, more than 15 days after the order granting leave to appeal, in noncompliance with Rule 21 of this Court. Rules of court are adopted to facilitate the work of the court, and while we do not condone noncompliance, we are not presented here with a matter which impaired the rights of any party, nor delayed any of the proceedings in this matter.

As a result, we therefore reverse and vacate the orders, judgments, decrees and deed made pursuant thereto, in this cause in the Circuit Court.of Randolph County, and remand this cause with directions that defendants be given leave to plead, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

MORAN and GOLDENHERSH, JJ., concur.

       Uniform Rules of the Circuit Court of Illinois, Rule 2.1, Ill Rev Stats 1965, e 110, § 302.1, adopted by the Twentieth Judicial Circuit January 2,1964.


source: Caselaw Access Project

author: JUSTICE SCHWARTZ.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stephen Steele, Defendant-Appellant.
    Gen. No. 51,021.
    First District, Third Division.
    February 16, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Morton E. Friedman and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Defendant in Error, v. William D. Mace, Defendant-Plaintiff in Error.
    Gen. No. 10,820.
    Fourth District.
    February 16, 1967.

      Chester Crabtree, State’s Attorney, and Ronald K. Fellheimer, Assistant State’s Attorney, of Pontiac, for plaintiff in error.
    John A. Taylor, of Pontiac, for defendant in error.
   SMITH, J.

Defendant pleaded guilty to an information charging him with the forgery of a $35 check. He was sentenced to the penitentiary for not less than 8 nor more than 14 years. He appeals.

Defendant contends that he was not advised of his right to be indicted; did not knowingly consent to prosecution by information; was not sufficiently advised as to his rights before entering the guilty plea; that the court should not have asked the defendant about previous convictions and previous life on the hearing in mitigation and aggravation, and that the sentence is too severe.

The abstract of the record shows that the defendant was brought in for arraignment and was advised by the court that the State’s Attorney had filed an information against him; that the crime charged was a felony; that he could not be tried on an information without his consent; that if he did not waive his right to be indicted, he would be entitled to a trial by jury or before the court. He was handed a copy of the information which specifically and succinctly charges the crime of forgery. He was without counsel. The public defender was appointed. Defendant and the public defender again appeared about a week later. At this time the court said: “I have previously explained to you your right to be indicted by a Grand Jury before having to plead to a felony charged by way of information. Do you understand that situation?” Defendant: “Yes.” Court: “Waiver accepted.” A written waiver of indictment was then presented bearing date of November 27, 1962, with the date crossed out and the date of December 3, 1962, inserted and was signed by the defendant.

On the same day, December 3, the court proceeded to explain the sentence, advised the defendant of his right to petition for probation and that he would have the right to offer evidence in mitigation and the State’s Attorney had a correlative right to offer evidence in aggravation. The State’s Attorney then interrupted and furnished the defendant with a list of witnesses present at the time of a written confession. The court then proceeded to outline the course of a trial on a nonguilty plea. The court then stated defendant had said he was 38 years of age, that he was charged with forgery, and that it carried a penitentiary sentence of a minimum of one year and not more than 14 or a thousand dollar fine. He then said: “How do you plead?” The defendant answered: “Guilty.” The court then stated that no threats or promises had been made to induce the plea, that the defendant understands he has the right to a jury trial, and that no one was pushing him to make him plead guilty. Judgment of conviction entered. A petition for probation was filed and called for hearing December 10. The public defender advised the court that the defendant did not want to testify. Court: “What do you want to do, withdraw your petition?” Public defender: “That’s about all we can do.” Court: “How about that, Mr. Mace?” Defendant: “No comment.” Petition for probation denied. Court then asked about a hearing on aggravation and mitigation. Public Defender: “I have no other witnesses and he doesn’t want to testify.” State’s Attorney then stated that he had no evidence to offer except what was contained in the probation officer’s report. The public defender then said: “I have no other witnesses.” The court: “How about you, Mr. Mace [defendant] ?” Answer: “No, Sir.” Court: “Defendant waives right to hearing on aggravation and mitigation. Is that right?” Defendant: “Yes, Sir.” The court then questioned the defendant and elicited the information that he had been twice imprisoned before in Jefferson City, Missouri, and Leavenworth, Kansas; that defendant had no home; had never married; had been shot during service with the U. S. Navy, and that defendant and another lad escaped from the county jail. The court then said: “You are in serious trouble again. Forgery is bad enough, and I can’t help you, but although it is no part of this record, you broke out of jail and threatened one of the turnkeys or jailers.” Defendant said he had nothing to say in his own behalf. Sentence was then imposed.

The admonition to the defendant by the trial court before waiver of indictment or plea of guilty can be accepted is prescribed by Rule 26 of the Supreme Court, Ill Rev Stats 1965, c 110, ][ 101.26. The procedure prescribed was to eliminate any doubt that rights belonging to the defendant were knowingly and understandingly waived. People v. Mackey, 33 Ill2d 436, 211 NE2d 706. While the explanation of the rights of the accused is a substantial matter, the advice of the court to the defendant must be read in a practical and realistic manner. People v. Marshall, 23 Ill2d 216, 177 NE2d 835; People v. Doyle, 20 Ill2d 163, 169 NE2d 250; People v. Domico, 15 Ill2d 590, 155 NE2d 591. In addition, the admonition is sufficient if an ordinary person in the circumstances of the accused would understand it. People v. Outten, 22 Ill2d 146, 174 NE2d 685; People v. Flathers, 414 Ill 486, 111 NE2d 530; People v. Baldridge, 19 Ill2d 616, 169 NE2d 353; People v. Doyle, 20 Ill2d 163, 169 NE2d 250. The defendant was 38 years of age, had a high school education and some expertise as a defendant from previous occasions. While his previous experiences in court are no substitute for compliance with Rule 26, we deem them circumstances which may be considered on his understanding of what was taking place. We have previously detailed the colloquy between him and the court as to waiver of indictment. In the presence of court-appointed counsel he stated that he understood the situation. He signed a waiver of indictment. He had been specifically advised that he was charged with a felony, that he couldn’t be tried on an information without his consent and if he withheld his consent, he would be tried by a jury or by a court. The information handed him specifically and by name charged forgery. We know of nothing further that is required for the decision he was then called upon to make. We think it clear that the waiver was knowingly and understandingly made. A like comment applies to his plea of guilty. We observe no omission in the admonition of the court as to the consequences of his plea of guilty. His contentions as to these items are without merit.

The defendant complains that the trial court should not have questioned the defendant as to prior convictions when he had waived the hearing on mitigation and aggravation and through his counsel stated he did not want to testify. The inquiry of the court was related not alone to the prior convictions but to defendant’s family life, marital status, military service and a recent escape from county jail. The State’s Attorney had previously stated “we have nothing further to show other than what is shown in the probation officer’s report and conduct prior.” Both briefs stated that the prior convictions were shown in that report. It is not in the record before us. No objection was made to any questions asked by the court. No claim was made by the defendant that his constitutional privilege against self-incrimination was violated by the questions and where such questions are pertinent to the issue before the court and no objection is made the constitutional right is not violated. People v. Walls, 33 Ill2d 394, 211 NE2d 699. Not only are prior convictions pertinent to the issue of an appropriate sentence by statute, Ill Rev Stats 1961, c 38, § 1-7 (g) but the cases recognizing the principle are legion. People v. McWilliams, 348 Ill 333, 180 NE 832; People v. Popescue, 345 Ill 142, 177 NE 739; People v. Rummer-field, 4 Ill2d 29, 122 NE2d 170; People v. Wakeland, 15 Ill2d 265, 154 NE2d 245; People v. Faulkner, 12 Ill2d 176, 145 NE2d 632. These cases likewise recognize the principle that the right to a hearing in aggravation and mitigation may be waived by the defendant. These observations do not meet head on the question whether a defendant can be questioned as to his background and prior convictions where he has affirmatively waived a hearing and where he specifically stated he did not want to testify.

The presentence hearing or hearing in mitigation is not strictly a trial, but rather an inquiry into pertinent facts and circumstances which will enable the trial judge to exercise the discretion imposed upon him in determining the length of sentence. Guilt has been established by the guilty plea. The defendant stands before the court as a convicted felon seeking and hoping for mercy but entitled only to justice. The trial court is not bound by the usual rules of evidence found in criminal prosecutions but may search anywhere within reasonable bounds for other facts tending to aggravate or mitigate the sentence. People v. Faulkner, 12 Ill2d 176, 145 NE2d 632. In People v. Rummerfield, 4 Ill2d 29, 122 NE2d 170, the assistant State’s Attorney recited the facts of an alleged rape on a plea of guilty. The court then turned to the defendant and asked him if those were the facts of the case. No objection was interposed either to the statements of the State’s Attorney or to the inquiry by the court of the defendant. The judgment of the trial court was affirmed. In People v. Wakeland, 15 Ill2d 265, 154 NE2d 245, both sides agreed that the evidence in mitigation and aggravation should consist of statements by the State’s Attorney and the attorney for the defendant. The State’s Attorney made a complete statement concerning the offense and the defendant’s prior criminal record. From time to time he paused to ask the defendant if his statements were true. The defendant answered in the affirmative. His contention that the court erred in failing to call witnesses and conduct a full-blown hearing was denied. And so it is here. We are not confronted with objections to the court’s questions nor any claim that he could not be required to answer. The defendant and his counsel evidently concluded that better judgment dictated that he answer the questions and answer them truthfully. He elected not to put the State to proof of the matters contained in the probation officer’s report. We cannot say that the course pursued by the trial court was improper under the circumstances existing in this record.

Defendant’s final contention is that the punishment is excessive and should be reduced by this court. We recently approved a sentence of 5-14 years in a forgery case involving $45. People v. Haynes, 73 IllApp2d 85, 218 NE2d 489. This is not cited by way of stare decisis but to emphasize that each sentence is an individualized process and it is the duty of the trial court to seek within limits the fullest possible information concerning the defendant’s life and characteristics. “A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence applicable to the trial.” Williams v. New York, 337 US at 247, 93 L Ed at 1342; People v. Spann, 20 Ill2d 338, 343, 169 NE2d 781, 783.

There is nothing in this record justifying the intervention by this court in the discretion exercised by the trial court in the imposition of sentence.

The judgment should be and is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE CRAVEN.

text:
    Phyllis J. Sanderson, Plaintiff-Appellee, v. Dave E. Sanderson, Defendant-Appellant.
    Gen. No. M-10,816.
    Fourth District.
    February 16, 1967.
    Glenn and Logue, of Mattoon (Tom Logue, of counsel), for appellant; Burt Greaves, of Champaign, for appellee.
   Opinion by

PRESIDING JUSTICE CRAVEN.

Not to be published in full.


author: CRAVEN, P. J.

text:
    Ruth E. Herington, Administrator of the Estate of Thead M. Herington, Deceased, Plaintiff-Appellant, v. Illinois Power Company, a Corporation, DefendantAppellee.
    Gen. No. 10,794.
    Fourth District.
    February 16, 1967.

      Thomson, Thomson and Mirza, of Bloomington (Chester Thomson, of counsel), and Yoder, Yoder and Luedtke, of Bloomington, for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (William R Brandt, of counsel), for appellee.
   CRAVEN, P. J.

This appeal arises from denial of plaintiff’s post-trial motion which sought a new trial. The jury below found for defendant, Illinois Power Company, in this wrongful death action. Plaintiff contends that certain errors occurred during the course of the trial which were prejudicial and require that a new trial be had. These alleged errors are: (a) Striking certain allegations of negligence from her complaint at the close of her case-in-chief ; (b) failing to allow certain amendments to the complaint which she tendered at the close of all the evidence; (c) refusing proper jury instructions; (d) denying an offer of proof made on her behalf; and (e) allowing the defendant to present conjectural testimony for the jury’s consideration over objection. The plaintiff also contends that the verdict is against the manifest weight of the evidence.

A consideration of these questions requires a review of the pertinent evidence. Plaintiff’s decedent, Thead Herington, hereinafter referred to as “Herington,” was employed by Eichelkraut Construction Company in November of 1962 as a steelworker on a construction site at the west campus complex of Illinois State University at Normal, Illinois. Eichelkraut was the general contractor in charge of erecting the Practical Arts Building for the university. On November 19, 1962, the day that Herington was killed, the building was about two-thirds completed. On that day, Eichelkraut’s superintendent, Thacker, hired a crane from LaRue Construction Company to lift bundles of roof steel from the place where they had been stored since the preceding summer, to the top of the new building. This crane had a boom approximately one hundred feet in length. The steel bundles were located in a line running generally north and south under power lines owned by the defendant, Illinois Power Company, which extended north and south on poles at the west edge of the construction site. These power lines had been in place before April, 1962, when construction began on the building in question, and they served another building under construction being built by a different contractor, not the construction site in question. There were two 2400-volt lines attached to either end of eight-foot crossarms situated near the top of each pole. A neutral wire was attached to the poles four feet below the charged wires. In the vicinity of the steel, the charged wires were twenty-four feet above ground. The bundles of Steel were approximately five feet high.

Five or six bundles had been moved at the time of the occurrence and the last bundle was being attached to the cable of the crane when the incident occurred. On prior loads either Herington or the other steelworker present, Gorman, would direct the crane operator regarding placement of the cable near the bundle to be raised. Then one of them would pass the cable hook and slack cable from the crane under the bundles of steel to the other, and the one receiving it would pull the hook and slack cable on through and attach it in such a manner as to make a loop of the cable. Prior to beginning work that day, Thacker called Herington and Gorman together with the crane operator and Thacker’s assistant. Thacker told all the men, including Herington, to be careful of the power lines under which the steel lay; that the voltage was not known and they should not get close to the wires. Gorman and Herington acknowledged this warning. No notice was given to the defendant that the crane would be used or that the steel would be removed. The crane was positioned 25-30 feet west of the Practical Arts Building. The power lines ran in a general north-south line 110 feet west of the building. With the boom extended toward the steel, the end from which the load cable was lowered was about fifty feet above the easternmost charged wire. The operator, in the course of picking up a load, would swing the crane from the building to the steel counterclockwise and lower the cable to either Gorman or Herington. He could not tell the horizontal distance between the load cable and the power lines and therefore depended upon signals from Gorman or Herington, depending upon which one was in the best position to be seen.

On the last load Gorman signaled the crane. He was standing under the electric wires positioned so that he could see the wires, the boom and the cable. He signaled the operator to stop the rotation of the boom and signaled for the load cable to come down. As the cable was lowered it was about two feet east of the easternmost power line. When Gorman got the slack, he knelt on the east side of the bundle. Herington knelt on the west side with his head about four inches above the earth, working toward the hook and underneath the bundle. When Herington took the hook and pulled it toward him, the load cable became charged and killed him instantly.

No one from Illinois Power Company was present on the day or at the time of this occurrence. The electric wires were visible from all parts of the construction site.

Although there was a dispute as to some of the above-stated facts in the evidence, there is competent evidence which supports each of the above recitations. With respect to this evidence, the jury was instructed, at the request of the plaintiff, in the form of IPI 20.01, that the following charges of negligence were made against the defendant:

“1. Failing to properly insulate the temporary power line.
“2. Negligently maintained a high voltage uninsulated power transmission line above the ground when the defendant knew or should have known that large cranes were being employed in close proximity to the power line.
“3. Failed to remove a high voltage uninsulated power line when defendant knew or should have known that cranes were being used in close proximity to the power line.
“4. Failed to transmit the electrical power underground.
“5. Negligently failed to post signs or otherwise give warning of the fact that said power line in fact was not covered with insulating material.”

The jury was also instructed, at plaintiff’s request, as to the meaning of “proximate cause” in the language of IPI 15.01 and regarding concurring causes in the language of IPI 12.04:

“When I use the expression ‘proximate cause,’ I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”
“More than one person may be to blame for causing an injury. If you decide that the defendant, Illinois Power Company, was negligent and that its negligence was a proximate cause of injury to the plaintiff’s testate, Thead Herington, it is not a defense that some third person who is not a party to the suit may also have been to blame.
“However, if you decide that the sole proximate cause of injury to the plaintiff’s testate, Thead Herington, was the conduct of some person other than the defendant, Illinois Power Company, then your verdict should be for the defendant, Illinois Power Company.”

In our view, if the instructions were proper— an issue to be discussed later — a resolution by the jury of the issues of the existence of defendant’s negligence and whether negligence, if any, was so found, was a proximate cause of the decedent’s death, in favor of either party, was warranted. A verdict favorable to the defendant is not against the manifest weight of the evidence. There are areas in which reasonable minds can and will disagree as to liability and these cannot be defined except on an ad hoc basis. Because varying conclusions might be reached, the questions of negligence and proximate cause were ideally suited for the jury. Kacena v. George W. Bowers Co., 63 Ill App2d 27, 211 NE 2d 563 (1st Hist 1965).

If the plaintiff is to have a new trial, then it must be based upon prejudicial error which occurred as a result of the trial court’s rulings in the course of the trial, which are preserved for review in the post-trial motion and on appeal.

The first alleged error was striking from the plaintiff’s complaint the following allegations at the close of the plaintiff’s evidence:

“ (d) Negligently failed to post any warning as to the existence of said temporary uninsulated high voltage power line when the Defendant knew or should have known that workmen were working with cranes in close proximity to said line and that such warning was necessary for the safety of Plaintiff’s intestate.
“(e) Negligently failed to warn the contractors or subcontractors performing work in said area of the existence of the Defendant’s uninsulated, high voltage temporary power line and the dangers attendant thereto when the Defendant knew or should have known that said contractors, subcontractors and employees were working with cranes in close proximity to said power line and that such warning was necessary for the safety of Plaintiff’s intestate.”

With reference to these allegations, all the evidence indicates a warning by the defendant that the power line existed was totally unnecessary. The evidence was undisputed that the workmen, including Herington, could see the high-voltage line and the contractor in charge of the work, through his superintendent and assistant, acknowledged their awareness of the danger presented to themselves, their equipment, and the workmen employed on the site prior to the time that Herington was killed.

“The purpose of warning is to apprise a party of the existence of a danger of which he is not aware . . .” Bakovich v. Peoples Gas Light & Coke Co., 45 Ill App2d 182, 188, 195 NE2d 260, 268 (1st Dist 1963).

See also Restatement, Second, Torts, § 343. The allegations do not describe the breach of any duty owed by the defendant under the circumstances disclosed by the evidence and were properly stricken.

Plaintiff complains that the offer of the following amendment to the complaint was denied at the close of all the evidence:

“(d) Negligently failed to post signs or otherwise give warning of the fact that 2400 Volts were being transmitted through said power line and that said power line in fact was uninsulated.”

This ruling was proper. There was no evidence that the voltage in the line in and of itself was of any particular significance, and the jury was instructed on the issues that high voltage was involved. In addition, plaintiff’s attorney argued, in closing, that the power company was negligent because the presence of 2,400 volts in the line created a duty on its part either to insulate or bury the wires. He also argued that liability should be imposed, in part, because only the power company knew the wire was carrying 2,400 volts and only it knew it was uninsulated. He told the jury that a higher duty to warn existed here because 2,400 volts were involved than would have existed had 110 volts been involved. In view of this argument and the court’s instruction that negligence was charged in failure to warn of no insulation, or failure to insulate or bury a high-voltage line, we are unable to say that error, if any, was prejudicial. In addition, the plaintiff abandoned her attempt to put the actual voltage in front of the jury as a measure of the defendant’s duty to warn and submitted a third form of paragraph (d), which was allowed as an amendment by the trial court. This amendment appears as No. 5 in the issues instruction above quoted. Any error which might have occurred with respect to paragraph (d) was thereby waived.

Plaintiff complains the following instruction, as tendered, was rejected:

“If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.”

Another instruction on the liability of different actors for more than one act leading to injury, based upon IPI 12.04, was given and is quoted earlier in this opinion. The court did not commit error under the circumstances, as the given instructions adequately and accurately covered the same territory as the rejected one. The jury was properly instructed that if the negligence of the power company was a proximate cause of the death of Herington, the fact that others not parties may also have been to blame was no defense.

Plaintiff complains because she was prevented from proving that two days following the accident the defendant posted signs on the premises in question warning of high voltage. Plaintiff offered the evidence upon the theory that it was pertinent to show control over the premises. However, there was no contention that the power company could not have put such signs upon the poles or upon the ground between the poles prior to the ■accident, and negligence was charged for failing to do so. The sole witness who testified upon this issue was the service area engineer for defendant in November, 1962. He stated that he knew of no limitation on the defendant to put signs on the poles had it elected to do so at or prior to the time of the occurrence, nor did he know of any limitation upon their authority to put signs on the ground. There is nothing admitted or denied in the pleadings which makes an issue of defendant’s inability, prior to the occurrence, to exercise sufficient control over the poles, signs or ground to allow it to place warning signs in the vicinity of the occurrence. In the absence of an issue raised by the pleadings or the proof on the part of the defendant that it was unable physically to place warnings at the scene, we believe the offer of proof was properly denied as there was no issue making the evidence relevant at the times it was offered.

Plaintiff likewise alleges error because a witness employed by the engineers in charge of supervising construction of the building in question was asked on cross-examination by defendant’s attorney concerning his testimony that the crane came on the site a few days before the accident, “Could it [the date of delivery of the crane] have been the same day as the accident?” The question was objected to because it called for conjecture or speculation. The witness answered that “it could have been” after the objection was overruled. The error, if any, was harmless and not prejudicial in a record otherwise remarkably free of error, particularly in view of the fact that it was undisputed that the only day that steel was removed from under the power line was November 19, 1962. There is no evidence that on other occasions any activity was occurring on this construction site in close proximity to the power lines, which were 110 feet west of the construction and 24 feet above the ground. Certainly it was not contended that defendant’s power line presented any danger to workmen in the vicinity of the crane or cables while they were being used away from the charged wires. Resolution of the issue of knowledge, actual or constructive, of the defendant that cranes or their appurtenances were likely to become entangled in the power line in question would revolve around the length of time such cranes were used in the vicinity of the power lines. The only evidence of such activities relates to the activities of Herington and Gorman on November 19,1962.

The court properly denied plaintiff’s post-trial motion and properly entered judgment on the verdict of the jury in this case. The judgment of the circuit court of McLean County is hereby affirmed..

Affirmed.

SMITH and TRAPP, JJ., concur.


author: CORYN, J.

text:
    Betty Dunlavey, Plaintiff-Appellant, v. Thomas Patti, Defendant-Appellee.
    Gen. No. 66—36.
    Third District.
    February 16, 1967.

      Bissonnette & Nutting, of Kankakee, for appellant.
    Ackman, Henry & Benson, of Kankakee, for appellee.
   CORYN, J.

This is a guest passenger suit in which plaintiff, Betty Dunlavey, the passenger, was awarded an $8,000 jury verdict against defendant, Thomas Patti, the driver. Subsequently, on defendant’s póst-trial motion, the trial judge set aside both the verdict and the judgment entered thereon, upon the grounds that they are contrary to the manifest weight of the evidence, and a new trial was ordered. We have granted plaintiff’s petition for leave to appeal from the order granting a new trial.

The accident from which this controversy arises occurred on Sunday, November 5, 1961, at approximately 12:10 a. m., when a vehicle being operated by defendant, and in which plaintiff was a passenger, collided with a parked automobile in the 100 block of North Greenwood Avenue in Kankakee.. Police Officer Luke Martin, who was called to the scene of the accident at 12:15 a. m., stated at the trial that his investigation of the accident at that time indicated that defendant’s vehicle had been traveling in a southerly direction on Greenwood Avenue, and that it struck an automobile properly parked on the east side of the street. He testified that defendant said of himself, while riding in the squad car from the scene to the hospital, that he must have fallen asleep at the wheel of his car. Plaintiff testified that she went to the Circle Bar at approximately ten o’clock in the evening, where she met defendant, an acquaintance of hers since childhood, that they left together in defendant’s new automobile, and drove to his tavern located at 803 North Wildwood in Kankakee. She stated that she did not go into this tavern, but waited outside in defendant’s car for him to return. Defendant was in the process of taking her to her automobile when the accident occurred. She related that they were driving in the correct lane of traffic, when suddenly defendant’s car turned or veered to the left, and struck the parked automobile. She testified that she sustained injuries to her ankle, which required her to use crutches, and severe injuries and cuts to her face, which required plastic surgery. Defendant testified, however, that when he and plaintiff arrived at his tavern, plaintiff entered with him, and sat at the bar drinking a Coke and watching television. He stated that William Chigaros, his night watchman at the tavern, left to get some pizza, and that upon Chigaros’s return, they all ate pizza at the bar. While Chigaros was gone, defendant put his head on the bar and slept, and again slept after he had finished eating pizza. Patti admitted that he fell asleep while driving his car, and that at that time plaintiff was a guest in his car. Defendant stated that when he was ready to leave his tavern, Chigaros told plaintiff that she should drive because defendant was tired, but that she in turn said of him that he hadn’t been drinking, seemed to be all right, and should drive his own car. He testified also that he remembers leaving his tavern, and that he was awake and felt that he could drive all right. He stated that he “didn’t even feel sleepy” upon driving from his tavern, and that the first time he dozed off was when the accident occurred. He said he would not have gotten into his car to drive if he did not think he was able to do so. The evidence indicates that defendant had not had any sleep since the previous Thursday night, and that this fact was not known to plaintiff. William Chigaros corroborated the testimony of his employer. He testified that he was in defendant’s tavern at the time plaintiff and defendant came in, and that he borrowed defendant’s car to get pizza and bring it back. He stated that defendant fell asleep at the bar, and that when the late television movie was over, he suggested to Mrs. Dunlavey that she drive, as defendant was tired. Plaintiff denied this conversation and also denied that she was ever in defendant’s tavern. In addition to this conflict in the evidence regarding plaintiff’s presence in defendant’s tavern, there are other discrepancies within plaintiff’s testimony regarding the time of her arrival at and departure from both the Circle Tap and defendant’s tavern. There is no conflict in the evidence, however, regarding the facts from the time plaintiff and defendant left defendant’s tavern to the time the accident occurred.

There is no claim by either party to this appeal that error requiring a new trial was committed during the course of the trial of this case. It is claimed only that the verdict was contrary to the manifest weight of the evidence, and that the trial court correctly, for this reason, granted a new trial. In its memorandum of opinion, the trial court observed that plaintiff’s testimony was inconsistent regarding the times of day that she entered and left the Circle Tap and arrived at defendant’s tavern, and also that plaintiff’s denial that she had entered defendant’s tavern was in direct conflict with the testimony, on this subject, of both Chigaros and defendant. The trial court further concluded that “In order to believe the plaintiff one would have to completely disregard this testimony [i. e., testimony of William Chigaros] as being a figment of the imagination on the part of the witness, which the Court cannot do, even though the Jury did so.”

A court of review will not reverse an order of a trial court, granting a new trial, unless the record clearly shows an abuse of discretion. An abuse of discretion is shown, however, where it appears that the trial court set aside a verdict and granted a new trial merely because it would have decided the case differently had it been the trier of fact, or because it feels that inferences or conclusions other than those drawn by the jury are more reasonable. The trial court cannot substitute its inferences and conclusions of fact for those drawn by the jury if those drawn by the jury find reasonable support in the evidence, Foster v. VanGilder, 65 Ill App2d 373, 213 NE2d 421, for it is the jury’s function to weigh the conflicts and discrepancies in the evidence, to determine if the witnesses’ testimony is credible, in whole or in part, and to draw the ultimate conclusions of fact. Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212.

Here, the trial judge, in his memorandum of opinion, candidly states that his reason for concluding that the verdict was contrary to the manifest weight of the evidence was that he did not believe the plaintiff’s testimony, even though, as he concluded, the jury did. In other words, the trial judge substituted his inferences on the issue of plaintiff’s credibility for the contrary inferences drawn by the jury. We are of the opinion that the trial court was in error in so doing, as we conclude that the inferences drawn by the jury have reasonable foundation in the evidence. The jury’s finding that the defendant was guilty of wilful and wanton misconduct in the operation of his automobile, which proximately caused the collision and resulting injuries to the plaintiff, and that plaintiff was free from contributory wilful and wanton misconduct, which were ultimate issues of fact to be determined in this case, are not contrary to the manifest weight of the evidence.

Accordingly, the order of the Circuit Court is reversed, and the cause is remanded with directions to vacate the order granting a new trial, and to enter an order reinstating the judgment entered on the verdict for plaintiff.

Reversed and remanded with directions.

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


author: MR. JUSTICE SEIDENFELD

text:
    Mabel Ulrich, Executor of the Estate of J. Robert Ulrich, Deceased, Plaintiff, v. Nicholas Glyptis and Irene N. Glyptis, Defendants.
    Gen. No. 66-46.
    Second District.
    February 21, 1967.
    Rehearing denied April 13, 1967.

      Desort and Krantz, of Chicago, for appellants.
    Arthur S. Walter and Simon Herr, both of Chicago, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff, as executor of the estate of her late husband, brought suit against defendants Nicholas Glyptis and Irene N. Glyptis on an alleged note in the face amount of $25,000, and secured judgment on complaint and answer, by default. This dispute relates to the dismissal of defendants’ second petition to vacate the default judgment by proceedings brought under section 72 of the Civil Practice Act. (Ill Rev Stats 1965, c 110, § 72.)

The instrument upon which the suit is based is written on stationery bearing the letterhead of “MULTI-TRON LABORATORY, INCORPORATED,” as follows:

“March 11,1961
“Received of Dr. J. Robert Ulrich and Mabel A. Ulrich of Arboretum Road, Glen Ellyn, Illinois, the sum of $25,000 (Twenty-five Thousand Dollars) as a loan for the period of one year as of this date, March 11, 1961 which may be returned within a lesser time if the borrower so desires upon the following basis:
“The sales for the period of January, February, March of 1961 will be compared to the three month period previous to its return or if the full year is used, the period January, February, March 1962 as a basis to establish a ratio of gross sales of MultiTron Laboratory, Incorporated that the ratio will be used on the original amount and will be returned for example, if the sales for the quarter ending March 31,1961 amount to $100,000/and the sales for the same period in 1962 amount to $200,000. the principal will be doubled, likewise if the sales amount to only $150,000. in the quarter ending March 31, 1962, the principal will be returned at $25,000. plus an amount equal to 50% of the principal. In the event there is no increase in sales, a nominal interest of at least 4% will be paid.
/s/ Nicholas Glyptis
Nicholas Glyptis
/s/ Irene N. Glyptis
Irene N. Glyptis”

The complaint alleged the instrument to be a note, and further alleged both a demand for and a failure of payment. The defendants’ answer denied all of the allegations of the complaint, and further alleged that the loan in question was made “not to the defendants but to Multi-Tron Laboratory, a corporation.”

Trial on the complaint and answer was had on December 14, 1964, without the defendants being present either in person or by counsel. Judgment was thereupon entered in favor of the plaintiff and against the defendants, individually, in the total amount of $29,687, pursuant to a judgment order filed on December 30, 1964.

On July 14, 1965, after citation hearings were continued from time to time, the defendants filed a verified petition under section 72 of the Illinois Civil Practice Act to vacate the judgment against them. This petition, which was filed by a new attorney for defendants, simply set forth, in essence, that the complaint was unverified, that an appearance and answer was filed on behalf of defendants, that the defendants were in a confused and upset mental condition because of financial difficulties and because of the deaths of certain family members of one of the defendants, that the defendants were not in contact with their attorneys until after the judgment was entered, that the report of proceedings neither mentions the names of the defendants nor the method by which the case came on for hearing and does not contain any testimony of the plaintiff, that the instrument sued upon was on the stationery of a bankrupt corporation and was not notarized or witnessed, and that the foregoing facts, if known at the time of the judgment order, would have prevented the entry of same. The petition was denied on November 23,1965.

On December 14, 1965, after another substitution of attorneys for defendants, a second petition was filed to vacate the judgment pursuant to section 72 of the Illinois Civil Practice Act. Exhibit “B” to this second petition is as follows:

“September 11,1962
ACCEPTANCE
We, the undersigned, being an unsecured creditor of MULTI-TRON LABORATORIES, INC. or RAYTRONICS SALES COMPANY, INC., do hereby approve the recommendation of the CREDITORS’ COMMITTEE, as expressed in their letter to creditors of September 11, 1962, and do hereby consent to accept in full payment, settlement and release of our claim against the above named MULTI-TRON LABORATORIES, INC., or RAY-TRONICS SALES COMPANY, INC. a compromise settlement of 30%, payable 7%% cash and 22%% divided in three equal yearly installments, evidenced by non-interest bearing Note from the above company.
In the event our claim is under $100.00, or in the event we wish to reduce our claim to $100.00, it is understood that we will receive 30% in cash in full settlement and compromise.
/s/ J. Robert Ulrich
CREDITOR OF MULTI-TRON -LABORA^
-TORIES,-INC.
R-A-Y-TRONIGS-SALES-COMPANYí 1NO -fStrike-one if Inapplicable-)Jii N & I Realty Co
ADDRESS: 523 So. Cicero Ave._
Chicago 44, Ill.
AMOUNT OF CLAIM $25,000.00”

The petition to vacate the judgment alleged that the foregoing document constitutes a meritorious defense in that it shows that the obligation sued upon is actually the obligation of Multi-Tron Laboratories, Inc., a corporation, and not the personal obligation of the defendants.

Further, the petition contains the affidavits of two of defendants’ attorneys which purport to show that the “Acceptance” was unavailable, despite the diligence of the defendants and their attorneys, until just prior to the filing of the petition. The affidavit of Attorney Berndtson, defendants’ first attorney, essentially represents that the document sued upon, in his opinion, constituted a personal obligation of the defendants. After defendants had informed him of the existence of the “Acceptance,” however, he repeatedly “bore pressure” upon them to locate that document, and he himself examined the court files involving the bankruptcy proceedings of Multi-Tron Laboratories, Inc., and telephoned the receiver in bankruptcy, the receiver’s attorney, and one other attorney, but the “Acceptance” remained undiscovered.

The affidavit of Attorney Elliott, defendants’ then attorney, represents that he did not discover the “Acceptance” until December 2, 1965, and that he offered a copy thereof on December 7, 1965 to the plaintiffs’ attorney who refused to accept it.

From a denial of this second petition, defendants appeal.

The foregoing affidavits are significant by their omissions. Nowhere do the affidavits reveal the whereabouts of the mysterious “Acceptance” during the time of the trial or thereafter until its discovery one year later. It seems clear that Attorney Elliott knew at the time of his affidavit where the document had been, since he states therein that he found it. The failure to go further and state where the document had been is curious, and it can only be assumed that had affiant’s story been completely told, the facts would negate a finding of diligence on behalf of the defendants or their representatives. Indeed, the affidavit of Attorney Berndtson discloses that he and defendants knew at the time of the trial and prior thereto that the document existed. Also conspicuous by its absence is a sworn statement by defendants showing that they themselves diligently searched for the document, particularly since Attorney Berndtson “bore pressure” upon them and “urged them to locate a copy” of it during “many telephone interviews and personal conferences” with defendants. Finally, there is no showing as to why no discovery procedures were pursued in an effort to locate the “Acceptance.”

The requirements for relief under section 72 were clearly stated in Powers v. Browning, 2 Ill App2d 479,119 NE2d 795, pp 486 and 489 (1954) :

“. . . The defendant was required to show affirmatively that there was no lack of diligence on his part in preparing his case for trial, and that he was in no manner negligent in his efforts to procure the newly discovered evidence at the trial. Nesbit v. Streck, 259 Ill App 48. As the court said in People v. Dabney, 315 Ill 320: ‘Applications for new trial on the ground of newly discovered evidence are not looked upon with favor by courts but such applications are to be subjected to close scrutiny. The burden is on the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of due diligence. (People v. Le Morte, 289 Ill 11.) The evidence must fulfill the following requirements: First, it must appear to be of such conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence; fourth, it must be material to the issue; and fifth, it must not be merely cumulative to the evidence offered on the trial (citing cases).’ Stocker v. Scherer, 1 Ill2d 406.”

This court has recently stated in Gundersen v. Rainbow Cleaners and Laundry, Inc., 77 Ill App2d 268, 222 NE2d 41 (1966) that a motion under section 72 is not intended to relieve a party from the consequences of his own mistake or negligence, and that petitioner has the burden of alleging and proving that adequate grounds for relief exist. The court is not restricted to facts preceding the default judgment but may consider conduct of a party after the judgment is entered. Park Ave. Lumber & Supply Co. v. Nils A. Hofverberg, Inc., 76 Ill App2d 334, 222 NE2d 49 (1966).

In view of defendants’ knowledge of the existence of the “Acceptance” at the time of trial, as well as at the time of the hearing on the original motion to vacate the judgment, the case is not unlike that of Bradshaw v. Saporito, 14 Ill App2d 502, 144 NE2d 838 (Abst 1957), where the defendant petitioned under section 72 to vacate a judgment to enable him to introduce the testimony of a certain witness. The petition was denied and the Appellate Court affirmed, saying:

“At the time of the hearing on the motion for a summary judgment the defendant knew of the witness and of her knowledge of the case about which she could testify. The record does not indicate that the defendant sought a postponement of the hearing of the motion for a summary judgment in order to search for and procure the presence of the witness ... It is interesting to note that no affidavit by the witness, setting out what her testimony would be, was presented to the court. We are of the opinion that the court was right in denying plaintiff’s petition.”

We hold that the defendants’ petition and affidavits are not persuasive to show that there was due diligence in attempting to discover the “Acceptance” at or prior to the time of trial, as well as prior to the time the original petition to vacate was heard. As noted above, the affidavits reveal: that the existence of the “Acceptance” was known all along, but they do not indicate why discovery procedures were not undertaken to find it; that defendants were repeatedly urged to search for it, but not if defendants did search; that it was found on December 2, 1965, but not where it was found or where it had been all along.

Quite apart from the failure to show diligence on behalf of defendants, it is the opinion of the court that the “Acceptance” is insufficient to show a meritorious defense. As already noted from the quoted language of Powers v. Browning, supra, p 486, the newly discovered evidence “must appear to be of such conclusive character that it will probably change the result if a new trial is granted.” The conclusion of petitioner that he would be able to show a meritorious defense on the basis of the “Acceptance” if permitted to do so at a retrial is not an adequate basis for the relief sought. Gundersen v. Rainbow Cleaners and Laundry, Inc., supra, p 43.

The “Acceptance” does not conclusively show that the defendants are not personally obligated on the instrument sued upon. Even if the “Acceptance” reflected a corporate debt, we would not necessarily conclude that there could not at the same time be a personal debt under an instrument executed eighteen months earlier. Furthermore, the conclusiveness of the “Acceptance” is clouded by the inked interlineations drawn through the corporate names beneath the signature of the creditor, which certainly raises the question that the creditor might not have considered himself a corporate creditor at all. Defendants have cited no authorities, and we know of none, indicating that the “Acceptance,” if originally introduced at the trial, would have constituted a meritorious defense or materially have changed the outcome of the litigation. The note sued upon is not, on its face, ambiguous insofar as it purports to create a personal obligation. At best, therefore, the “Acceptance” would be extrinsic evidence of a latent ambiguity. M & J Diesel Locomotive Filter Corp. v. Nettleton, 56 Ill App2d 146, 150, 151, 205 NE2d 659 (1965). Nothing further was presented to show the circumstances under which this document was submitted which in any way could have amounted to a practical construction of the agreement of the parties. In itself the document is not conclusive and would not “probably change the result if a new trial is granted.”

Because of the failure to show that there was no lack of diligence by defendant, and because the newly discovered evidence is certainly not conclusive on the question of the defendants’ personal liability, we hold that the presumption in favor of the decree (Neitzke v. Neitzke, 15 Ill App2d 473, 477,146 NE2d 708 (1958)) has not been overcome. Accordingly, the order denying the second petition is affirmed.

Order affirmed.

DAVIS and ABRAHAMSON, JJ., concur.

       Inked interlineations on original.


text:
    The Ohio Casualty Insurance Company and West American Insurance Company, Plaintiffs-Appellees, v. United States Fidelity and Guaranty Company, Francis T. Carroll, et al., and Parkway Motors, Inc., Defendants-Appellants.
    Gen. No. 66-81.
    Second District
    February 21, 1967.
    Williams, McCarthy, Kinley and Rudy, of Rockford, for appellant.
    Welsh, Welsh, Holmstrom and Hyzer, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This appeal from a declaratory judgment involves a dispute between plaintiff insurance companies and the defendant insurance company as to which is responsible under their respective policies for defense and any judgment arising out of an injury suit filed by Carroll against Livesay, Jr.

The facts are not in dispute and only a legal question emerges. The appeal is taken from the judgment declaring that U.S.F. & G. is primarily liable and Ohio Casualty and West American liable for any excess.

Carroll was a salesman-employee of Parkway Motors. In the course of his employment he permitted Livesay, a prospective customer, to drive a car from the lot on a demonstration with himself as a passenger. During the drive Carroll was injured in an accident. It is not questioned that Carroll was under the Workmen’s Compensation Act.

The effect of the employee exclusionary clause in Parkway’s policy, written by U.S.F. & G., is in issue. Ohio Casualty insured Livesay’s father’s car and West American insured Livesay’s mother’s car. Livesay was a permitted user under both of his parents’ policies.

The coverage clause in the U.S.F. & G. policy provides :

“I Coverage A — Bodily Injury Liability — Automobile
“To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.”

The exclusionary clause in the U.S.F. & G. policy provides:

“This policy does not apply
“ (g) Under Coverage A (Bodily Injury Liability-Automobile) to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the Insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the Insured”;

The policy also provides:

“The unqualified word ‘Insured’ includes the named Insured . . .”

There is also a “severability of interests” clause which provides:

“8. Severability of Interests. The term ‘the Insured’ is used severally and not collectively, but the inclusion herein of more than one Insured shall not operate to increase the limits of the Company’s liability.”

The direction of U.S.F. & G.’s argument is that its policy, to avoid duplication of coverage with Workmen’s Compensation insurance, was not intended to apply to an employee of the named insured whose injury occurred within the scope of his employment; that the exclusionary clause is intended to cover situations or hazards and not to declare who is insured; and that the addition of the “severability” clause in standard policies since 1955 does not affect the situation wherein an employee is involved; that if so intended, it could have been easily so stated clearly.

Plaintiffs argue that the use of the phrase excluding “any employee of the insured” in the U.S.F. & G. policy indicates an intention to exclude only Carroll who was the employee of Parkway, and not to exclude Livesay, Jr. as an additional insured; that otherwise, the phrase would have to be rewritten to mean “insureds,” in the plural, or “any or all insureds.” They further argue that the “severability” clause was meant to end any question as to that interpretation. In effect, they argue that Livesay, Jr. is the insured who was intended to be afforded the benefit of the U.S.F. & G. policy and that Carroll’s suit against the additional insured is not excluded because Carroll is not the employee of that insured.

The questions raised in the interpretation of the employee exclusionary clause in the policy in question are no longer novel, but decisions in various jurisdictions are in irreconcilable conflict. 50 ALR2d 97-104.

The only Appellate ruling in Illinois bearing on the question is General Acc. Fire & Life Assur. Corp. v. Brown, 35 Ill App2d 43, 52, 181 NE2d 191, decided in the First District in 1962. Having before it an employee exclusionary clause essentially similar to the clause in question here, that court held that the provision would exclude an additional insured from protection under the policy against an injury suffered by an employee of the named insured. The “severability of interests” doctrine was argued in that case, and while the court noted that the policy before it did not contain that express clause, it offered the dictum:

“Moreover, courts faced with the question of the effect of such a clause have held that it does not change the meaning of the exclusionary clause. (Transport Ins. Co. v. Standard Oil Co. of Texas, 161 Tex 93, 337 SW2d 284; Kelly v. State Automobile Ins. Ass’n, 288 F2d 734.)

The Circuit Court of Appeals for the Seventh Circuit, seeking to apply Illinois law and noting no controlling Illinois decisions, interpreted a similar employee exclusionary clause to conclude that there is no liability when an employee of the named insured is injured while engaged in the employ of said insured. Michigan Mut. Liability Co. v. Continental Cas. Co., 297 F2d 208 (CA 7th, 1961). Shortly thereafter that same court decided another case, seeking to apply Illinois law, with the same conclusion, (having then before it General Acc. Fire & Life Assur. Corp. v. Brown (supra)). Ferrell v. State Automobile Ins. Ass’n of Indianapolis, 303 F2d 897 (CA 7th, 1962). While the “severability of interests” clause was not before that court in its decisions, the court’s rationale was that the employee exclusionary clause does not attempt to say who is an assured, but simply sets forth the agreement of the parties that the policy shall not be applicable to certain situatiom, including one involving injury to an employee of the named insured while acting in the scope of his employment and thus under the Workmen’s Compensation Act.

In cases decided in other jurisdictions directly involving the question of the effect of the “severability” clause, there is the same irreconcilable conflict in the decisions. The United States Court of Appeals for the Sixth Circuit has rejected the contention, also made here, that the purpose of the “severability” clause was to clarify the confusion which had existed in the various jurisdictions which had come to opposite conclusions in interpreting the “employee exclusion clause.” The Sixth Circuit Court found “no evidence . . . that this was the purpose.” Kelly v. State Automobile Ins. Ass’n, 288 F2d 734 (CA 6th, 1961). It found no ambiguity in the exclusionary clause, holding that an employer would take out Workmen’s Compensation to cover any claim of an employee and would rely on protection of liability insurance against claims asserted by the public, and not by its own employees. It concluded that (p 738) “if it was intended by the severability of interests clause to provide coverage in a case like the present one, the language used was inadequate for the purpose.”

The United States Court of Appeals for the Fourth Circuit, applying West Virginia law, came to the opposite conclusion in Pepsi-Cola Bottling Co. of Charleston v. Indemnity Ins. Co., 318 F2d 714 (1963).

While this court is not bound by any Illinois authority directly in point on all the issues, it is persuaded that the better reasoning supports the view that the exclusionary clause clearly and unambiguously excludes the. hazard of the liability claim made by the employee, Carroll, and that it was intended that his injuries would be covered, as far as his employer’s liability and garage policy is concerned, by Workmen’s Compensation insurance. We find his situation and the hazard of his claim excluded under his employer’s policy.

Nor are we persuaded that the “severability” clause creates any change or ambiguity in the interpretation of the exclusionary clause. There is no evidence as to the purpose of that clause, added in 1955 to standard policies, including that of both Plaintiffs’ and Defendant’s policies here. The clause was added presumably by the insurance industry and not a particular insurance company. If it were intended to avoid the conflict in decisions, it could have been stated in clear language adequate to reconcile or avoid these conflicts. It was not so stated.

The judgment of the trial court is therefore reversed.

Judgment reversed.

MORAN and ABRAHAMSON, JJ., concur.


author: STOUDER, P. J.

text:
    Albert R. Young and Margie E. Young, Plaintiffs-Appellants, Counter-defendant-Appellant, and Defendant to Intervening Petitioner-Appellant, v. Charles N. Miller, Defendant-Appellee, and Counter-claimantAppellee, and Ellyn R. Miller, Intervening PetitionerAppellee.
    Gen. No. 66-59.
    Third District.
    February 21, 1967.

      Joseph L. Phelan, of Fort Madison, Iowa, and Samuel J. Naylor, of Carthage, for appellants.
    Johnson, Phelan & Tucker, of Fort Madison, Iowa, and Vilas C. Rice, of Carthage, for appellee.
   STOUDER, P. J.

Albert R. Young and Margie E. Young, Plaintiffs-Appellants, commenced this action in the Circuit Court of Hancock County for damages resulting from the alleged negligence of Defendant-Appellee, Charles N. Miller, in the operation of his automobile. Defendant Miller by counterclaim and Defendant’s wife by intervening petition, sought damages against Margie Young alleging the latter’s negligent operation of her automobile. Verdicts of the jury were returned in favor of Charles Miller and Ellyn Miller against Margie Young for $22,500 and $5,000 respectively, and the jury found against Plaintiffs on their complaint, the trial court entering judgments on such verdicts. Plaintiffs appeal from such judgments.

Plaintiff, Margie Young, was operating a motor vehicle in a westerly direction on highway 96. About one-half mile west of Dallas, Illinois, Plaintiff’s automobile was involved in a head-on collision with an automobile being operated by Charles Miller in which his wife Ellyn Miller was a passenger. It was snowing, gusty and the pavement was partially covered with snow and slush and probably slippery. The evidence is conflicting as to which vehicle crossed the center line.

In seeking a reversal of the judgments of the trial court Plaintiffs contend that the court erred in refusing Plaintiffs’ instructions on unavoidable accident and sudden emergency, that the court unduly restricted the cross-examination of one of Defendants’ witnesses, that improper evidence of impeachment was admitted into evidence and that no instruction concerning purported impeachment was given to the'jury.

We shall first consider Plaintiffs’ contentions that improper evidence of impeachment was introduced and that the trial court failed to properly instruct the jury in this regard. Plaintiffs argue that Margie Young was questioned on cross-examination on several occasions about contradictory statements which she was alleged to have made to her husband and to a state trooper. Neither the husband nor the state trooper although present during the trial was questioned with respect to such alleged contradictory statements.

The initial question presented by Plaintiffs’ argument is whether such error is in fact preserved for review. Chap 110, § 68.1 (2) Ill Rev Stats 1965, provides in part “. . . The post trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, . . . .” Said subsection also provides in part “. . . a party may not urge as error on review of the ruling on his post trial motion any point, ground or relief not particularly specified in the motion.”

Plaintiffs insist that paragraph 13 of their motion for a new trial is sufficient to preserve this error for review. Paragraph 13 is as follows, “In the whole record, the combination of occurrences at the trial, the nature and character of the evidence, and its great preponderance in Defendant’s favor, the Court should in its discretion order a new trial before a different jury.” In Perez v. Baltimore & O. R. Co., 24 Ill App2d 204, 164 NE2d 209, a paragraph in the post-trial motion alleged “The court erred in admitting improper evidence offered by the Defendant at the trial of said cause over the objection of Plaintiff.” In Perez the court ruled that such allegation was insufficient to authorize the reviewing court to consider any specific errors with respect to the admissibility of evidence.

The purpose of a post-trial motion is to direct the attention of the court to errors which may have occurred during the course of the trial and thus enable the court to correct such errors. It is also clear that if errors relied upon are of such little significance that their inclusion in a motion for a new trial was not deemed warranted, claims of an unfair trial based thereon, are without legal substance on appeal. We conclude that the motion for new trial failed to apprise the trial court of the error now relied upon and such error if any need not be considered on appeal. For the same reasons consideration of Plaintiff’s contention that the court erred in failing to give an instruction on impeachment is unnecessary, such objection not having been made in the post-trial motion.

We shall next consider Plaintiff’s assignments of error which are contained in this post-trial motion and renewed in this court, namely that the court erred in refusing Plaintiff’s instructions on unavoidable accident and sudden emergency. We believe the trial court properly refused these instructions. The drafters of the Illinois Pattern Instructions in section 12.02, dealing with sudden emergency, and section 12.03, dealing with unavoidable accident, recommend that no instructions be given on these subjects. The drafting committee concluded that although such instructions had frequently been given in the past they are argumentative, tend to confuse the jury, are in fact included within the concept of negligence and proximate cause and are likely to result in reversible error. According to the committee such matters are more appropriately a matter of argument by counsel and the concept of “accident” or “unavoidable accident,” having a peculiar meaning in law not apparent to a layman, instruction thereon should only be given under exceptional circumstances. An instruction on unavoidable accident is not properly given where there is evidence of negligence. Streeter v. Humrichhouse, 357 Ill 234, 191 NE 684 and Williams v. Matlin, 328 Ill App 645, 66 NE2d 719.

In the instant case each party alleged the other to be negligent, offered instructions in support of such allegations and argued that the evidence supported his view of the case. The Plaintiff in affirmatively asserting the existence of sufficient evidence to support a finding of Defendant’s negligence cannot complain when an instruction, dependent on the absence of evidence of negligence, is refused. We find no evidence in the record warranting the giving of an instruction on sudden emergency. Minnis v. Friend, 360 Ill 328, 196 NE 191. The instructions on negligence and proximate cause adequately included Plaintiff’s theory of the case.

Lastly, Plaintiff argues that his cross-examination of Dr. Archibald, a witness for the Defendant, was unduly restricted thereby depriving him of a fair trial. Dr. Archibald, in testifying in behalf of the Defendants, described his examination and treatment of Defendant and Defendant’s wife, commencing with their admission to the hospital on the date of the incident, and further described the nature and extent of their injuries. During his direct examination the witness was asked the following questions and gave the following answers, “Q. Did Charles Miller give you any history as to a loss of memory of how he received the injuries? A. No, may I qualify that? Q. Yes. A. In an injury like this, a person is seen injured and the doctor doesn’t necessarily question too much how the injury occurs. Even in our records we will put down the history as being noncontributory because we are interested in taking care mainly of the medical problem at hand, and where a car accident is involved, we frequently don’t question too much about what actually happened. In this case, I don’t believe I did.” In cross-examination the witness was asked, ‘T believe you testified that you talked to Mr. Miller and Mr. Miller gave you a history of the accident. Did Mr. Miller say anything to you about his automobile being picked up by the wind and thrown in the path of Mrs. Young’s automobile?” Objection to the foregoing question was sustained by the trial court and the witness did not answer the question.

The general rule is that cross-examination of a witness should be confined to matters brought out upon the direct examination. Muscarello v. Peterson, 20 Ill2d 548, 170 NE2d 564. The latitude to be allowed in cross-examination rests largely within the discretion of the court. McCray v. Illinois Cent. R. Co., 12 Ill App2d 425, 139 NE2d 817. The principal purpose of cross-examination is to enable the opposing party to elicit such facts as might tend to diminish or affect the credibility of the direct testimony. Since it is the effect of direct testimony which is involved, cross-examination must therefore bear some reasonable relationship to such direct testimony.

Both parties concede that Dr. Archibald misunderstood the question relating to the history of loss of memory, his qualification to his negative answer indicating that he considered the question referred only to a history of the accident. In his qualifying answer Dr. Archibald indicated that the injuries were clear and apparent, that a history was not required and that he did not believe one had been taken. Nowhere in the witness’s testimony does he refer to any account of the accident given to him by Mr. Miller nor is any of his testimony dependent either expressly or by implication on an account of the injury. Under such circumstances the question on cross-examination asked by Plaintiff could have no effect on the credibility of the Doctor’s testimony. On direct examination Dr. Archibald denied that a history of the accident had been given to him by Mr. Miller. The first sentence of the Plaintiff’s question on cross-examination was a flat statement that Dr. Archibald had received a statement from Mr. Miller regarding the circumstances surrounding the accident. The trial court did not abuse its discretion by sustaining the objection to this question, as this question on cross-examination was clearly contradictory to the testimony that had been given by Dr. Archibald under direct examination. If the Plaintiffs wish to question Dr. Archibald about the fact of having received a history of the accident from Mr. Miller, the Plaintiffs, on cross-examination, should have asked Dr. Archibald, “Did you receive a history of the accident from Mr. Miller?” In fact, the innuendo created by the question, unsupported by any other evidence that such a statement was made, might be deemed to have prejudiced the Defendant. The trial court did not abuse its discretion in sustaining the objection to such cross examination.

For the foregoing reasons the judgments of the Circuit Court of Hancock County are affirmed.

Judgments affirmed,

ALLOY and CORYN, JJ., concur.