author: Mr. JUSTICE DOWNING

text:
    Radie Slatten, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant.
    (No. 55481;
    First District (2nd Division)
    June 12, 1973.

      Rehearing denied July 25, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Peter Fitzpatrick, Assistant Corporation Counsel, of counsel,) for appellant.
    Philip E. Howard, of Chicago, (William J. Harte, of counsel,) for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

On September 17, 1964, Radie Slatten, plaintiff, a 68-year-old woman, allegedly tripped and fell on a public sidewalk near her home in the City of Chicago. Suit was instituted to recover damages from defendant for resulting personal injuries. A jury returned a verdict in favor of plaintiff in the amount of $44,000. The court entered .judgment on the verdict.

Defendant, in appealing from the judgment and denial of a motion for new trial, asserts it was denied a fair trial by,the court’s refusal to order plaintiff to appear for a discovery deposition before trial, and alleged prejudicial trial misconduct of plaintiff’s attorney.

To consider defendant’s principal claim of error, a detailed review of the evidence is not necessary. Defendant urges it was effectively prevented from taking plaintiff’s discovery deposition before trial as the result of the court orders and action of plaintiff. Plaintiff contends the court did not abuse its discretion and defendant was not prejudiced by the trial court refusing to postpone the trial. This issue depends entirely upon an understanding of the pre-trial discovery record. The following is a chronological review of the essential record:

Sept. 17, 1964 Accident.
Nov. 15, 1984 Plaintiff entered Cook County Hospital.
Jan. 19, 1965 Plaintiff served a Notice of Claim for Personal Injuries on defendant listing both Cook County Hospital and
Dr. Patejdl as attending physicians in addition to their respective áddr esses.
Jan. 22, 1965 Plaintiff filed her complaint.
Feb. 10, 1965 Defendant filed its answer.
Defendant filed written interrogatories to plaintiff and notice to plaintiff of such filing.
June 2, 1965 Plaintiff’s attorney took her evidence deposition in the presence of defendant’s counsel.
June, 1967 Plaintiff left Chicago to live in Tennessee. No notice to defendant.
Oct. 8, 1968 Defendant filed interrogatories to plaintiff.
Jan. 27, 1969 Plaintiff filed answers to defendant’s interrogatories.
June 9, 1969 Defendant served notice that plaintiffs discovery deposition would be taken on July 9, 1969.

Plaintiff failed to appear for her deposition on July 9, 1969, and, at the request of plaintiff's attorney, the deposition was continued to August 6, 1969. Plaintiff failed to appear.

Aug. 21, 1969 Defendant filed a motion to strike plaintiffs complaint and dismiss suit for her failure to appear at either deposition. The motion judge entered an order that plaintiff submit herself for a discovery deposition prior to trial or be barred from testifying at trial.
Aug. 28, 1969 Plaintiff, upon an attorney’s affidavit, filed a motion to vacate the August 21 order. The affidavit, in substance, noted the previous evidence deposition, that plaintiff was then 73 years old, an invalid, and residing in Tennessee. The motion judge vacated the August 21 order.
Sept. 16, 1969 Defendant filed a motion that the court either order plaintiff to appear for a discovery deposition or strike her complaint. Pursuant to that motion, the motion judge entered the following order:
“This cause coming on to be heard on motion of the defendant for an order for the plaintiff to appear for deposition, or in the alternative, to strike plaintiffs complaint for failure of plaintiff, Radie Slatten, to appear for deposition pursuant to notice, and the Court being advised in the premises:
IT IS HEREBY ORDERED the plaintiff appear for her discovery deposition prior to her appearing and testifying in person on the trial of this cause; and in the event she fails to so submit for a discovery deposition she will be barred from testifying in person on the trial, but none of the above will in any way prejudice plaintiffs right to have her Evidentiary Deposition read at the trial of this cause.”

On June 19 (Friday), 1970, in the late afternoon, the case was assigned for trial to Judge Herbert C. Paschen. On Monday, June 22 (before the trial judge), defendant moved that the City of Chicago be permitted to take plaintiffs discovery deposition the following morning and that the case be continued for 60 days to allow the defendant to conduct an investigation of the information produced by the deposition. After an extensive discussion and review of the record, the trial judge said:

‘Til put the case over until tomorrow morning to try in here— take a discovery deposition, see what develops, if anything.”

Defendant, relying upon its right to take a discovery deposition, declined the trial judge’s offer.

During tlie trial, defendant learned, for the first time, that two doctors other than those mentioned in the answers to its interrogatories had examined the plaintiff, and that plaintiff, at her attorney’s request, had returned to Chicago on April 4, 1970, for a medical examination.

One of the doctors testified as to his examination of the plaintiff on April 4, 1970, but the other, who had examined plaintiff some three weeks after the alleged fall, had died on February 15, 1969.

Plaintiff points out that her evidence deposition was taken on June 2, 1965, in the presence of defendant’s counsel, and that four and one-half years elapsed from the date of the accident before defendant sought a discovery deposition.

The Illinois Supreme Court rules provide (amongst other tilings) for both evidence and discovery depositions; orders to prevent abuse; time to initiate discovery; sequence of, and diligence in discovery (Ill. Rev. Stat. 1969, ch. 110A, par. 201). The rules further provide “If both discovery and evidence depositions are desired of the same witness they shall be taken separately # # S. Ct. Rule 202.

Clearly the supreme court rules authorize both evidence and discovery depositions, and do not set a time within which discovery must be completed. It follows that defendant had a right to take plaintiff’s discovery deposition unless defendant did not exercise due diligence in seeking the deposition. One year before the case was assigned for trial, defendant sought to take plaintiffs discovery deposition. Thereafter, plaintiff secured a continuance, failed to appear on the rescheduled date, and engaged in court actions, which effectively avoided plaintiff’s . appearance. In fact, approximately two and one-half months prior to the trial date, plaintiff appeared in Chicago for a physical examination. At that time, plaintiff did not advise defendant of her presence notwithstanding the aforesaid order of September 16, 1969; It is also to be noted that on June 22, 1970, in the colloquy between the trial court and counsel, at which time defendant requested the 60-day continuance, plaintiffs counsel did not mention that plaintiff had been in Chicago on April 4, 1970, and did not mention that she had been examined by a doctor who not only would testify for the plaintiff, but whose name and address had not been previously furnished to. the defendant:

It therefore follows that, in disposing of the issues before us, we must evaluate on the one hand, whether the defendant’s rights were affected by plaintiff’s actions subsequent to Judge Hallett’s September 16, 1969 order, while on the other hand, whether defendant exercised due diligence in its attempt to take plaintiff’s discovery deposition.

In In re Estate of Atwood (1968), 97 Ill.App.2d 311, 240 N.E.2d 451, a case involving the failure of a party to appear for a deposition, Mr. Justice Burman’s remarks are pertinent (p. 324):

“A litigant may not disobey the Court’s orders and then attempt to negotiate with the Court by offering to comply with an order more to his liking.
* # #
Judicial orders are the most solemn acts of the court, and if they are not obeyed they cease to be judicial; therefore, the remedy for enforcing these orders represents the life line of the court.”

In Tansey v. Robinson (1960), 24 Ill.App.2d 227; this court found the trial court abused its discretion in denying discovery depositions to the moving party and, thereafter, granting summary judgment to the other side. Mr. Justice Schwartz said (p. 235):

“Litigation is not to be regarded today as a battle of wits, but should be directed toward a discovery of the facts and an application of the law so that justice may be done. [Citations.]”

Plaintiff urges that this court’s decision in Anastos v. O’Brien (1972), 3 Ill.App.3d 1015, 279 N.E.2d 759, gives the trial court “wide discretion” in the fashioning of discovery orders, and that, absent some clear showing of prejudice, the defendant is not entitled to a new trial. (City of Chicago v. Albert J. Schorsch Realty Co. (1968), 95 Ill.App.2d 264, 279, 280, 238 N.E.2d 426, 434). The discovery problems involved in the cited cases are not comparable to the issue raised in this appeal.

Plaintiffs attempt to deprive defendant of a discovery deposition on the basis that it participated in plaintiff’s evidence deposition, overlooks the distinction in our supreme court rules. This distinction is clearly set forth in Cleary’s Handbook of Illinois Evidence, 2nd ed., par. 1.5, p. 7:

“Uniquely, Illinois distinguishes between depositions for discovery and depositions for use in evidence. The notice of taking is required to state the kind of deposition to be taken, and, absent specification, the deposition is for discovery only. Supreme Court Rule 19. (now Rule 202)
The difference is significant. Discovery depositions are used primarily to obtain information, to commit witnesses to particular stories, and to obtain admissions from opposing parties. Their admissibility in evidence is limited. See § 1.15 infra. Evidence depositions, on the other hand, are admissible as fully as would be the testimony of the deponent if present in person at the trial, provided the requirements of unavailability set forth in Supreme Court Rule 19-10(3) (now Rule 212(b)) are met.
Knowing in advance that a deposition is for discovery only and hence of limited admissibility, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously.”

The right of any party to a discovery deposition is basic and fundamental in todays adversary system, and, accordingly, the right of one party imposes a duty on the other party. That duty cannot be avoided by technical maneuvers or other conduct which results in destroying the purpose of modem discovery principles.

Defendant’s four and one-half year delay in commencing the discovery deposition procedure is not to be approved. However, in this case, defendant commenced efforts to secure the deposition one year before the case was assigned for trial. Thereafter, the record clearly established that plaintiff engaged in a course of action, the result of which defeated defendant’s right to the discovery deposition.

The September 16, 1969, order by Judge Hallett may be subject to more than one interpretation. However, we are confident the court did not intend to provide plaintiff a technical shield behind which she could hide in an effort to avoid the discovery deposition. In fact, a careful reading of the order suggests Judge Hallett undoubtedly intended that plaintiff’s evidence deposition be used at trial in lieu .of her testimony only if the prerequisites of unavailability set forth in Supreme Court Rule 212(b) exist. Plaintiff’s disregard of this order and the said discovery rules, coupled with the failure to advise defendant of plaintiff’s presence in the city over two months prior to assignment to trial, and the failure to advise the trial judge and counsel of this fact on the date of the motion for 60 days continuance, clearly constitute a course of conduct aimed at avoiding plaintiff’s duty to give a discovery deposition. Under such circumstances, compelling defendant to proceed to trial, without the benefit of a discovery deposition, violates defendant’s right to a fair trial.

Having reached the aforesaid conclusion, it is unnecessary to consider defendant’s claim of prejudicial trial misconduct of plaintiffs attorney.

The judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

STAMOS, P. J., and LEIGHTON, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HALLETT

license: Public Domain

text:
    Dorothy Yuhas, Plaintiff-Appellant, v. Allis-Chalmers Distribution Service Corporation et al., Defendants-Appellees—(William Creighton, Defendant.)
    (No. 56762;
    First District (1st Division)
    June 11, 1973.

      Horwitz, Anesi, Ozmon & Associates,.Ltd., of Chicago, (Nat P. Ozmon, Joseph Cerveny and Dario A. Garibaldi, of counsel,) for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, (D. Kendall Griffith and Joseph A. Camara, of counsel,) for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiff sued three Allis-Chalmers corporations (hereinafter collectively called Allis-Chalmers) and William Creighton, its local dealer, for injuries sustained by her during an attempt by him to remove certain keys from the ignition of an Allis-Chalmers crawler tractor on which she was physically located. The trial court after a pre-trial settlement conference, during which the court indicated a settlement figure which was not acceptable to the plaintiff, entered summary judgment for Allis-Chalmers on the ground that it was not responsible for Creightons actions and then, there remaining no Cook County defendants, transferred the case to LaSalle County where he resides. This appeal is from both orders.

The amended complaint alleged in substance that on August 31, 1967, Creighton wilfully or, in the alternative, negligently, injured the plaintiff during the corns e of an effort by him to remove certain keys from the ignition of a Caterpillar tractor on which the plaintiff was then physically located, and that Creighton, in that effort, was the agent, servant or employee of Allis-Chalmers. Its motion for summary judgment challenged its responsibility for his actions.

The discovery depositions of William Creighton, the dealer defendant, and Clinton Peters, the defendant AUis-Chalmers’ District Representative, were taken and filed.

Peters testified, in substance, as foHows:

He had been employed by the AUis-Chalmers Manufacturing Company for fourteen years as district manager. His duties consisted of: (1) calling upon dealers; (2) stocking dealers; (3) assisting deálers with sales; (4) collecting money from dealers for merchandise sold. He also assisted the dealer in writing up contracts, financing statements and in the computation of payment schedules. As to collection of payments, he collected from the dealer and only dealt with the purchaser through the dealer. His territory consisted mostly of LaSalle County and he had seven dealers in his area.

William Creighton was a dealer in Leland, Illinois. He was a dealer, not a distributor. Creighton owned his own business in Leland, Illinois, as an individual, and he sold AUis-Chalmers equipment and also New Holland equipment.

Peters had no authority over Creighton but he supervised the dealers in his area and made recommendations to them to lead them to a more profitable business. He assisted them in making sales.

He did get involved with the coUection of overdue payments. He would get notices from the Peoria Branch of AUis-Chalmers of payments which were past due. The dealer would also get a copy of this notice. He would put this notice in his dealer’s file which was located in his own briefcase and, the next time he called on the dealer, he would bring it to the dealer’s attention to see what action the dealer had taken. Sometimes he and the dealer would caU on a customer together. If payment was not made, repossession of the equipment might occur. He would assist in repossession. He had no authority to request a dealer, such as Creighton, to repossess a piece of equipment. He could ask to use the dealer’s equipment (such as a truck) to bring the equipment in.

If the dealer became “insecure,” he could demand full payment from the customer. A dealer’s insecurity could result from the condition of the machine, payment, or the manner in which the machine was being used. Allis-Chalmers could repossess a piece of equipment if it felt insecure. They became insecure in this case, but he did not know of any effort, on Allis-Chalmers’ part, to repossess the crawler tractor involved in this case. In this case, it was up to him to repossess since the “paper” covering the sale of this machine had been sold to AUis-Chalmers.

The dealer has a contract with Allis-Chalmers caUed a Dealer’s Sales and Service Agreement. AUis-Chalmers can cease and desist from doing business with a dealer if the dealer violates the contract. If a dealer doesn’t produce, Allis-Chalmers can go to a neighboring area and set up another dealership which will cut into the former dealer’s business.

He knows Robert Smith, the purchaser of the crawler tractor involved in this case. He met him at Creighton’s store in Leland, Illinois. Mr. Smith wanted to buy a crawler tractor. Eventually, the crawler tractor was sold to Mr. Smith. Mr. Peters assisted in drawing up the purchase agreement and the dealer’s purchase order. The dealer’s purchase order is the original agreement between the dealer and the customer with regard to the type of equipment to be sold.

A schedule of payments was worked out between Mr. Peters, Mr. Creighton and Mr. Smith. Mr. Smith was to make the payments directly to Allis-Chalmers in Morton, Illinois. This crawler tractor was financed through Allis-Chalmers. When the sale is made, the dealer normally gets one of three things: (1) cash; (2) a trade-in; or (3) a contract. The dealer sells the contract to Allis-Chalmers. The dealer signs a guarantee on such transactions. He guarantees payment by agreeing to repurchase the machinery if there is a default in payment.

If, in this case, Mr. Smith did not make payment, then Mr, Creighton, by virtue of his signed contract with recourse, would have to “pick up the tab”. In this case, Creighton, as part of his contract with Allis-Chalmers, agreed to sendee the product through the warranty period of six months.

The dealer receives no cash from Allis-Chalmers. This is a paper transaction. The dealer uses paper (a contract) to pay Allis-Chalmers. The dealer uses the paper to clear his inventory. A dealer such as Creighton receives income over and above the invoice cost of sale. Normally, a dealer’s profit is on the trade-in. A UCC-1 form, a financing statement, was filed in LaSalle County following the sale of the crawler tractor involved in this case. The vehicle was to remain in LaSalle County. He imagines it was his responsibility to see to it that the vehicle remained in LaSalle County. He never checked on the whereabouts of this crawler tractor. He has never been told to check on a piece of equipment.

Mr. Smith first became delinquent on payment in the summer of 1971. Mr. Peters received a notice. After receiving that notice, he put the notice in his Creighton file and planned to talk this over with Mr. Creighton when he next saw him. He received a second notice of payment due on Mr. Smith approximately two weeks to a month after the first notice, It is customary to discuss delinquency with a dealer and then go with the dealer to see the customer. He and Mr. Creighton called on Mr. Smith more than once. He never personally called on Mrs. Yuhas. He and Mr. Creighton discussed repossession on several occasions. They discussed repossession with Mr. Smith.

He never asked Mr. Creighton to repossess the crawler tractor involved in this case. He had no authority to ask Mr. Creighton to repossess that crawler tractor. Repossession was Mr. Peters’ responsibility. He didn’t recall any instance where Mr. Creighton went to repossess the tractor. He didn’t recall Mr. Creighton telling him that he had gone out in an attempt to repossess the crawler tractor. He never asked Mr. Creighton to keep track of the vehicle.

He was told by Mr. Creighton that the vehicle was missing. He suggested to Mr. Creighton that they both try and find the vehicle. They agreed to look for it. He did not recall any particular instance of his going to look for the tractor in the company of Mr. Creighton. He did not send Mr. Creighton to any particular place to look for the vehicle.

Mr. Creighton told him that the vehicle had been found. He may have asked a dealer if the dealer knew where a particular piece of equipment was. He never recalled asking a dealer to check on the particular piece of equipment without him. He made suggestions to a dealer. The dealer did not have to follow those suggestions. If the dealer did not follow his suggestions, he would personally follow-up on it himself. He has no control over the dealers in his area.

William Creighton testified, in substance, as follows:

In September of 1967, he was in business in Leland, Illinois, selling farm equipment. This business, which was in his name, had been operating since 1949. He sold both Allis-Chalmers' and New Holland machinery and Shoreline equipment. He had franchise agreements with New Holland and Allis-Chalmers.

He had no quota from Allis-Chalmers in terms of a dollar amount that he was required to sell. There was no requirement for him to balance sales between Allis-Chalmers and New Holland. He was not required to purchase a certain amount of service parts. Allis-Chalmers paid him a volume discount on sales. His compensation would be the difference between the purchase he made for Allis-Chalmers and the price he got from the ultimate consumer. He received no salary from Allis-Chalmers. He was allowed to take trade-ins.

When he sold a product, he was not required to use any particular financing corporation. It was up to the customer. If a customer wanted to go through Allis-Chalmers Acceptance Corporation to finance a purchase, he would take a financial statement from that customer and submit it to the acceptance corporation. If Allis-Chalmers Acceptance Corporation did not accept a customer, then there was no sale unless the customer obtained financing elsewhere, in which instance he would go through with the sale.

The Allis-Chalmers Acceptance Corporation would only be used on sales of Allis-Chalmers equipment. He was under no obligation to furnish a certain amount of business to them. The acceptance corporation had no control over the prices he would charge or the amount of the trade-in.

The acceptance corporation had a payment schedule. If the. customer did not forward his payment, Allis-Chalmers expected him to take care of getting the money. He was responsible for collections. Payment to the acceptánce corporation was either direct or through him. He would be notified by Allis-Chalmers of an overdue payment. He was not instructed as to a particular course of action after receiving notices concerning delinquency of payments.

He would act if he felt insecure. If either he or Allis-Chalmers felt concerned, they would contact the delinquent customer. He sent out his own personal statements of overdue accounts. He did not send out form letters belonging to Allis-Chalmers nor did he send out any letters which were composed by Allis-Chalmers. The district representative for Allis-Chalmers in his area was Clinton Peters. Mr. Peters called on him at least once a week in regard to sales.

The tractor involved in this case was sold to a Mr. Robert Smith and was financed by Allis-Chalmers Acceptance Corporation. A monthly statement schedule was set up. The tractor was bought by Mr. Smith for use by a Mr. Neal. There were many collection problems with regard to this tractor. He and Mr. Peters called upon “Mr. Smith and Mr. Neal”.

The tractor disappeared and Mr. Creighton asked the local sheriff to find it. The sheriff found the vehicle on the farm of Dorothy Yuhas. He went out to the Yuhas farm in the middle of August. He was not instructed by anyone to go there. No one told him what to do once he got there. He verified the fact that the vehicle was at the Yuhas farm.

He went back to the Dorothy Yuhas farm on September 2, 1967. No one instructed him to go out there or what to do once he got there. He went out to the Yuhas farm in a pick-up truck that was owned by him and which was part of his business. He was asked by Mr. Clinton Peter's if he was sure the vehicle was on the Yuhas property. He went out to see if the tractor was still there. He did this for both his and Allis-Chalmers’ assurance. Mr. Peters had no authority to order him to go out to the Yuhas farm and see if the tractor was still there. He had told Mr. Peters that the tractor had been found.

He had no intention of repossessing the vehicle on September 2, 1967. He just wanted to verify the fact that it was still on the Yuhas property. It was not decided until after September 2, 1967, to get the crawler tractor off the Yuhas property. He denied any physical contact between himself and Dorothy Yuhas on September 2, 1967.

Between his August and September 2, 1967, visits to the Yuhas farm, he had talked to Mr. Smith about delinquent payments. Prior to his August visit to the Yuhas farm, he had attempted to repossess this vehicle from Mr. Smith on more than one occasion. He was directed to do so by Allis-Chalmers. He never completely repossessed the tractor. He was in charge of repossession. His men and he began actual repossession. He paid the men who assisted him in the repossession attempts and only his equipment was used during these attempts. No compensation was paid to him or his employees by Allis-Chalmers for the attempt at repossession.

He was not instructed nor was he intending to repossess the tractor involved in this case on September 2, 1967. A decision on repossession was a mutual decision to be made by himself and Mr. Peters. He did not have to have Mr. Peters’ permission to repossess. He would have obtained Mr. Peters’ consent before attempting repossession.

Determination of the issue of whether the relationship of principal and agent, or owner and independent contractor exists, unless the relationship is so clear as to be undisputed, is a question of fact to be decided by the jury.

In Hulke v. International Mfg. Co., 14 Ill.App.2d 5, 142 N.E.2d 717, in affirming a jury verdict and judgment for the plaintiff, the court, at pages 32-33, said:

“It is contended by defendant that the court erred in submitting to the jury the question of the existence of an agency or employee relationship between Bunge’s and Shelly with respect to the particular transaction out of which plaintiffs alleged their injuries arose. The law is clear that generally a master is liable for the acts of his servant and that a principal is liable for the acts of his agent, but that generally neither is liable for the acts of an independent contractor. Usually an agent is paid differently, has more freedom of action, and requires less supervision than a servant. An agent usually has more authority, works alone and has some discretion, not being subject to constant supervision and control of the principal. Unless the relationship is so clear as to be undisputed, the relationship between principal and agent is a question of fact for the jury to determine from all the evidence. The Supreme Court of Illinois has frequently stated that the right or duty to supervise and control, and not the exercise of the right, determines the relationship. The relationship of principal and agent exists if the principal has the right or duty to supervise and control and to terminate the relationship at any time, even though he does not exercise that right. Hartley v. Red Ball Transit Co., 344 Ill. 534, 539; Lawrence v. Industrial Com., 391 Ill. 80, 87; Darner v. Colby, 375 Ill. 558; Shannon v. Nightingale, 321 Ill. 168.
[22] While defendant Skelly places particular emphasis on thát part of the written Distributor Agreement between Bunge’s and defendant Skelly which recites that Bunge’s are the agents of defendant Skelly only for the purpose of leasing “Skelgas” equipment to “Skelgas” consumers, plaintiffs not being parties to the agreement are not conclusively bound by its terms. Other evidence tending to prove what the true relationship was between Bunge’s and defendant Skelly was admissible to be considered by the jury as a question of fact in determining if Bunge’s were the agents of defendant Skelly. Komorowski v. Boston Store of Chicago, 263 Ill. App. 88, 95; Washburn & Moen Manufacturing Co. v. Chicago Galvanized Wire Fence Co., 109 Ill. 71, 79; Reams v. Janoski, supra., p. 12; Northern Assur. Co. v. Chicago Mut. Building & Loan Ass’n, 198 Ill. 474, 477, 478; Hartley v. Red Ball Transit Co., supra., p. 542.” (Emphasis ours.)

In Tansey v. Robinson, 24 Ill.App.2d 227, 164 N.E.2d 272, in reversing a summary judgment for the defendant and remanding the cause, this court, at pages 233-234, said:

“The written contract is not conclusive of the relationship which may actually have existed between A & P, Robinson, and A & P’s customers. That depends upon the actual practice followed by die parties and, as a general rule, becomes a mixed question of law and fact to be submitted upon proper instructions to a jury. Determination of the question of whether the relationship of employer and employee, principal and agent, or owner and independent contractor exists depends upon such facts as the matter of hiring, the right to discharge, the manner and direction of servants, the right to terminate the relationship, and the character of the supervision of the work done. Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 45 N.E. 2d 665 (1942). Unless those facts clearly appear, the relationship cannot become purely a question of law. Thiel v. Material Service Corp., 364 Ill. 539, 5 N.E. 2d 88 (1936). See also Jones v. Standerfer, 296 Ill. App. 145, 15 N.E. 2d 924 (1938); Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W. 2d 341, 343 (1949); 27 Am. Jur., Independent Contractors, sec. 60 (1940).” (Emphasis ours.)

In Donovan v. Raschke, 106 Ill.App.2d 366, 246 N.E.2d 110, in reversing a judgment for the owners of a building based on a directed verdict, this court at page 372, said:

“Determination of the issue of whether the relationship of principal and agent, or owner and independent contractor exists, unless the relationship is so clear as to be undisputed, is a question of fact to be decided by the jury. Thiel v. Material Service Corp., 364 Ill. 539, 5 N.E. 2d 88 (1936); Hulke v. International Mfg. Co., 14 Ill.App.2d 5, 142 N.E.2d 717 (1957). And in Tansey v. Robinson, 24 Ill.App.2d 227, 164 N.E.2d 272 (1960), this court found that what relationship existed depended upon such factors as the hiring, the right of discharge, the direction given to the employee, and the character of the supervision of the work.” (Emphasis ours.)

Without unduly extending this opinion by the restatement of the deposition testimony of William Creighton, the defendant dealer, and Clinton Peters, the defendant Allis-Chalmers’ District Representative, we are of the considered opinion that such testimony, under the authorities above cited and discussed, presents a material question of fact to be decided by the jury as to whether the relationship of principal and agent or manufacturer and independent contractor exists. In Ryan v. Associates Investment Co., 297 Ill.App. 544, 18 N.E.2d 47, heavily relied upon by Allis-Chalmers, the relationship between the Associates and the tow truck operator was much less closely entwined than the relationship presented by the testimony in the case at bar.

This, for all practical purposes, disposes of the case, inasmuch as it is well settled that, if a material issue of fact exists, summary judgment is improper, and the case must be submitted to the jury for its determination.

In Barkhausen v. Naugher, 395 Ill. 562, 70 N.E.2d 565, in reversing a summary judgment, our Supreme Court, at page 567, said:

“Where, as here, it is apparent that a controversy does exist, the entry of a summary judgment is improper. The provisions of the statute and the rules were intended to facilitate litigation and to expedite trial procedure through the use of the summary judgment. This, however, cannot be employed where it is shown that there is an actual dispute as to the facts and that there exists a triable issue,”

Perhaps the clearest statement covering the use of summary judgment is that of Mr. Justice Davis (then on the Appellate Court for the Second District but now on our Supreme Court) in Ruby v. Wayman, 99 Ill.App.2d 146, 240 N.E.2d 699, where, in reversing a summary judgment in favor of the defendant, he said, at pages 149-150:

“The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958)); however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Solone v. Reck, 32 Ill.App.2d 308, 310, 311, 177 N.E.2d 879 (1961); Tezak v. Cooper, 24 Ill.App.2d 356, 362, 363, 164 N.E.2d 493 (1960).
Section 57 provides that a summary judgment should be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.
Courts have construed this section to mean that in determining if there is a genuine issue, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts, then a triable issue exists. Peirce v. Conant, 47 Ill.App.2d 294, 300, 198 N.E.2d 555 (1964).
In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Solone v. Reck, supra., 311. A summary judgment should then be granted where the moving party’s right thereto is clear and free from doubt. Palier v. Dreis & Krump Mfg. Co., 47 Ill.App.2d 334, 338, 198 N.E.2d 521 (1964); Solone v. Reck, supra., 310.
Applying these principles, we believe that the trial court should not have granted a summary judgment in favor of the defendant. The only function of the court, when presented with a motion for summary judgment, is to determine if a genuine issue exists as to a material fact; if not, summary judgment is proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue.”

To the same effect, see:

Tansey v. Robinson, 24 Ill.App.2d 227, 236-237, 164 N.E.2d 272; Tezak v. Cooper, 24 Ill.App.2d 356, 362-3, 164 N.E.2d 493; Solone v. Reck, 32 Ill.App.2d 308, 310-311, 177 N.E.2d 879; Lumbermens Mut. Cas. Co. v. Poths, 104 Ill.App.2d 80, 87-88, 243 N.E.2d 40; Southland Corp. v. Hoffman Est., 130 Ill.App.2d 311, 319-320, 264 N.E.2d 451.

Having concluded, first, that a material issue of fact exists, and, second, that this renders summary judgment improper, we reverse the summary judgment entered below on behalf of Allis-Chalmers, reverse also the order transferring the case to LaSalle County and remand the cause with directions to proceed in a manner consistent with the views above expressed.

Summary judgment and order transferring case reversed and cause remanded with directions.

GOLDBERG and EGAN, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas Bynum, a Minor, Defendant-Appellant.
    (Nos. 57324, 57846 cons.;
    First District (1st Division)
    June 11, 1973.
   PER CURIAM.

GOLDBERG, J,, took no part.

Kenneth L. Gillis, of Defender Project, of Chicago, (Kenneth L. Jones, of counsel,) for appellant.

Bernard Carey, State’s Attorney; of Chicago, (James S. Veldman and Thomas G. Passarelli, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cevel Arnold, Jr., Defendant-Appellant.
    (No. 55745;
    First District (2nd Division)
    June 12, 1973.

      Joan M. PuciHo, of Chicago, for appeUant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Ronald Lake, and James Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

. .On 14 July 1970, Cevel Arnold, defendant-appellant (hereafter defendant), was indicted by the Cook County grand jury, under general number 70-2018, for the murder of Howard Smith. Defendant pleaded not. guilty. On 12 August 1970, after a jury trial, defendant was found guilty of the lesser included offense of involuntary manslaughter. He was sentenced to a term of not less than 6 nor more than 10 years. This is defendant’s appeal from that conviction.

The evidence disclosed that, shortly before midnight on 8 April 1970, one Howard Smith was shot and killed in a tavern known as Smitty’s Lounge, located at 3713 West Roosevelt Road in Chicago. Defendant testified that he arrived at Smitty’s Lounge some time between 9:00 and 9:30 P.M. on the night of the incident. Shortly after he arrived, he was at the bar speaking to one Ricky Brown when he was approached by a man known to him only as “James.” He had seen “James” around the lounge before, but he did not know his last name nor where he lived. A transaction ensued between defendant and “James” wherein defendant loaned “James” fifteen dollars and received a handgun as security. Defendant thereupon handed the gun to Ricky Brown who, in turn, put it under the bar. Whether Ricky Brown witnessed the transaction between defendant and “James” is not clear from the record.

While the details vary, the evidence indicates that, at a later time that same night, defendant and the victim and one John Earl became involved in an argument at the rear of the lounge. The nature of the argument is not apparent from the record, but it led the three men to go out the rear door of the lounge. John Smith (the owner of the lounge) and Willie Brown (an employee) who were then working just outside the rear door, both testified to the fact that the argument between defendant and the victim became physical, requiring intervention by John Smith. Defendant then went back inside the lounge, retrieved the gun that he had given to Ricky Brown earlier that evening, and returned to the outside of the rear door. Shortly thereafter the victim reentered the lounge, closing the rear door behind him. Defendant pushed the door open, fired one shot, and the victim fell to the floor with a bullet wound in his back, from which he subsequently died.

Defendant testified that he got the gun in order to scare the victim from “going to get his gun," since he had been “known to pull a gun before”; that he had called for the victim to stop; that John Smith then “grabbed the gun from my hand and the gun went off.” John Smith and Willie Brown agreed that they had indeed grabbed the gun from defendant’s hand and taken it away from him, but that they had done so only after he had fired the weapon. No one saw a gun in the victim’s possession.

On this appeal, defendant relies on two allegedly reversible errors. Both occurred during the prosecutor’s final argument to the jury.

Defendant’s initial contention is that it was error for the prosecutor to comment upon the failure of the defense to call “James” as a defense witness. The prosecutor’s comment was as follows:

“I say the conflicts the defendant’s testimony raises are incredible in the light of the clear and convincing evidence we have presented in our case. Where is James? Why is the man who gave him the gun not here? Why isn’t he here? James, without a last name. Where does James live * * *?”

There was no objection by the defense to this comment. .

Defendant relies on People v. Munday (1917), 280 Ill. 32, 117 N.E. 286, in support of his contention that this comment constitutes reversible error. In Munday, the prosecutor commented upon the failure of the defense to caU certain witnesses who had been jointly indicted with the appellant. Beyond this, however, the prosecutor stated to the jury that it was the appellant’s duty under the law to produce these witnesses since they could have substantiated the theory of the defense. The Illinois Supreme Court held that the prosecutor’s argument was substantial prejudicial for two reasons. Hie court stated the general rule as follows:

“While there is some apparent conflict in the authorities, the general rule is that the omission or failure of a defendant in a criminal prosecution to call as witnesses those who could testify of their own knowledge to material facts raises no presumption of law that if caUed they would have testified unfavorably to him, but the jury may consider his failure to produce or to endeavor to produce such witnesses as a circumstance in determining his guilt, provided it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.” [Citations.]

Since in Munday the missing witnesses were under indictment, and therefore either in custody or at liberty on bail, it did not appear to the court that they were any less accessible to the State than they were to the defendant-appellant. The court went on to say that the prosecutor went “further than merely offending against the general rule” by asserting that it was the duty of the defendant to call certain witnesses, while, in fact, the law imposes no such duty upon him.

In the present case, the assistant State’s Attorney made no suggestion that defendant had any duty to produce the man who gave him the gun. Nor does it appear that the man named “James” was accessible to or could even be identified by the State.

A fact situation closer to the present one is seen in the case of People v. Carr (1969), 114 Ill.App.2d 370, 252 N.E.2d 912. In Carr, the prosecutor, in his remarks to the jury, argued that if the defendantappeUant’s story were true, he would have produced certain witnesses to corroborate his testimony. The court, relying on People v. Munday (1917), 280 Ill. 32, 117 N.E. 286, stated that “the rule is that the State may not in closing argument draw adverse inferences from a defendant’s failure to call a particular witness unless it is manifest that the witness is more accessible to the defendant than to the State.” The court then inferred that defendant’s father, a friend, and the friend’s unnamed girl friend were more accessible to defendant than to the State. In the present case, defendant knew what “James” looked like, since he had seen him before in the lounge. He knew his first name. He knew him well enough to lend him money. It is a fair inference that “James” was more accessible to defendant in this case than to the State.

In another similar case, People v. Poole (1970), 121 Ill.App.2d 233, 257 N.E.2d 583, the court held that there was no error committed by the prosecutor in commenting on the defendant’s failure to produce certain witnesses to corroborate his defense. In affirming the lower court decision, the court relied on People v. Williams (1968), 40 Ill.2d. 522, 529, 240 N.E.2d 645, 649, 650, where the Supreme Court stated:

“* * * It is our conclusion that though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution. * * * In other words, the rule may be stated that, in the absence of express prohibition, every fact which, in no illegal manner, comes to the knowledge of the jury during the progress of a trial, and which may reasonably influence their judgment is a proper subject of comment in argument.”

To consider the assistant State’s Attorney’s comment in the present case in its most prejudicial light, the comment infers either that there was no “James” or that, if there was a “James”, he would not have corroborated defendant’s testimony about the pawning of the gun. Either inference in turn would lead to the conclusion that defendant brought the gun with him into the tavern, thus tending to supply the necessary intent or mens rea for the instant charge of murder. Since, however, defendant was found guilty of the lesser included offense of involuntary manslaughter, it is impossible that defendant’s failure to call “James” was relied on as “substantial proof of the charge.” And since in this case there is other evidence to support defendant’s guilt, there was no error committed under the Williams principles.

Further, it should be noted that defendant’s attorney failed to object when the comment in question was made. Where there is no objection, errors stemming from the prosecutor’s remark to the jury are deemed waived unless they are so prejudicial that the reviewing court must consider whether they affected the outcome’ of the case. People v. Hampton (1969), 44 Ill.2d 41, 253 N.E.2d 385; People v. Boyce (1969), 113 Ill.App.2d 266, 252 N.E.2d 71.

Defendant’s second contention asserts the prejudicial impropriety of two other remarks made by the assistant State’s Attorney during his final argument to the jury. The first remark is as follows:

“I submit that you will find the defendant guilty of murder. We have proven him guilty beyond a reasonable doubt by all of this evidence. When you return, go back to the jury room, you will receive the verdicts, and if you feel that this defendant did act recklessly, didn’t mean to do what he was doing then find him guilty of involuntary manslaughter. If you believe someone else did this, cut him loose, and he will walk out of the room. He will walk back to Roosevelt and Lawndale, and he’s going to laugh at everyone of us, especially ladies and gentlemen of the jury.” (Emphasis added.)

An objection was made by defense counsel and sustained by the court; however, no added specific instruction to disregard the remark was given to the jury. The assistant State’s Attorney went on:

“I submit ladies and gentlemen we have proven our case. The evidence, you have heard. We know what the evidence is. You are the tryers [sic] of facts. This is where the buck stops. No one else makes a decision. I submit you return a verdict of guilty of murder. You will have done your duty according to the law and the facts and the evidence in the case.”

Again defense counsel objected, but this objection was overruled by the court.

Defendant contends that the court failed to keep the prosecutor’s closing argument within proper limits by not specifically instructing the jury to disregard the prosecutor’s first remark, and by overruling the objection to his second remark. Defendant asserts that these remarks were highly prejudicial and were designed to arouse the passion of the jury, thus depriving him of a fair trial. He specifically contends that, were it not for these remarks by the prosecutor, he would have been acquitted.

We agree with the trial judge that the first remark was highly improper. It had no connection with any evidence in the case and was clearly inflammatory in nature. However, an objection was made to it and the objection was sustained. No request was made by defense counsel for an immediate, additional specific instruction to disregard the remark. We take judicial notice of the fact that the giving of such an immediate specific instruction tends to bring the improper remark even more sharply to the attention of the jury. For that reason, it is the practice of many trial judges not to add the specific instruction unless requested to do so by counsel who has successfully objected. We approve that practice and the reason for it to the extent of holding that the trial judge is under no duty to add the specific instruction sua sponte. We do not hold, of course, that it would be error to do so. People v. Black (1970), 130 Ill.App.2d 998, 266 N.E.2d 458.

In this case we note also that, before retiring, the jury was given, inter alia, at the instance of the State, a relevant general instruction (IPI —CRIMINAL 1.03) that closing arguments are not part of the evidence, and that any statement or argument made by the attorneys which was not based on the evidence should be disregarded. See People v. Pieper (1951), 410 Ill. 15, 101 N.E.2d 109.

Considering all these facts in the light of the strong nature of the evidence against defendant in respect of the verdict of involuntary manslaughter, we feel, that the error committed by the assistant State’s Attorney was not substantially prejudicial.

As to the second remark, regarding the jury’s duty to find the defendant guilty of murder, we see no error, since the remark was predicated upon “the law and the facts and the evidence in the case.” Moreover, any mention of murder in either comment was harmless, since there was obviously no reliance on it by the jury, as shown by their verdict of involuntary manslaughter.

■ Although not raised by defendant, this court takes notice that the sentence of six to ten years is excessive in light of recent legislation. Section 8 — 2 — 4 of the Unified Code of Corrections states in pertinent part:

“If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008 — 2 — 4 (effective January 1, 1973, par. 1008 — 6 — 1).

The offense of involuntary manslaughter is now characterized as a Class 3 felony. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 9 — 3. Class 3 felonies have a maximum term of "any term in excess of one year and not exceeding ten years.” (Ill. Rev. Stat., .1972 Supp., ch. 38, par. 1005— 8 — 1(b) (4).) The minimum term, for a Class 3 felony “shall be one year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one third of the maximum term set in that case by the court.” (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8 — 1(c) (4).) Here the minimum term imposed on defendant exceeds one-third the maximum term actually imposed.

Since this cause had not been finally adjudicated as of the effective date of the Unified Code of Corrections, defendant is entitled to the benefit of its provisions which would lessen his minimum sentence. We affirm the judgment of the lower court, and remand this cause to the circuit court of Cook County for proper resentencing. People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269.

Affirmed and remanded with directions.

STAMOS, P. J., and LEIGHTON, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Ezell O. Jenkins, Petitioner-Appellant.
    (No. 56870;
    First District (2nd Division)
    June 12, 1973.
    Gerald W. Getty, Public Defender, of Chicago, (John E. Hughes and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

DOWNING, J., took no part.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illiinois, Plaintiff-Appellee, v. William Tripplett, Jr., et al., Defendants-Appellants.
    (No. 72-121;
    Second District
    July 9, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellants.
    Philip G. Reinhard, State’s Attorney, of Rockford, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

After a bench trial the defendants, William Tripplett, Jr. and Larry Lee, were found guilty of armed robbery; each was sentenced to serve from 3 to 10 years in the penitentiary.

On appeal, Tripplett alleges that the trial court erred in refusing to grant a motion to suppress his statement given to the police; Lee alleges that error occurred during his probation hearing when an improper question was asked by the state’s attorney; both defendants argue that their sentences are excessive.

Tripplett was arrested at 5 P.M., March 13, 1971. After being told of his rights and signing a written waiver, he stated that he did not wish to talk to the police. He called his mother to inform her that he was being held at the city jail; an officer present also spoke with her stating that defendant’s bond would be $500 cash.

At 10:30 P.M., defendant’s mother arrived and informed the city jail desk officer that she had brought the bond money for her son. It was not the practice of the police to accept bond for State violations at the city jail; she was directed to go to the county jail and wait 15-20 minutes.

At 11:30 P.M. two policemen removed defendant from his cell, and again advised him of his rights; he signed another rights waiver. At 11:50, after being informed that two alleged accomplices had given statements implicating him, the defendant commenced his statement which was completed in approximately one-half hour. At 1:00 A.M. defendant was conveyed to the county jail; he was released on bond shortly after 2:00 A.M.

At the hearing on the motion to suppress, defendant testified that the police officers told him that his mother was present to post bond but that “I wasn’t going nowhere until I told them something.” One of the officers testified that he was unaware that defendant’s mother had arrived to post bond. The other officer testified that he had been informed that defendant’s mother was waiting to post bond but that he was unsure whether this message had been relayed during or after the time defendant made his statement. This conflict presented an issue of credibility to be resolved by the trial judge. He did so in favor of the State by holding the statement to be voluntary. We, therefore, decide the issue presented based upon the facts as related by the police officers.

Defendant argues that his statement should have been suppressed not because it was involuntarily given, but because it was obtained at a time when his constitutional right to bail was violated. Generally, a statement may be attacked on the grounds that the defendant has been unlawfully detained and this factor, together with other facts, forms a basis for the trial court in determining whether such statement is voluntary. (See, People v. Harper, 36 Ill.2d 398 (1967); People v. Thomas, 132 Ill.App.2d 198, 202-203 (1971).) However, this is not defendant’s position in the instant case. Defendant concedes the voluntariness of the statement but asks that the court declare it inadmissible on the grounds that it was obtained during a time when he should have been released on bail. Defendant seeks to have us adopt an exclusionary rule which would render per se inadmissible any statement gained at a time when the right to bail has been violated. We have not been cited, nor has our research revealed any court which has passed upon this proposition. Consideration of whether to adopt such rule would first necessitate our determining that defendant’s constitutional right to bail was violated. That determination must consider not only time delay but the reasonableness of that delay as it relates to the total circumstances of the individual case. Under the facts here, we do not find the delay unreasonable. We hold that defendant’s constitutional right to bail was not violated and therefore will not consider adoption of an exclusionary rule. The trial judge properly denied suppression.

Defendant Lee alleges that error occurred during the probation hearing when defendant was asked, over objection, whether he had been involved in any armed robbery other than the one for which he now stood convicted. Defendant declined to respond, claiming his Fifth Amendment privilege against self-incrimination. We need not pass upon the propriety of the question for, unanswered, the question itself was not prejudicial. However, defendant’s argument suggests that the trial court became irritated by his refusal to answer; that, thus, the mere utterance of the question had a prejudicial effect. The record is devoid of any evidence to substantiate such claim and we, therefore, find no prejudice resulting from the question.

Finally, both defendants allege that their 3 to 10 year sentences were excessive. Many witnesses testified to the rehabilitation potential of both defendants. The judge, however, stressed the fact that armed robbery was a serious offense and sentenced defendants to a term, the minimum of which was only one year greater than the minimum allowed by statute. (Ill. Rev. Stat. 1969, ch. 38, sec. 18—2(b).) We have reviewed the record and conclude that the sentences were not excessive.

Finding no error, we affirm the judgment of the lower court.

Judgment affirmed. •

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

       We take note of the fact that in 1971, the statutory minimum was changed to 5 years, Ill. Rev. Stat. 1971, ch. 38, sec. 18—2(b)) and that the current minimum is 4 years. See, Ill. Rev. Stat. 1972 Supp., ch. 38, sec. 18—2(b) and 1005—8—1.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rodames Alequin, Defendant-Appellant.
    (No. 72-172;
    Second District
    July 9, 1973.
    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva, and James R. Edwards, of Aurora, for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant was indicted for burglary, pled guilty and, after denial of probation, was sentenced to serve one to five years.

A portion of the burglary indictment recites that the defendant did “knowingly enter or remain within the building of William Guy Roberts, known as the Buy Rite Grocery Store * * * with intent to commit therein a felony or theft.” Because the words “without authority,” found in the statute, were not included in the charge, defendant claims the indictment invalid. We hold that the indictment, under the circumstances, is valid. The basis for our holding is found in a recent appellate opinion where the identical issue was decided. See, People ex rel. McLain v. Housewright, 9 Ill.App.3d 803; 293 N.E.2d 911 (1973); appeal denied, 53 Ill.2d (No. 45790, May 31s, 1973).

Defendant further contends the trial court failed to properly admonish him under Supreme Court Rule 402 prior to acceptance of his plea of guilty. We agree.

On January 7, 1971, the defendant and two co-defendants were arraigned under the same burglary charge. After appointing counsel who was present in court at the time, the court stated:

■ “All three of you are entitled to be tried by a jury or a trial before the court. Burglary carries a penalty of possible imprisonment in the penitentiary of not less than one year nor more than infinity. The only way I know to explain infinity is the end of the world.”

After this statement, to which there was no response, the defendant was furnished a copy of his written statement, a list of witnesses to an oral statement and a copy of the indictment. The court then said:

“I take it you are entering a plea of not guilty and requesting a jury trial?”

Defense counsel replied:

“That is correct, your Honor.”

Defendant next appeared before the court on March 8, 1971, represented by different counsel, who stated:

“I have had a discussion with Mr. Alequin * * * regarding the file that I think is sufficient at this time to make a motion to withdraw the plea of not guilty and enter a plea of guilty. And I have prepared a written plea to that effect.

Court: Has Mr. Alequin signed that?

Counsel: Not yet, your Honor. Your Honor, he had previously read it. I was just waiting to get in open Court to sign it.”

The court then inquired of defendant’s age, education, whether he had been in a mental institution, if he was a.user of drugs, and continued:

“So you know what you are doing? Nobody promised you or threatened you to sign your name to a plea of guilty?

Defendant: Yes sir, I know what I am doing.

Court: In other words this is your free and voluntary act; right?

Defendant: Yes, sir.

# # #

Court: Your motion is granted and a plea of guilty will be filed.”

There followed a denial of probation and the defendant was sentenced.

The State’s position is that the court’s remarks at the time of arraignment, its questions at the time of the plea, and a thirteen paragraph ■document, labeled “a written plea of guilty” and signed by the defendant, taken together, show a substantial compliance with Supreme Court Rule 402 and thus constitute a proper admonition.

We agree that the voluntariness of the plea was ascertained at the time the plea was accepted, in accordance with Rule 402(b), and that a factual basis for the plea was established during the hearing on probation, in accordance with 402(c).

However, we find no merit to the State’s position that the remarks of the court (at arraignment), supplemented by the written plea of guilty (at the hearing on the entry of the plea), fulfilled the requirements of Rule 402(a)(4). This Court has previously determined that a written plea of guilty will not serve as a substitute for the rule’s requirement that the trial court personally address the defendant in open court. (People v. Cummings, 7 Ill.App.3d 306, 308 (1972).) Neither can we accept the State’s argument that the remarks of the court, made during the arraignment proceedings, were sufficient to. establish part of the admonishment. The court did not ask defendant if he desired to waive a trial by jury, but merely informed him that he had a right to jury trial. The fact that defendant did not respond is further indication that the judge’s remarks were taken as a statement rather than an inquiry. The State’s contention (that the court intended its remarks to be part of the admonition and that the defendant knowingly understood the remarks to constitute a waiver of jury) is dispelled by the court’s final question at the time: “I take it you are entering a plea of not guilty and requesting a jury trial,” to which defendant’s counsel replied, “[T]hat is correct, your Honor.”

For the reasons stated, we find the defendant was inadequately admonished and, therefore, reverse the judgment of the trial court and remand this cause with directions that the plea of guilty be vacated and the defendant allowed to plead anew.

Reversed and remanded with directions.

GUILD, P. J„ and SEIDENFELD, J, concur.


author: Mr. JUSTICE SEIDENFELD

text:
    Janssen Brothers, Inc., Plaintiff-Appellee, v. Northbrook Trust & Savings Bank, as Trastee, Defendants-Appellants.
    (No. 72-368;
    Second District
    July 9, 1973.

      Churchill & Baumgartner, of Grayslake, for appellants.
    Weinstein, Myer, New & Berlin, of Chicago, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

This appeal questions the propriety of the trial court’s order, entered upon the representations of plaintiff’s counsel, and.without the taking of evidence, granting plaintiff leave to deposit a sum of money in escrow pursuant to a settlement agreement between the parties, although such deposit was tendered after the date specified in the agreement.

The facts are undisputed. This action was brought initially to recover damages for the breach of a certain lease and option agreement, and the complaint was then amended to include an additional count to establish that a deed to plaintiffs property running to defendants, and a lease back to plaintiff, were, in fact, intended only to establish a security interest in defendants. A hearing was had on the latter issue, and an order entered for plaintiff. Defendants then filed a counterclaim for foreclosure of the security interest.

On July 13, 1972, a comprehensive settlement agreement was reached with the court’s assistance, and was dictated into the record. Under its terms, an escrow was to be created with Chicago Title Insurance Company. Each of the parties had held title in a trust, and was to deposit in the escrow, a deed to the trustee for the other party, along with any other documents which would be necessary to clear any title objections which might exist. Plaintiff was to deposit with the title company a sum of money sufficient to pay its obligation to the defendants, less certain credits claimed by plaintiff. If all of plaintiff’s deposits were timely made, as required in the escrow, so that Chicago Title Insurance Company was in a position; by the close of business on September 11, 1972, to pay out all of the items agreed to, the deed from the defendants to the plaintiff was to be recorded, and the sums deposited by plaintiff delivered to the parties entitled, to them. If the deposits were not made by the close of business on September 11, 1972, the deed from the plaintiff to the defendants was to be recorded and, with certain minor exceptions, all funds deposited were to be refunded to plaintiff. The operation of the escrow was to be automatic, the court stating, “if the money isn’t deposited, the recording of certain deeds will be automatic. If the money is deposited, the recording of the deeds will be automatic s * a » -p2ie court retained jurisdiction for purposes of enforcement.

On September 15, 1972, plaintiff sent a notice to defendants that it would appear on September 19, 1972, and “request the court’s instructions regarding that certain Stipulation heretofore entered in the above entitled cause and Escrow No. 6085 at the Chicago Title & Trust Company, Lake County Division, entered into by the parties pursuant to said Stipulation.”

On September 19, 1972, the parties appeared before the trial judge. No evidence was introduced and no documents were presented. Counsel for the plaintiff represented to the court, however, that an escrow agreement had been entered into in conformity with the stipulation; that the plaintiff had made a timely deposit of a portion of the funds required and had, on September 11, 1972, deposited a letter from McHenry Savings and Loan Association indicating that the Association was willing to give the plaintiff a first mortgage in an amount which would give it sufficient funds to comply with the escrow agreement, but that the proceeds of that mortgage were not tendered to Chicago Title Insurance Company until September 15, 1972, four days after the termination date provided for in the stipulation; that plaintiff’s counsel had attempted to call defendants’ attorney on September 11, but was unable to reach him because he was engaged in a trial (both briefs state that no representation was made as to the purpose of that call, although this is not included in their stipulation, and the court’s order recites the representation that the call was to discuss the status of the escrow); that defendants’ counsel, learning on the morning of September 15 that all required funds had not been deposited with the title company, advised plaintifFs counsel that he would demand that the title company not accept any further tender of funds; and that defendants’ counsel did make such demand, by reason of which when plaintiff tendered the balance of funds required to the title company at 2:00 P.M. on September 15, the title company refused the tender.

Over the objection of counsel for the defendants that the court was writing a new agreement for the parties and had seen neither the escrow agreement nor the commitment letter of McHenry Savings and Loan (the court did not see these prior to the entry of its order; however, the escrow agreement was appended as an exhibit to a statement of representations ' entered of record by the court along with its ruling on plaintiffs motion), the court entered an order giving the plaintiff “leave to deposit in Escrow 6085 with the Chicago Title & Trust Company, instanter, net mortgage proceeds in the sum of $62,775.00, which deposit shall be construed to have been timely made in accordance with the terms of said escrow relating to the obligation of Janssen Brothers, Inc. to make deposits.”

Defendants first claim that the court should not have entered judgment on the basis of an informal procedure which did not include either written pleadings or the taking of sworn evidence to support the judgment. They additionally argue that the court abused its discretion in ordering that a deposit made after the date specified in the settlement agreement would be construed as timely.

Plaintiff counters that a summary proceeding is proper to enforce a settlement agreement and that formal pleadings are unnecessary. Plaintiff also argues that the matters represented by counsel were all within his personal knowledge and that he served as an officer of the court.

The objection to the procedure followed has merit. A motion for entry of judgment in accordance with a settlement agreement of the parties may properly be granted in summary proceedings, under certain circumstances. (See Massachusetts Casualty Insurance Co. v. Forman (5th Cir. 1972), 469 F.2d 259, 260; Autera v. Robinson (Dist. Col. Cir. 1969), 419 F.2d 1197, 1200.) Summary procedure is not, however, suited to a situation in which substantial questions are present relating to the formation and terms of a settlement agreement or its consummation, and evidence or testimony is required to satisfactorily resolve the issue. (Autera v. Robinson (Dist. of Col. Cir. 1969), 419 F.2d 1197, 1200.) In such cases general rules of evidence apply to determine the existence of the agreement, the matters included in it and its performance or breach. Knoll v. Swanson (1968), 92 IIl.App.2d 398, 403.

It may have seemed quite likely to the trial judge that there could be no substantial question raised as to the consummation of the settlement since the escrow funds apparently had been deposited when the parties appeared before the court on plaintiffs motion for instructions on September 19, 1972. However, defendants objected to the summary disposition; and they have represented here that the deposit of funds as well as the commitment letter is conditioned on the lender securing a valid first lien on the property, which they say may be impossible of performance without the deposit of additional funds, because of state and federal revenue liens recorded against the plaintiff. These questions cannot be answered on the record before us without a hearing, nor are we in a position to review the trial court’s resolution of the issues.

The defendants have also argued that even if it were shown that the deposited funds were sufficient to consummate the settlement agreement, no legal basis was shown for the court’s order. Defendants argue that the terms of both the stipulation agreement and the escrow are specific in requiring a deposit of a total sum of money by the close of business on September 11, 1972, and make no provision for a deposit of a letter of commitment from a lending institution. Defendants also note that the agreement made the recording of deeds automatic on that date, and that no justification is shown for the delay. Plaintiff does not attempt to impeach the agreement on the basis of fraud or mistake, but contends that the trial court’s order is sustainable as a proper exercise of discretion as to the manner of enforcement of the agreement.

The court’s exercise of discretion is measured against legal principles applicable to contracts generally. (See Wilson v. Bogert (Idaho 1959), 347 P.2d 341, 345; McNair v. Goodwin (N.C. 1964), 136 S.E.2d 218, 223.) Time is not deemed of the essence unless it is made so by the terms of the agreement, or is shown by the agreement to be the intention of the parties. Even then, equity will refuse to enforce such a provision when to do so would be unconscionable or would give one party an unfair advantage over the other. (Witherstine v. Snyder (1922), 225 Ill. App. 189, 194; Manaster v. Young (1940), 302 Ill.App. 545, 553.) While forfeitures are not favored in law or in equity (Witherstine v. Snyder (1922), 225 Ill.App. 189, 194), equity recognizes the rights of the parties to a contract to stipulate to a forfeiture (Lang v. Hedenberg (1917), 277 Ill. 368, 377). And it has been held in King v. Stevenson (1971, 7th Cir.), 445 F.2d 565, 569, that absent express stipulation, the focus in determining whether time is of the essence should be on the prejudice caused by a delay and on the nature of the task to be performed.

The settlement agreement before us contained no express provision that time was of the essence, but the precise phraseology is not controlling. Parties to a contract may make timely performance material even though there is no express provision to that effect. O’Malley v. Cummings (1967), 86 Ill.App.2d 446, 449.

We are unable to review the court’s exercise of discretion by the application of these principles on the basis of the summary procedure followed. We express the view, however, that if the representations made to the court by plaintiff’s attorney and which apparently form the substantial basis for the trial court’s judgment order are proved correct in a proper hearing, the court could properly exercise its discretion in permitting the deposit of funds four days later than specified on the basis of a commitment letter filed on' the intended closing date. (See Mederacke v. Becker (1970), 129 Ill.App.2d 434, 438.) We find Totten v. Totten (1921), 299 Ill. 43, cited by plaintiff, inapposite, since it dealt with an extension of the time granted in the court’s decree rather than with a settlement agreement and presented a situation in which one of the parties had prevented the other from performing on time.

The judgment below is reversed and the cause remanded with directions to further proceed consistent with this opinion.

Reversed and remanded with directions. ■

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    Grace Hardy, Plaintiff-Appellant, v. United States Fidelity and Guaranty Company, Defendant-Appellee.
    (No. 57254;
    First District (2nd Division)
    June 5, 1973.
    Jerrold Blumoff, of Chicago, for appellant.
    John Richard Jackson, of Chicago,, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff appeals from a summary judgment entered in favor of defendant.

Defendant issued a fire policy covering plaintiff’s resident for a three-year period from February 13, 1968 to February 13, 1971. At the expiration of the foregoing policy, defendant issued a renewal of the policy to cover a one-year period from February 13, 1971 until February 13, 1972. On or about June 7, 1971, without advising plaintiff of a reason, defendant cancelled the policy effective June 17, 1971.

Plaintiff contends that the cancellation was in violation of § 755.1a of the Illinois Insurance Code which became effective on September 22, 1969 and which reads as follows:

“After a policy has been effective for one year, any company transacting fire and extended coverage insurance business shall not exercise its right to cancel any such policy of insurance except:
(a) For nonpayment of premium;
(b) When a policy was obtained by a misrepresentation or fraud; or
(c) For any act which measurably increases the risk originally accepted.”

Plaintiffs argument is that the defendant’s cancellation of her renewal insurance policy, after she had been insured uninterruptedly for almost three and one-half years, is contrary to the provision of the foregoing statute. Plaintiff concedes that a literal reading of the statute deprives her of relief, but she argues that the spirit and intention of the statute should control in the instant case.

Her argument is, inter-dlia, that, in view of the recent history of civil unrest in urban areas and the ever pressing need for adequate insurance, it follows that the intent of the legislature was to protect property owners from unreasonable and arbitrary actions of an insurance company after the property has been insured continuously for over a year. Plaintiff contends further that, while there is no illegality in issuing a one-year policy, the legislature did not anticipate that insurers would engage in the practice of issuing one-year policies upon expiration of the usual three-year coverage.

The language in the statute at bar is plain and certain and we must give it effect, regardless of how desirable it would be for the judiciary to inject a provision not found in the statute. (Western National Bank of Cicero v. Village of Kildeer, 19 Ill.2d 342, 167 N.E.2d 169; Droste v. Kerner, 34 Ill.2d 495, 501, 503, 217 N.E.2d 73.) We note that in § 755.3 referring to cancellation by the insurer of auto liability insurance the legislature enacted the foHowing:

“* * * After a policy of automobile liability insurance has been effective for 60 days or if such policy is a renewal policy, the company shall not exercise its right to cancel such policy except * * (Emphasis added.)

This foregoing legislation preceded the statute at bar by approximately twenty months. Defendant appropriately comments that it is reasonable to assume that, if the legislature intended § 755.1a to apply to renewal policies, it would have so specified, as it did in § 755.3. Other statutes may be referred to in determining legislative intent. (Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371; Bergin v. Board of Trustees, 31 Ill.2d 566, 202 N.E.2d 489.) Although we recognize plaintiff’s predicament, the matter of its resolution is peculiarly within the purview of the legislative branch of government to enact legislation it deems appropriate.

Therefore, in view of the provisions of § 755.1a, we affirm the judgment.

Affirmed.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 73, § 755.1a.


author: Mr. JUSTICE SCHWARTZ

text:
    Francis Collins, Individually and as Next Friend of Daniel Collins, a Minor, Plaintiff-Appellant, v. Westlake Community Hospital, Defendant-Appellee.
    (No. 56392;
    First District (3rd Division)
    June 7, 1973.

      Howard & French, of Chicago, (Richard G. French, Stuart N. Litwin, and Gary Dienstag,- of counsel,) for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, (John M. Moelmann and D. Kendall Griffith, of counsel,) for appellee.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Daniel Collins, a minor, by his father as next friend, seeks to recover damages for aUeged negligent medical and hospital treatment which it is contended necessitated amputation of his left leg at the knee. The action was originaUy commenced against Westlake Community Hospital [the Hospital] and Dr. Kenneth Hubbard, M.D. At the close of plaintiff’s evidence, the court directed a verdict for the Hospital on the issue of liabUity. The case proceeded as to Dr. Hubbard, and the jury returned a verdict in his favor. The plaintiff moved for a new trial as to the Hospital, alleging generaUy that plaintiff had made a case against the Hospital. The motion was denied and plaintiff now appeals from the judgment for the Hospital. His sole contention is that the evidence was sufficient to warrant submission to the jury on the ground that it was the duty of the Hospital to review the medical care being given the plaintiff by Dr. Hubbard. The facts follow.

On May 7, 1965, the plaintiff — then six years old — was struck by an automobile. Emergency aid was administered and he was taken by ambulance to Westlake Community Hospital where he was examined and treated by Dr. Margaret Bradley, a hospital employee, who set the boy’s left leg in traction. Plaintiff’s family physician referred the case to Dr. Kenneth Hubbard, then chairman of the Department of Orthopedics in the Hospital. The evidence is not controverted that plaintiff’s parents engaged Dr. Hubbard’s services.

When Dr. Hubbard visited the plaintiff on the evening of May 7, he reviewed the nurses’ notes and replaced the moleskin traction applied by Dr. Bradley with a floating Thomas splint. The nursing staff kept a close watch on plaintiff’s condition during the first night, and notified Dr. Bradley at 10 o’clock the next morning when they noticed that the patient’s foot was cool to the touch. Dr. Bradley loosened the elastic bandage on plaintiff’s leg, and warmth temporarily returned to the injured limb.

At 4:00 P.M., on May 8, Dr. Hubbard checked the reports and, noting that plaintiff’s circulation was satisfactory, increased the traction. At 7:30 that evening, he was advised by the nurse on duty that plaintiff’s foot was not properly aligned. He advised the nurse to continue checking the circulation of the leg, and informed her that he would see the patient shortly. When he saw the plaintiff at 11:00 that evening, he was concerned with his total loss of sensation in the left foot, and requested the consultation and opinion of a nerve specialist. At 6:00 A.M., on May 9, prior to receiving the neurosurgeon’s report, Dr. Hubbard was called at his home and notified by the nurse on duty that the plaintiff’s foot was “cold and dusky in color.” Within two hours the doctor arrived at the Hospital, removed the traction, and ordered immediate exploratory surgery. A blood clot was found in the femoral artery. The following day, May 10, after a. vascular specialist advised that the plaintiff had irreversible ischemia of the left leg, the plaintifFs left leg was amputated at a point four inches below the knee, and two weeks later it was amputated at the knee. Plaintiff contends that it was the duty of the Hospital to review the medical care being given plaintiff by Dr. Hubbard, notwithstanding the fact that the case was primarily in the charge of Dr. Hubbard who had been engaged by plaintiff’s parents.

In its motion to dismiss this appeal, the Hospital has raised the issue [and the record supports its contention] that the plaintiff at trial had not pleaded the specific duty nor the breach thereof by the Hospital to review the medical care being given to plaintiff by the attending physician. An examination of the third amended complaint, which is the one now before us, reveals that no issue had been formally made on. this point. The rule generally applicable in such cases is that “* * * an issue , not presented to or considered by the trial court cannot be raised for the first time on review.” (Womans Athletic Club v. Hulman, 31 Ill.2d 449, 454.) However, in the case of McKinney v. Nathan, 1 Ill.App.2d 536, 543, the court said:

“The parties may, by the introduction of evidence or their conduct in the trial, waive formal pleadings or form their own issues on the evidence introduced, and they may voluntarily present under the evidence issues not presented by the pleadings. An objection that a certain matter is not an issue under the pleadings or that it is not denied or properly denied may be waived by a party where he introduces or brings Out evidence bearing on the subject, or tries the case as if the matter were not in issue.”

Plaintiff argued this issue before the court on the Hospital’s motion for a directed verdict. Several witnesses testified as to the procedures of review employed by the Hospital, and the Hospital effectively waived formal pleadings as to this issue. We find that plaintiff’s theory on his appeal is properly reviewable, and the motion to dismiss his appeal is denied.

The complaint alleged four specific acts of negligence, and the issue of defendant’s duty to review was properly presented to the trial court for its consideration. The plaintiff, in his post-trial motion, sought a new trial on the ground that he had established a prima facie case against the Hospital. He did not specify which theory he relied upon. However, it appears that the appeal is based entirely on the theory that plaintiff made a prima facie case with regard to defendant’s breach of its duty to review the medical care being given the plaintiff. Inasmuch as plaintiff has chosen not to argue that the evidence presented at trial established a prima facie case as to one or all four allegations of negligence in his third amended complaint, plaintiff’s claim — insofar as it pertains to the specific acts of negligence alleged in that pleading — is waived. (Kessler v. Lepiane, 69 Ill.App.2d 1, 3.) Theories not argued on appeal are waived. (Abron v. Public Pontiac, Inc., 64 Ill.App.2d 73, 75-76.) Therefore, we need consider only whether or not . a directed verdict was proper on the issue of the alleged breach of defendant’s duty to review the medical care being given the plaintiff by Dr. Hubbard.

Plaintiff cites Darling v. Charleston Hospital, 33 Ill.2d 326, aff’g 50 Ill.App.2d 253, and relies heavily upon the facts in that case and the finding of the court that the hospital was liable. However, there are substantial differences between the two cases. In Darling, the plaintiff sustained a broken leg and was treated by one Dr. Alexander, a hospital employee, who directed that the leg be put in traction and a plaster cast applied. Following this, the condition of plaintiff’s leg deteriorated for fourteen days, from his first treatment to the day when an orthopedic surgeon was brought in, examined the plaintiff, and found impaired circulation caused by the hemorrhaging of the leg against the constriction of the cast. The court found that the evidence was sufficient to support the verdict on the ground that the hospital failed “to review the treatment rendered to the plaintiff and to require consultants to be caHed in as needed.” The attending physician, an employee of the hospital and subject to its direct supervision, was not a specialist in orthopedics. The court found that the procedures he employed to treat the patient were contrary to good medical practice and that the nurses on duty were not familiar with the symptoms which signaled an impairment of circulation. In fact, they failed to note the same in their records and report them to the doctor. The doctor took no action even when all of the classic symptoms of a circulatory disorder were present.

On the other hand, in the case before us, Dr. Hubbard was a specialist in orthopedic surgery, and although the record indicates that he was chairman of that department at the hospital, there is no evidence that he was an employee there. PlaintifFs witnesses testified ■ that Dr. Hubbard was engaged by his parents'. He was in charge of the case. He and several nurses testified that they were familiar with the classic symptoms of ischemic necrosis (death of tissue due to a lack of blood supply). The nurses, reported the existence of certain symptoms to the doctor when they appeared, and when all of the symptoms appeared the nurses immediately notified Dr. Hubbard. They also reported the same to Dr. Bradley, a hospital employee, who took corrective measures! Plaintiff’s condition was checked regularly, often once each: hour.

The evidence does not show that Dr. Hubbard failed to exercise good medical judgment in waiting to determine whether certain symptoms were indicative of a circulatory or nervous disorder. The decision to treat a patient in a particular manner is a medical question entirely within the discretion of the treating physician, not the hospital. (See Lundahl v. Rockford Memorial Hospital Ass’n, 93 Ill.App.2d 461, 466-467.) The evidence in Darling showed not only grossly improper medical treatment by the attending physician, but also a continuing and total failure by the hospital staff to recognize, report and react to a multitude of glaringly obvious signals indicating either the existence of a condition in the patient upon which the employed treatment had no effect, or grossly improper medical treatment by the attending physician.

The trial court properly directed a verdict in favor of the Hospital, and the judgment rendered thereon is affirmed.

Judgment affirmed.

McNAMARA, J., and McGLOON, J., concur.