author: MR. JUSTICE MORAN

text:
    People of the State of Illinois, Appellee, v. Atilano Garcia, Appellant.
    Gen. No. 66-56.
    Second District.
    December 26, 1967.

      Joanne S. Shea, of Riverside, for appellant.
    William R. Ketcham, State’s Attorney of Kane County, of Geneva, and Gene Armentrout and W. Ben Morgan, of Elgin, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant, Atilano Garcia, was charged in a two-count indictment with the offense of Aggravated Battery under section 12-4 (a) of the Criminal Code. (Ill Rev Stats 1963, c 38, § 12-4(a).) A bench trial resulted in a finding of guilty and the defendant was subsequently sentenced to the penitentiary for a minimum of six years and a maximum of ten years in accordance with the penalty provisions of the cited section.

On appeal, the defendant raises five alleged errors as grounds for reversal. First, the evidence established self-defense. Second, the State’s cross-examination of a defense witness was improper. Third, his defense counsel at the trial was incompetent. Fourth, the closing argument by the State was improper and prejudicial. Fifth, the evidence established, at the most, a violation of section 12-4 (b) of the Criminal Code (Ill Rev Stats 1963, c 38, § 12-4 (b)).

On November 28, 1964, one Jose Castillo, the complaining witness, his brother Tony and Hector Gomez went to the Latin Club located on the second floor of a building in Elgin, Elinois. Tony and Hector were members of a band that was playing at the club that evening and Jose was a patron. About two and one-half hours after they arrived, the defendant entered the club and ordered some Spanish food to take out. While drinking a beer and waiting for his order, an argument commenced between the defendant and Tony, neither having known the other beforehand. The argument continued while the two went into the washroom at which point Eustacco Montana, one of the owners of the club, interceded and told them that he did not want any trouble in the club. This temporarily subdued both parties and they left the washroom. Tony testified that, while in the washroom, he became aware of the fact that the defendant had a gun on his person. The defendant went to the bar to inquire about his food order and Tony went to a table where his brother and other friends were gathered. At this time he told the group that the defendant had a gun, but he testified that he did not know if his brother, Jose, had heard him. The argument began anew between Tony and the defendant and Montana again stopped them and told the defendant to wait in the stairwell for his food. At this time some of the patrons had risen from their tables with beer bottles in their hands and Montana was holding Tony at the doorway to the staircase.

The defendant started down the stairs and when he had reached about the fifth step, Jose, the complaining witness, slipped by Montana and ran down the stairs toward the defendant. Jose testified that he had nothing in his hands or on his person when he went down the stairs and there is no evidence to the contrary.

From this point there was a conflict of testimony. The defendant testified that he was kicked from behind by someone but he did not know who it was; that he quickly-turned around and fired two shots by “fanning” the gun. Jose testified that, as he ran down the stairs, the defendant pulled out a gun; that Jose kicked at him simultaneous to defendant’s firing after which Jose turned and started up the stairs when defendant shot the second time; that the bullet from the second shot entered the inside of his right leg at mid-calf and departed on the outside of the same leg just below the knee; that he was taken to the hospital and released two and one-half days later. The leg was exhibited to the court and counsel.

There was further testimony by Jose to the effect that the defendant approached him just prior to trial, on two occasions, and desired to reimburse him for any damages incurred by the incident. Jose testified that on one of these occasions, he “guessed” it was defendant’s attorney who waited outside of his home during one of defendant’s visits.

It is first contended that the record in this case established an act of self-defense on the part of the defendant. Section 7-1 of the Criminal Code states as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” (Ill Rev Stats 1963, c 38, § 7-1.)

This is an affirmative defense. (Ill Rev Stats 1963, c 38, § 7-14.) Unless the State’s evidence raises the issue involving the alleged defense, the defendant must present some evidence thereon. (Ill Rev Stats 1963, c 38, § 3-2.) In People v. Williams, 56 Ill App2d 159, 205 NE2d 749 (1965), the court after setting forth the necessary elements of self-defense, went on to state at pages 165-166:

“There is a further principle involved, when, as in the instant case, the defendant uses deadly force. This principle limits the use of deadly force to those situations in which (a) the threatened force will cause death or great bodily harm or (b) the force threatened is a forcible felony.”

The uncontradicted facts before the trial bench in this case disclose that Jose had nothing in his hands nor on his person when the offense occurred, while the defendant, by his own testimony, admitted that he did not take the time to find out the type of force with which he was threatened. He testified that, at the moment he fired, he did not know who was behind him, what, if anything, the person approaching him had in his hands and that he did not know at whom he was shooting. This is not the quality or type of evidence that would justify the use of deadly force. The trial court was correct in finding that self-defense was not established.

The next contention is that the State committed prejudicial error while cross-examining the defense witness, Montana. On direct examination, the defense elicited the fact that the witness was a partner in the operation of the Latin Club where the offense took place. On cross-examination, the State inquired as to whether the witness had a license to serve liquor at the establishment. He responded, “That’s what we are trying to get.” When asked if it was against the law to serve liquor without a license, he replied, “I guess so.” He was then asked what the results might be if the city council found out what had happened at the club and he admitted that he would not get a liquor license.

Based upon these questions and answers and in reliance upon the case of People v. Hoffman, 399 Ill 57, 77 NE2d 195 (1948), the defendant seeks a reversal. In the Hoffman case, the sister of and witness for the defendant was asked on cross-examination about being indicted for burglary. The trial court overruled an objection and allowed the witness to answer. On appeal, the Supreme Court, in reversing the conviction, stated at page 63:

“We are in full accord with what we said in the Halkens case, (People v. Halkens, 386 Ill 167) but in that case we fully and succinctly pointed out that even though not a defendant, the witness can be required to testify only to former convictions involving infamous crimes and cannot be interrogated on arrests or indictments, or upon convictions of crimes not infamous, as the credibility of a witness is not presumed to be affected by anything less than the conviction of an infamous crime.” (Citation added.)

The State, in contravention, calls this court’s attention to People v. White, 251 Ill 67, 73, 95 NE 1036 (1911); People v. Bond, 281 Ill 490, 499, 118 NE 14 (1917); People v. Winchester, 352 Ill 237, 244, 185 NE 580 (1933); and People v. Crump, 5 Ill2d 251, 125 NE2d 615 (1955). In the White case, a defense witness who had, on direct examination, testified that he was a bartender, was cross-examined concerning his having worked for a gambling house. In the Bond case, a defense witness was asked by the State if she had kept a house of ill fame, and in the Winchester case, a witness for the People testified that the defendant had stopped at his house to call upon a Margaret Timmons who was not at the house at the time of the call. On cross-examination of the witness, the trial court did not allow the defendant to ascertain whether the witness’ house was a house of prostitution. On appeal the Supreme Court held it to be error.

A summation of the White, Bond and Winchester cases, along with others, and the reasoning behind each, may be found in People v. Crump, 5 Ill2d 251, 125 NE2d 615 (1955) at pages 257 et seq. At page 260, the court stated:

“The general rule in Illinois, as established by the Bond, White and Winchester cases referred to above, is that it is proper to cross-examine a witness to bring out the witness’s unlawful and disreputable occupation and activity as a matter affecting credibility.”

At first glance one might conclude that the rule set forth by the defendant in the Hoffman case is in direct conflict with the rule that evolved in the four cases cited by the State. However, this was later clarified by the Supreme Court in the case of People v. Mason, 28 Ill2d 396, 192 NE2d 835 (1963) where at pages 400-401 the court stated:

“A distinction must be made between proof of conviction of an infamous crime for the purpose of impeaching credibility of a witness and the use of arrest or indictment as evidence of bias or interest on the part of the witness.
“A witness may be impeached by attacking his character by proof of conviction of an infamous crime. (Ill Rev Stats 1961, chap 38, par 734.) For this purpose only conviction may be proved, and proof of arrests, indictments, charges or actual commission of crime are not admissible. (People v. Hoffman, 399 Ill 57; People v. Newman, 261 Ill 11.) The rule prevailing in most jurisdictions and supported by the great weight of authority is that it is not permissible to show that a witness has been arrested, charged with a criminal offense, or confined in prison, or to inquire as to such fact upon cross-examination, where no conviction is shown, for the purpose of impairing his credibility. Anno 20 ALR2d 1421, 1425.
“However, showing interest or bias on the part of a witness is also an accepted method of impeachment, and even in jurisdictions where evidence of arrest or indictment is not ordinarily admissible to impeach credibility generally, the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely. (Anno 20 ALR2d 1421, 1440.)”

In the case at bar we are of the opinion that the cross-examination of Montana, concerning his operation of a dramshop without a liquor license, could be inquired into “where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely.” He stated that he was trying to get a license, that he did not want any trouble at the club because the city council would find out and, if they did find out, he would not get his license. If a witness is engaged in an unlawful and disreputable occupation, in justice and fairness he should not be permitted to appear before the jury as a person of high character who is engaged in a lawful and respectable occupation. People v. Bond, supra, at page 499. We feel that it was a proper subject of inquiry by the State under the facts in this case.

The defendant next contends that his attorney, whom he selected, was incompetent and thereby prejudiced his case. His reasons are twofold: first, that when the defendant went to visit the complaining witness prior to trial, his attorney accompanied him on one occasion and second, that prior to the taking of testimony at the trial, defense counsel stipulated that the defendant, while in the State of Michigan, was convicted of three felonies, being: assault with a deadly weapon in 1954, felonious assault in 1955 and assault with intent to do great bodily harm less than the crime of murder in 1959. The State made no answer to this contention.

As to the first reason, this is based upon the complaining witness’s testimony that he “guessed” the defendant’s attorney accompanied him. This is the only evidence on the point. At no time did the defendant testify that the attorney was present. With this conjecture we find no merit.

As to the second reason, we also find no merit. It is not error for defense counsel, in a criminal proceeding, to stipulate as to certain evidence. In People v. Woods, 23 Ill2d 471, 179 NE2d 11 (cert den 370 US 910, 8 L Ed2d 404, 82 S Ct 1257), a 1961 case, the court said at page 474:

“Trial counsel will not be judged other than competent because of his use of a stipulation of evidence where that method of setting forth evidence may have seemed more desirable. Counsel for a defendant in a criminal action may, if he thinks it to be ‘for the best interest of his client, stipulate the facts to which the People’s witnesses will testify.’ (Citations omitted.) (T)his court stated in People v. Polk, 19 Ill2d 310, 315, that ‘The law is well established that an accused may, by stipulation, waive the necessity of proof of all or part of the case which the People have alleged against him. Having done so, he cannot complain of the evidence which he has stipulated into the record.’ ”

It is possible that defense counsel could stipulate to all of the evidence. See, People v. Hare, 25 Ill2d 321, 324, 185 NE2d 178 (1962); reasserted in People v. Dean, 31 Ill2d 214, 220, 201 NE2d 405 (1964). Where a defendant is represented by counsel of his own choice, the conviction will not be reversed because his counsel did not use the greatest of skill or may have made some tactical blunder. It is the overall representation that must be considered. People v. Nordstrom, 73 Ill App2d 168, 182, 219 NE2d 151 (1966).

The fourth alleged error arises from the closing argument of the State based upon the following statements :

“In reviewing the evidence very briefly, Mr. Garcia came to the dance carrying a gun. We have a man here who, I submit to the Court, is not worthy of belief. This man who has a propensity for felonious assault as evidenced by the stipulation to the effect of three prior convictions in the State of Michigan, four felonies with intent to kill—
“THE JUDGE: Counsel, I think we better strike that. That has nothing to do with guilt or innocence in this case.
“MR. KETCHAM: I bring this to the Court’s attention whether this man is worthy of belief.
“THE JUDGE: For that purpose alone, whether the Court gives any weight to his testimony, all right.”

Part of the evidence before the court was the defendant’s former convictions. It is to be remembered that this was a trial before the bench and that it was the court, not the defendant, that raised the objection. It should be noted that the court limited the admissibility of the prior convictions to the weight to be given to the defendant’s testimony. It is proper for the State to refer to previous convictions in its closing argument as a basis affecting the credibility of the defendant’s testimony, especially, as in this case, where the court, expressly, so limits the purpose. People v. Nastasio, 30 Ill2d 51, 59, 195 NE2d 144 (1963); People v. Halteman, 10 Ill2d 74, 83, 139 NE2d 286 (1956). We, therefore, find no error on this ground.

Lastly, it is urged that the evidence in this case did not show a battery which caused “great bodily harm, permanent disability or disfigurement.” As a consequence, defendant urges that the sentence imposed should not have been that provided for under section 12-4(a), supra, but rather that provided for under section 12-4 (b), supra. There is a difference in the penalties. Under section 12-4 (a) the maximum sentence is ten years, whereas, under section 12-4 (b) the maximum sentence is five years.

As an aside, the State claims that this point is being raised for the first time on appeal. However, it does not pursue this claim, nor shall we. The State, in its brief, admits that there is no evidence of any permanent disability. It further concedes that the evidence as to permanent disfigurement is questionable. Nevertheless, it strongly urges that a gunshot wound, as herein described and observed by both the trial court and the defense, must be termed “great bodily harm.”

Before the effective date of sections 12-4 (a) and (b) on January 1,1962, an assault and battery and aggravated assault and battery were found in sections 56 and 56a, respectively, of the Criminal Code. (Ill Rev Stats 1961, c 38, §§ 56 and 56a.) The penalty provided under section 56 was a fine only, whereas, the penalty provided under section 56a was either a fine or imprisonment or both. Similar in background theory to the case at bar, the substance of each was the same, to a point; that is, they both dealt with the unlawful beating of another. However, in aggravated assault and battery, the beating would have to result in “severe personal injury.”

In interpreting what, under the Statute, would constitute a “severe personal injury,” the Appellate Court in People v. Cavanaugh, 18 Ill App2d 279, 152 NE2d 266 (ordered published in full in 1958 and adopted by the Supreme Court in 1958 in 13 Ill2d 491, 493, 150 NE2d 592) said at page 288:

“The term ‘severe personal injury/ as used in this statute, may not be susceptible of a precise definition, yet it implies an injury of a much more grievous and serious character than that implied by an ordinary battery. Whether the injury sustained and the facts surrounding the commission of an offense would bring the offense within the meaning of Paragraph 56a or Paragraph 56 presents a question of fact for a jury to determine.”

The same reasoning applies to the case at bar. The jury was waived and it therefore became the duty of the trial court to determine the weight and credibility of the exhibit (leg) and the testimony and, thereafter, make its findings with respect to the defendant’s guilt or innocence. People v. Davis, 14 Ill2d 196, 202, 151 NE2d 308 (1958). We are of the opinion that the trial court did so. Where the evidence is merely conflicting, this court will not substitute its judgment for that of the trier of fact. People v. Scott, 34 Ill2d 41, 44, 213 NE2d 521 (1966).

The judgment of the Circuit Court of Kane County is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    William J. Mauer, Jr., D.O., Plaintiff-Appellant, v. The Highland Park Hospital Foundation, an Illinois Not-For-Profit Corporation, et al., Defendants-Appellees.
    Gen. No. 67-47.
    Second District.
    December 27, 1967.

      Daniel A. Costigan, and James B. Martin, of Chicago, for appellant.
    Snyder, Clarke, Dalziel, Holmquist and Johnson, of Waukegan, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Plaintiff is an osteopathic physician and surgeon duly licensed by the State of Illinois. He is a graduate of the Chicago College of Osteopathy, and maintains offices in the City of Chicago and in the Village of Deerfield. On December 22, 1964, plaintiff filed his application for membership on the medical staff of the Highland Park Hospital, a private institution serving the area of plaintiff’s Deerfield office. The bylaws of the medical staff specified at that time that members must be Fellows of the American Medical Association. The plaintiff did not meet this qualification, and was denied membership.

The original complaint herein sought a declaratory judgment that this qualification of the bylaws was void and invalid. Shortly after the complaint was filed, the bylaws were amended to eliminate this requirement, and the substituted provision generally stated, among other things, that the applicant “shall have qualifications which have been approved by the Credentials Committee and the Board of Managers.” Other qualifications were specified, but are not here in dispute.

As a result of the elimination of the challenged bylaw provision, the original complaint was dismissed on defendant’s motion. The plaintiff thereupon applied once more for membership to the hospital’s medical staff, asking that his original application be reconsidered in view of the amended bylaws, and stating that the information submitted with the original application was to apply. This information included the names of two practicing physicians in the area as references. When he was again denied membership on the medical staff, plaintiff filed his amended and supplemental complaint praying for a declaratory judgment that the denial of his application was void, invalid and discriminatory.

With their motions to dismiss both the original and the amended and supplemental complaints, defendant submitted the affidavits of the hospital’s administrator. The facts set forth in these affidavits and in the exhibits thereto were not challenged by any counteraffidavits, and were essentially as follows: two days after requesting the reconsideration of his application, plaintiff was notified that his application would be reconsidered in the regular course of staff business; on the same day the administrator sent letters to the two physicians named as references in the application, which letters requested comments on plaintiff’s “capabilities, ethical relationships, attitude, and general community standing”; both of these physicians responded with letters stating that they were unable to comment or pass judgment on plaintiff’s medical capabilities because of their minimal contacts with the plaintiff; plaintiff’s application disclosed that his premedical education was at the United States Naval Academy, where he did not receive a degree, and that he partook of no educational activities from 1939 until his entrance into the Chicago College of Osteopathy, from which he graduated in 1956; letters of inquiry were sent to each of the organizations and institutions listed in plaintiff’s application; within three weeks of his request for reconsideration, plaintiff was interviewed by the Medical Executive Committee and questioned as to his qualifications, but he furnished no additional information or references other than those contained in the application itself; all of the staff members were notified that plaintiff’s application would be on file for thirty days in the office of the administrator; the Medical Executive Committee thereafter met and unanimously resolved that plaintiff not be approved for sponsorship; the Board of Managers of the Highland Park Hospital Foundation, one of the defendants herein, subsequently met and approved the decision of the Medical Executive Committee, the minutes of which meeting stated, inter alia, that the rejection was based on the failure of plaintiff’s application and supporting documents to show his qualifications for staff membership, and on the fact that the physicians given by plaintiff as references did not have knowledge that his medical capabilities were of sufficient quality to justify membership on the staff. Finally, the unchallenged affidavits show that every action taken relative to plaintiff’s application was in accordance with the normal and customary procedures followed with respect to all such applications.

From the trial court’s dismissal of the amended and supplemental complaint, the plaintiff appeals to this court.

It is a well-settled rule that a private hospital has the right to refuse to appoint a physician or surgeon to its medical staff, and this refusal is not subject to judicial review; the decision of the hospital authorities in such matters is final. State ex rel. Sams v. Ohio Valley General Hospital Ass’n, 149 W Va 229, 140 SE2d 457, 462 (1965); Shulman v. Washington Hospital Center, 222 F Supp 59, 63 (DC 1963); Khoury v. Community Memorial Hospital, Inc., 203 Va 236, 123 SE2d 533, 539 (1962); Manczur v. Southside Hospital, 16 Misc2d 989, 183 NYS2d 960, 961 (1959); Levin v. Sinai Hospital of Baltimore City, 186 Md 174, 46 A2d 298, 301 (1946).

The plaintiff readily concedes the general rule, but argues that he should not be bound thereby for three reasons: (1) the increasing use of public funds by private hospitals impresses a public interest upon these institutions, thereby “requiring a reevaluation of the rule and either its modification or outright repudiation”; (2) adherence to the general rule would tend to create a monopoly in the hands of the doctors comprising the medical staff of the hospital in question; and (3) the defendants allegedly assigned no reason for the rejection of plaintiff’s application for staff membership.

We observe from a review of the authorities that plaintiff’s first contention is by no means a novel one. While a public hospital’s action in rejecting an application for staff membership may be judicially reviewed to determine if the rejection was arbitrary, capricious or unreasonable, (see State v. Ohio Valley General Hospital Ass’n, supra, 140 SE2d at page 463) the acceptance and use of certain public funds does not magically convert a private hospital to a public one. Thus, in Shulman v. Washington Hospital Center, supra, it was stated at page 61:

“The fact that a private hospital may receive donations or subventions from the Government, or compensation from a city or county for caring for sick or disabled indigent persons, does not transform it into a public institution, Van Campen v. Olean General Hospital, 210 App Div 204, 205 NYS 554, 556, affirmed 239 NY 615, 147 NE 219. Similarly, the circumstance that it was constructed with the aid of Government funds, as is the case in this instance, does not detract from its status as a private hospital.”

A similar holding was seen in Khoury v. Community Memorial Hospital, Inc., supra, at page 538, where more than half of the cost of the original hospital building and a subsequent addition were financed by State and Federal public funds. In the case before us, the Highland Park Hospital received only $26,000 in Federal funds toward the construction of an addition to one building which cost over $1,000,000 and $326,000 in Federal funds toward an expenditure in excess of $2,000,000 for another building. The receipt of public funds toward its overall operational (nonbuilding) expenses, as reflected in its annual budget, is virtually nonexistent.

The plaintiff further points out that the Highland Park Hospital is a not-for-profit corporation and enjoys a tax-free status. These facts have similarly been held insufficient to render as public an otherwise private hospital. State v. Ohio Valley General Hospital Ass’n, supra, at page 461.

Plaintiff asks this Court to “modify” or “repudiate” the general doctrine reiterated and adhered to by the foregoing decisions, notwithstanding that this doctrine is supported by “the overwhelming weight of authority, almost approaching unanimity.” Shulman v. Washington Hospital Center, supra, at page 63. However, the only reason the plaintiff gives in his request that we dishonor established law, namely, that the enjoyment of public funds and the tax-free status of the hospital impresses it with a public interest requiring judicial review of internal decisions, has itself been dishonored and repudiated by the decided cases. We elect to follow the teaching of these cases, and we refuse to substitute our judgment for that of the hospital authorities regarding the acceptance of plaintiff for staff membership in a private hospital. Indeed, this doctrine is all the more fitting by virtue of the current Illinois law imposing potential liability on a hospital for the imprudent or careless selection of its staff members, without limitation to the amount of its liability insurance. Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 337-338, 211 NE2d 253 (1965).

Equally untenable is plaintiff’s theory that the application of the now settled law would create an unlawful monopoly in the hospital’s medical staff. There is no showing as to the number of doctors on the staff, nor is there anything in the record to suggest the proportion of staff members to nonstaff doctors in the hospital’s service area. We presume the plaintiff realized that the Highland Park Hospital was one of the only hospitals in the area when he chose to open his Deerfield office. In any event, the plaintiff cites Illinois Hospital Service, Inc. v. Gerber, 18 Ill2d 531, 537, 165 NE2d 279 (1960), a case dealing with the constitutionality of a statute delegating certain powers to hospitals without specifying standards. We cannot see that the rationale of the Gerber case could be borrowed and applied to the instant case, particularly in view of the settled law discussed above. Likewise, plaintiff’s reliance on Greisman v. Newcomb Hospital, 40 NJ 389, 192 A2d 817 (1963), is misplaced. Although the opinion in that case used the term “monopoly” in connection with a hospital and its staff members, the court noted at page 824:

“It must be borne in mind that we are not asked to pass on a discretionary exercise of judgment but only on the validity of the by law requirement.”

The bylaw in question required graduation from a school approved by the American Medical Association, which would automatically disqualify the graduate of any school of osteopathy without regard to the individual applicant.

Finally, we turn to plaintiff’s protest that no reason was assigned for the rejection of his application. This is somewhat surprising in view of plaintiff’s concession that, under existing law, private hospitals may exclude physicians from staff membership without assigning reasons therefor. Be that as it may, the official minutes of defendant’s Board of Managers specifically stated that the plaintiff was rejected because his application and supporting documents did not show his qualifications, and that the physicians named as references had no knowledge of his medical capabilities. Assuming that plaintiff was entitled to be advised of the reasons for his rejection, the failure to be so advised would not necessarily be grounds for overturning his rejection; his remedy would be the right to be told of the reasons, and note the right to automatically become a staff member.

For the reasons stated, we conclude that the trial court properly dismissed the amended and supplemental complaint and entered judgment for the defendants.

Judgment affirmed.

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


author: MR. JUSTICE DAVIS

text:
    William Elden, Plaintiff-Appellant, v. Addison Farmers Mutual Insurance Company, Defendant-Appellee.
    Gen. No. 67-49.
    Second District.
    December 27, 1967.
    Rehearing denied February 1, 1968.
    William Elden, pro se, of Chicago, appellant.
    No appearance filed by appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of the Sixteenth Judicial Circuit, entered on December 6, 1966, dismissing the amended complaint of the plaintiff —a lawyer — , from which he appealed, pro se.

The plaintiff filed notice of appeal on February 1,1967, and under the Rules of Court effective when said order was entered, he had 50 days after the filing of notice of appeal within which to cause a report of trial proceedings to be made up, presented, certified and filed in the trial court. Extensions of time for the filing of such report could be granted by the trial court for a period of not to exceed an aggregate of 45 days, and extensions beyond such 45-day period could be granted only by the reviewing court based on a short record as provided in Rule 36 (2) (b). (Ill Rev Stats 1965, c 110, pars 101.36(1) (c), 101.36 (2) (b) and 201.1(1) (c). The plaintiff sought no extension of time in any court within this 50-day period.

On April 13, 1967, the plaintiff filed a short record in this court, which consisted of the old common-law record as certified to by the Circuit Clerk of DeKalb County. And, on April 24, 1967, he filed a motion in this court for an extension of 60 days’ time within which to file the report of the trial proceedings and for the filing of brief and abstract. Under Court Rules, any application for extension of time for filing the report of trial proceedings must be made before the expiration of the original or extended time for the filing of such report. Consequently, the plaintiff’s application for such extension was not filed in compliance with the Court Rules and could have properly been denied. However, we allowed plaintiff’s motion in part, and granted him an additional 35 days within which to file such report and an additional 35 days within which to file abstract and brief.

On June 8, 1967, the plaintiff requested leave to withdraw the short record and such leave was granted. And, on July 18,1967, after the expiration of the extended time for the filing of brief and abstract, the plaintiff filed a motion for an additional 30 days within which to file “brief, abstract and excerpts from the record in this cause.” On July 26, 1967, the plaintiff returned the short record to this court and had added thereto, the report of trial proceedings which had been certified on May 26, 1967 — a date in excess of 50 days after the filing of notice of appeal.

After considering the plaintiff’s motion of July 18, and his dilatory, unorthodox and unauthorized procedures with reference to this appeal, the court, on its own motion, dismissed the appeal on July 31, 1967, because of his failure to comply with court rules.

Thereafter, on August 14, 1967, he filed a motion to vacate the order dismissing the appeal and for its reinstatement, or in the alternative, for permission for the present appeal to stand as an appeal which was perfected within “one year of judgment within the Rules prevailing prior to December 31,1966”; and the plaintiff also filed a motion asking that this court waive the filing of an abstract or excerpts from the record. In charity, we vacated the order dismissing the appeal and reinstated it, but denied his motion for the waiver of abstract or excerpts.

During this deluge of motions, the defendant-appellee filed no objections to the plaintiff’s many requests. On August 16, 1967, the plaintiff filed a brief herein but failed to file an abstract or excerpts from the record, and again, the defendant took no action in this respect and failed to file any brief herein.

When the cause was called for oral argument, pursuant to notice, the defendant’s counsel answered present, but stated that he came to court only for the purpose of hearing what the plaintiff might have to say. The plaintiff was not then present in court.

After the argument of the following case had been concluded, the plaintiff announced his presence, asked leave to argue his case and was permitted to do so. The nonchalance of the plaintiff with reference to this appeal is exceeded only by his lack of respect for the rules governing appellate procedure.

An abstract of record is the appellant’s pleading and must contain the matters sought to be reviewed. Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 294, 295, 210 NE2d 614 (1965); City Nat. Bank & Trust Co. of Rockford v. Almond, 42 Ill App2d 314, 315, 192 NE2d 297 (1963); Gribben v. Interstate Motor Freight System Co., 38 Ill App2d 123, 125, 186 NE2d 100 (1962). It is the duty of the party prosecuting an appeal to present an abstract sufficient to set forth fully every error relied upon for reversal. Dempski v. Dempski, 27 Ill2d 69, 72, 187 NE2d 734 (1963); Supreme Court Rule 38 and Appellate Court Rule 6 (Ill Rev Stats 1965, c 110, pars 101.38 and 201.6).

In the case at bar we were lenient with the plaintiff and reinstated his appeal after its dismissal for violating Rules of the Court. However, we refused to waive the filing of abstract or excerpts from the record. Nevertheless, the plaintiff cavalierly proceeded to file his brief, without either abstract or excerpts.

Where an appellant fails to submit an abstract or excerpts from the record, a reviewing court is warranted in refusing to consider the case on its merits. Such court is not required to search the record to find a reason for the reversal of the trial court. In re Petition to Annex Certain Territory to Village of Willowbrook, 42 Ill App2d 432, 434, 192 NE2d 553 (1963); City Nat. Bank & Trust Co. v. Almond, supra, 316.

Accordingly, this appeal is dismissed because of the plaintiff’s contumacious disregard for the pertinent Court Rules and the orders of this Court.

Appeal dismissed.

ABRAHAMSON, P. J. and MORAN, J., concur.


text:
    Department of Public Works and Buildings of the State of Illinois, Petitioner-Appellee, v. Camboni’s, Incorporated, Defendant-Appellant, Donald Schuster, Defendant-Appellee.
    Gen. No. 67-59.
    Second District.
    December 27, 1967.
    George P. Latchford, Jr., Latchford and Latchford, of Chicago, for appellant.
    William G. Clark, Attorney General, of Chicago, Doming and Truninger, of Chicago, and Hubert J. Loftus, of Addison, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff brings this proceeding to acquire two tracts of land to relocate Route 66 in DuPage County. Both tracts are owned by the defendant, Camboni, and one of the two tracts is leased to the defendant, Schuster. A short while after the petition was filed, the plaintiff utilized the immediate vesting provisions of the Eminent Domain Act (Ill Rev Stats 1957, c 47, §§ 2.1-2.10) and the sum of $260,000 was deposited with the clerk of the court. This sum was thereafter paid out to Camboni pursuant to its petition. The subsequent jury trial resulted in a verdict of $190,000 as to the first parcel and $52,100 as to the second parcel and a verdict in favor of the defendant, Schuster, of $2,100 covering his leasehold interest. The trial court denied a motion for a new trial on behalf of the defendant, Camboni, and entered judgment on the verdict and also a judgment against Camboni, for $17,900, being the excess of the amount permitted on the immediate vesting proceedings and the final jury verdict.

The defendant, Camboni, brings the case to this court, raising various points which we will discuss in turn.

Defendant first argues that the testimony of the plaintiff’s expert witness, George Becker, should have been stricken because Becker considered improper elements in coming to his conclusion of value. The witness Becker testified on cross-examination that he was told of the rental, but he indicated that he did not use this figure in determining his value. Rather, he considered various elements and various approaches to value, among them the income approach and, in determining the value from the income approach, he estimated the rental as one of the factors. The witness was cross-examined closely before he was permitted to express his opinion and we find no error in this regard, Department of Public Works & Buildings v. Kirkendall, 415 Ill 214, 223, 112 NE2d 611 (1953).

The same witness estimated operational expenses to determine net income. Again he was cross-examined closely as to what operational expenses he considered and whether or not those expenses were actually being incurred by the defendant. It was proper for the witness to consider operational expenses, Department of Public Works & Buildings v. Pellini, 7 Ill2d 367, 371-372, 131 NE2d 55 (1955), and all of the factors brought out by the defendant on cross-examination merely go to the weight of the witness’s testimony and not to its admissibility.

The defendant next argues that it was improper to permit one Willis Capps to testify as an expert witness for the plaintiff. Capps was a resident of Alma, Wisconsin and had been a full time real estate appraiser for eleven years at the time of the trial. His experience in DuPage County was limited but did involve the appraisal of several parcels being acquired by the plaintiff in addition to the parcels in question. Curiously enough, the expertise of Mr. Capps has been previously considered by our Supreme Court. In Department of Public Works & Buildings v. Divit, 25 Ill2d 93, 182 NE2d 749 (1962), the Supreme Court said at pages 99 and 100:

“We find that the testimony of Capps was competent. It is recognized in Illinois that any person acquainted with a particular property may testify as to its value even though he is not engaged in the buying and selling of similar properties in that locality. (Department of Public Works v. Bohne, 415 Ill 253.) It is undisputed that Capps was a professional real estate appraiser and had for many years valued properties throughout the country, including Illinois. Prior to trial he spent considerable time in examining the premises and investigating facts upon which to base his opinion as to the value of the property taken. Under the circumstances the trial court did not err in permitting him to testify.”

All of the factors involving Capps’ background were brought before the jury in a very close and careful cross-examination. The trial court did not err in permitting him to testify and the defendant’s contention relates to the weight of that testimony and not to its admissibility.

Defendant next argues that the witness Capps arrived at the total value by evaluating first the land and then the improvements rather than evaluating them as a whole as is required. We have carefully read the testimony of Capps. He says, among other things, that his factors “are given consideration in the over-all approach but not your final conclusions.” He says, ultimately, “the final conclusion of value is based primarily on the market approach.” Capps did not divide the appraisal as has been suggested by the defendant. Therefore, the trial court made no error in permitting him to express his opinion.

The defendant next contends that the testimony of one of the plaintiff’s witnesses was stricken but the jury was not advised of that fact until they were instructed at the end of the case. The defendant does not argue that this was prejudicial error, and we are hard put to determine how any error could result since the jury were properly instructed before they began their deliberation of the case.

The defendant’s last contention is that the verdict of the jury regarding the value of the leasehold interest of the defendant, Schuster, is not supported by the evidence. We may say originally that this question need not be considered because it was not set forth in the defendant’s post-trial motion (Ill Rev Stats 1965, c 110, § 68.1(2)). The trial court did not consider the matter and it would be unfair for us to give any consideration to it. Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 572-573, 149 NE2d 351 (1958).

Even if that were not the case defendant’s only point is that there was no testimony to support the jury verdiet. This statement is not accurate since the defendant, Schuster, was a witness and his testimony was competent because he owned the leasehold interest, was a general contractor and also a real estate developer. In addition to that, the defendant, Camboni’s own witness, one Auble, a local realtor, testified to a value of the leasehold interest which corresponded with the jury’s verdict.

In summary, we find no error in this record and the decision of the trial court is affirmed.

Judgment affirmed.

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


text:
    Harry V. Johnson & Sons, Inc., a Corporation, Plaintiff-Appellee, v. Clifford A. Pedderson, Defendant-Appellant, and Williams-Manny-Stevens & Engstrom, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 67-97. (Abstract of Decision.)
    Second District.
    December 27, 1967.
    Harold Stern, of Rockford, for appellant; Brown, Connolly & Oliver, of Rockford, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


text:
    David R. Upton and Jeranne Upton, Plaintiffs-Appellees, v. Parkway Motors, Inc., Defendant-Appellant. Parkway Motors, Inc., Third Party Plaintiff-Appellant, v. Lou Bachrodt Chevrolet Co., a Corporation, Third Party Defendant-Appellee.
    Gen. No. 67-98.
    Second District.
    December 27, 1967.
    Rehearing denied January 18, 1968.

      Beckstrand and Ritz, Kenneth F. Ritz, and Fred L. Wham, III, of Rockford, for appellant.
    Miller, Hickey, Collins, Gilbert & Powers, of Rockford, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

In September of 1964 the plaintiffs purchased a used 1964 Chevrolet Corvette automobile from the defendant, Parkway Motors, Inc., and were allowed a credit of $1,595 for an older model automobile which was traded in. Prior to making the purchase, plaintiffs test drove and inspected the car. According to plaintiffs’ testimony, they were told by Parkway’s salesman that the car “had never been wrecked.” Two other representations were alleged by the plaintiffs, one of which was not proven, and neither of which is material to the disposition of this appeal.

Shortly after the purchase, plaintiffs were told by a salesman of Lou Bachrodt Chevrolet Company, Parkway’s competitor, that the car had been “wrecked” or “damaged.” After having the car inspected at Bachrodt’s, plaintiffs sought to rescind their transaction with Parkway. When Parkway refused, plaintiffs brought this suit to rescind and recover the $1,595 they were allowed on their trade-in. Parkway, in its answer, denied making any misrepresentations, and filed a third-party complaint against Bachrodt, charging that Bachrodt, whose attorneys also represent the plaintiffs in these proceedings, wrongfully induced plaintiffs to breach their contract with Parkway.

The trial court, hearing the matter without a jury, dismissed the third-party complaint and entered judgment in favor of the plaintiffs and against Parkway for $1,595. Parkway appeals both rulings to this court, as well as the ruling which denied Parkway’s motion for a rehearing on the basis of newly discovered evidence.

Implicit in the trial court’s ruling was the finding that Parkway’s salesman had in fact represented that the car had never been “wrecked.” Moreover, the court so stated from the bench during the course of the trial. Although Parkway’s salesman denied making the representation, we see no reason, on the basis of the authorities hereinafter cited, to dispute the court’s determination to believe the plaintiffs’ testimony in this regard. In any event, the entire thrust of Parkway’s argument in this court and in the court below is that the car had never been “wrecked” prior to the sale to plaintiffs, and therefore the representation, assuming it were made, was not untrue.

The evidence as to the prior damage to the car was conflicting to say the least. The plaintiffs produced two witnesses who had been mechanics at Bachrodt’s at the time of the transaction, one of whom was still employed by Bachrodt. Their testimony was in substantial agreement. Both testified to having closely inspected the car and having observed that the hood was out of alignment and was supported by a considerable number of shims. A nick or dent in the bumper was noticed, and evidence of repairs was seen in and about the area of the grille and headlights. They both shared the opinion that the car had been in a collision. One of these witnesses testified to having had special training in the repair of Corvette fiberglass bodies.

Parkway likewise offered two witnesses to support its position that the car had not been materially damaged prior to being sold to the plaintiffs. One of these was a Chevrolet dealer who had considerable experience in the manufacture and repair of the fiberglass bodies used in Corvette automobiles, and in fact helped to prepare the manufacturer’s manual on the subject. He conceded the existence of numerous hairline cracks and paint over-spray in the front area of the car, but said this was not significant. He testified that such cracks can be caused from slamming the hood, and the overspray is sometimes a result of the touch-up which takes place during the final factory inspection. He stated that the strips of masking tape found on the body were not necessarily an indication of repairs, for such tape is also used in certain steps of the manufacturing process, and he has at times found these on newly delivered cars from the factory. He similarly gave no importance to the existence of shims under the hood. In short, his opinion was that the car had never been in a collision, and he found no evidence of repairs made after the car was originally delivered from the factory.

Parkway’s other witness was the original owner of the car, who testified that the car had been involved in only one accident or collision, and this was so minor that the only damage was a one square inch chip in the paint on the front end. This mishap, according to the prior owner, occurred when he struck another car from behind while moving at only five miles per hour, and he touched up the area himself. He subsequently traded in the car to another dealer who in turn wholesaled it to Parkway.

It can thus be seen that the trial court heard two witnesses give testimony that the car had not suffered material damage in the past, and two other witnesses give testimony suggesting precisely the converse. The central issue, as presented to this court, is whether the trial court was justified in choosing to rely on the testimony of plaintiffs’ witnesses.

Our courts have held repeatedly that, in the face of contradictory testimony, the findings of fact of the trial court will not be disturbed unless clearly contrary to the manifest weight of the evidence. Bauske v. City of Des Plaines, 13 Ill2d 169, 181, 148 NE2d 584 (1957); Gable v. Village of Hinsdale, 87 Ill App2d 123, 230 NE2d 706, 710 (1967); Loeb v. Gendel, 42 Ill App2d 111, 115, 116, 191 NE2d 642 (1963); Kropp Forge Co. v. Jawitz, 37 Ill App2d 475, 483, 186 NE2d 76 (1962). In the proceedings below, the court had the opportunity to watch and listen to the witnesses, to observe their demeanor and to reflect upon their responses. That court is therefore in a far better position to determine the relative credibility of the various witnesses than is this court, whose review of the testimony is limited to reading the printed questions and answers. We are unable to conclude that the findings of the trial court was against the manifest weight of the evidence.

Having concluded that the finding of a misrepresentation by the trial court should not be upset, we cannot fail to sustain the dismissal of the third-party complaint against Bachrodt. It was there alleged only that Bachrodt induced plaintiffs to breach their contract with Parkway, and this was by no means proven. The most that could possibly be gathered from the evidence (and even this is not clear) is that Bachrodt implanted in plaintiffs’ mind the idea to bring suit to rescind a contract. The agreement had already been fully performed, and could not therefore be breached. We cannot, on these facts, hold that it is a breach of contract for one to seek a judicial determination of his rights, nor a wrongful interference or inducement to suggest that he do so, particularly where the rights sought are thereafter judicially established. Parkway’s third-party complaint further alleged wrongful damage to its reputation, but this theory was apparently abandoned in that no proof or argument was offered in support thereof.

The final contention of Parkway is that the trial court erred in denying a rehearing on the basis of evidence discovered after the trial. This evidence would have consisted of the testimony of the owner of an automobile body repair shop who, according to his affidavit, would testify that he had examined the car in question at the behest of plaintiffs’ attorneys, that he was of the “firm” opinion that the car “had never been damaged,” that he so advised plaintiffs’ attorneys, and that one of plaintiffs’ attorneys told him that they would advise plaintiffs to dismiss their complaint because still another mechanic had given him a similar opinion. Aside from the dubious admissibility of much of the foregoing testimony, we cannot say that the trial court abused its discretion in refusing to grant a rehearing or open the proofs. The evidence would have been, at best, only corroborative of other testimony, and contained no new relevant facts. There was therefore no showing that a different result would likely have resulted. See, Bezark v. Kostner Manor, Inc., 29 Ill App2d 106, 115, 172 NE2d 424 (1961). Moreover, Parkway has neither shown nor argued that such evidence was not discoverable in time to be presented at the trial by the exercise of ordinary diligence, which is a primary requisite to allowance of a new trial under section 68.3 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 68.3). People ex rel. Drury v. Catholic Home Bureau, 34 Ill2d 84, 97, 213 NE2d 507 (1966).

For the reasons stated, we are of the opinion that the judgment and orders appealed from should be affirmed.

Judgment affirmed.

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


text:
    Yehudit Nardi, Plaintiff-Appellant, v. Haim Segal, Defendant-Appellee.
    Gen. No. 67-107.
    Second District.
    December 27, 1967.

      Maurice M. Loman, of Chicago, for appellant.
    Diver, Diver, Ridge and Brydges, of Waukegan, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, Yehudit Nardi, brought suit in the Circuit Court of Lake County against the defendant, Haim Segal, for an arrearage of child support in the sum of $1,125, together with interest and reasonable attorney’s fees based upon a divorce decree entered by the Rabbinical Court of Tel-Aviv-Jaffa on May 12, 1963. On motion of the defendant to dismiss the complaint, the court found that it had no jurisdiction either of the parties or subject matter and ordered that the plaintiff’s complaint at law be dismissed and stricken. It is from the order of dismissal that the plaintiff prosecutes her appeal.

The defendant and plaintiff were living together as husband and wife in the State of Israel. A written agreement executed by them and made a part of the divorce decree, provided that the defendant was to pay the equivalent of $100 per month for the support of the two natural children of the parties and further provided for an increase of the monthly support for the children based upon a cost of living index. At the time of the filing of the complaint (December 27, 1966), the cost of living index had risen 25%, and the defendant had made no payments for nine months.

The defendant at the time of the filing of the complaint maintained a residence in North Chicago, Illinois, while the plaintiff resided in Tel-Aviv, Israel. An authenticated copy of the decree of the Rabbinical Court of Tel-Aviv-Jaffa was attached to the complaint. The defendant was served by personal service and, thereafter, he filed a special and limited appearance challenging the jurisdiction of the court.

The issue raised by this appeal is whether or not the court had jurisdiction to enforce a judgment of a foreign country for child support.

In the case of Clubb v. Clubb, 402 Ill 390, 393-394, 84 NE2d 366 (1949), the Supreme Court held that the full faith and credit clause of the United States Constitution will not be construed as embracing public acts, records and judicial proceedings of other countries. In that case, the plaintiff-wife, was granted a divorce in England in 1929. The decree required the defendant to pay alimony during their joint lives or until further order of the court. The defendant was subsequently transferred by his employer to Chicago where he resided at the time of the suit. The plaintiff filed suit in chancery, based on the English decree, in which she prayed for judgment for the unpaid alimony, with interest, and unpaid attorney’s fees and costs. The chancellor dismissed the petition for want of equity and this was affirmed. The court at page 399 said:

“The rule of comity between nations would justify our recognition of a decree of a foreign country, but we do not believe comity would require us to enforce a foreign decree for alimony where no law exists here granting power to our chancery courts for that purpose. Comity, in a legal sense, is neither matter of absolute obligation on the one hand nor of mere courtesy and good will on the other, but it is a recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.”

Dealing with the power of a court of equity to assume jurisdiction to enforce a foreign country’s decree for alimony, the court went on to say at page 400:

“There being no statute conferring specific authority on courts of equity to enforce decrees of a foreign country, we have considered whether or not under its general powers a court of equity might assume such jurisdiction. We have heretofore held that jurisdiction of courts of equity to determine divorce cases and all matters relating thereto is conferred only by statute, and that these courts may exercise their powers in such matters within the limits of the jurisdiction conferred by the statute and not otherwise, as the jurisdiction depends solely upon the grant of the statute and not upon general equity powers.” . . . (citations omitted).
“. . . If a court of equity in our State has no general powers over divorce cases and all matters relating thereto, and citizens of our State cannot procure relief in such matters unless statutory authority so permits, it would not be just for us through claimed comity or alleged general powers to allow enforcement by our equity courts, through civil contempt, of a decree of a foreign country for the payment of alimony to one of its subjects. In our opinion comity does not require us to go that far.”

The doctrine that comity does not require an Illinois court to enforce a decree of a foreign country, nor does the full faith and credit clause of the Federal Constitution require an Illinois Court to recognize or enforce a decree of a foreign country, has been affirmed in Roberts v. Roberts, 11 Ill App2d 86, 92, 136 NE2d 590 (1956). In fact, it has been recognized in Illinois that a foreign country, in matters of matrimony, may issue judgments or decrees which will be unenforceable in this country. In Roth v. Roth, 104 Ill 35 (1882), the court said on page 44:

“. . . for it is clearly settled by the decided weight of private international law, so called, that every State has the power to enact laws which will personally bind its citizens or subjects when sojourning in a foreign jurisdiction, provided such laws in terms profess to so bind them when thus circumstanced. It is true, such laws have no extra-territorial effect so as to authorize their enforcement in a foreign country, and may, therefore, so far as their execution is concerned, be said to remain dormant till the return of those violating them, when they will be enforced in the same manner, and to the same extent, as if their infraction had occurred within the State enacting them. . . .”

It is axiomatic that there is no common law governing divorce. As was stated in Morrow v. Morrow, 15 Ill App2d 109, 145 NE2d 381 (1957), at pages 112-113:

“There is no common law governing divorce. Resort to the courts for such purposes is a privilege existing solely by grant of the legislature, People ex rel. Christiansen v. Connell, 2 Ill2d 332, 340, McFarlin v. McFarlin, 384 Ill 428, 430. The power of the court is therefore limited by statutory provisions, Smith v. Smith, 334 Ill 370, 379, and the long-recognized rule is that divorce laws will be strictly construed, Floberg v. Floberg, 358 Ill 626, 629.”

The authorities cited by the plaintiff for the proposition that an action may be maintained in an Illinois court based upon a foreign country’s judgment or decree for debt are distinguishable in that those authorities do not deal with matters of a matrimonial nature.

An action in debt is a common-law remedy. Illinois is a common-law state. However, the Legislature may do away with all of the common law or any part of it. In the instant case it has expressly acted and, we feel, has preempted the plaintiff’s theory that he is suing in an action of debt and not upon a foreign judgment based upon a divorce in chancery. However, he bottoms his case upon the divorce decree. The enforcement of a foreign country’s judgment or decree is governed by the Uniform Foreign Money-Judgments Recognition Act. (Ill Rev Stats 1965, c 77, §§ 121-129.) Since matrimonial matters are solely governed by statute, the pertinent provision of the aforesaid Statute, section 121(2), becomes paramount and it states:

“ ‘Foreign judgment’ means any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters.”

It is noted, therefore, that the pertinent statute specifically excludes enforcement of a judgment for support of a foreign country in matrimonial or family matters.

To contend that the Legislature did not understand the meaning of section 121 (2) is without merit, as it is presumed that when the Legislature passed the aforesaid statute, they did so with knowledge of the law prior to the enactment of the statute. It has been repeatedly held that, where statutes are enacted after judicial opinions are published, it must be presumed that the Legislature acted with knowledge of the prevailing case law. Illinois Power Co. v. City of Jacksonville, 18 Ill2d 618, 622, 165 NE2d 300 (1960) ; Heineman v. Hermann, 385 Ill 191, 196, 52 NE2d 263 (1944); Waesch v. Elgin, J. & E. Ry., 38 Ill App2d 56, 60, 186 NE2d 369 (1962).

The contention of the defendant that the decree of the plaintiff must be registered is without merit as the statute does not include a judgment from a foreign country but only judgments of the United States or any State or Territory thereof. See both the preamble and section 1 (a) of the Uniform Enforcement of Foreign Judgments Act. (Ill Rev Stats 1965, c 77, § 88 (a).) Therefore, the plaintiff’s cause of action is not barred because of failure to register the decree, but by reason of the aforesaid.

The judgment is therefore affirmed.

Judgment affirmed.

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


text:
    Ralph Nikkinen, Plaintiff, Counter-Defendant, Appellant, v. Frank F. Evans, Jr., Defendant, Counter-Claimant, Appellee.
    Gen. No. 67-109.
    Second District.
    December 27, 1967.

      Snyder, Clarke, Dalziel, Holmquist and Johnson, of Waukegan, for appellant.
    No brief filed by appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by Ralph Nikkinen, plaintiff, counter-defendant, herein called the plaintiff, from an order of a magistrate of the 19th Judicial Circuit, which found that neither the plaintiff, nor the defendant, counterclaimant Frank F. Evans, Jr., herein called the defendant, were guilty of negligence, and ordered that the plaintiff’s complaint and the defendant’s counterclaim be dismissed.

The defendant has filed no brief in this court. Such circumstance is regrettable since it leaves the judgment of the trial court without the support of brief and argument to which it is justly entitled. Also, under this posture of the case, if this court is to proceed on its own initiative to determine the merits of the case, it must do so in the dual role of advocate and judge — a position abhorrent to any court. People v. Spinelli, 83 Ill App2d 391, 393, 227 NE2d 779 (1967). However, we will consider the merits of this case.

George Tiffany, a deputy sheriff of Lake County, Nancy Nikkinen, wife of the plaintiff, and Leslie Nikkinen, his daughter, testified on the plaintiff’s behalf, and the defendant, by his attorney, cross-examined these witnesses, but presented no evidence on his own behalf.

It is undisputed that Nancy Nikkinen was driving the plaintiff’s car at a speed of 35 miles per hour in a southwesterly direction in the westbound traffic lane of Route 22; and that the defendant was driving his car in an easterly direction approaching Route 22 at a point where said route curved generally to the southwest. A stop sign located at the intersection of Route 22 and the road upon which the defendant was driving, required traffic on such road to come to a stop before entering Route 22. It was misting and the roadway was wet at the time in question.

Nancy Nikkinen saw the defendant’s car as it approached the intersection, and when it continued coming toward her, she applied the brakes on her car, skidded, and the cars collided within the westbound lane of Route 22 — the plaintiff’s car facing southwesterly, and the defendant’s car southeasterly. The front end of the defendant’s car protruded into the westbound lane of Route 22 and the point of impact was within such lane. Nancy Nikkinen did not see the defendant’s car until it passed the stop sign which was set back some distance from Route 22. The front end of the plaintiff’s car collided with the front end of the defendant’s car. The evidence was conflicting on whether the defendant stopped his car at the stop sign.

It was stipulated that the plaintiff’s damages were in the sum of $445.50. After the plaintiff rested his case, the defendant called no witnesses, and the magistrate entered the judgment order appealed from. Thereafter, the plaintiff filed a motion for a new trial based upon the contention that the defendant was guilty of negligence as a matter of law. The magistrate denied this motion and the issue here involved is whether the defendant was guilty of negligence as a matter of law.

The evidence conclusively established that the collision, in the case at bar, occurred in the west traffic lane of Route 22 where Nancy Nikkinen was properly driving the plaintiff’s car. The defendant’s car collided with that of the plaintiff in the lane of traffic where the plaintiff’s car had a legal right to be. The defendant had a duty to show that his car was in such traffic lane due to some reason other than his own negligence. Sughero v. Jewel Tea Co., 37 Ill2d 240, 242, 226 NE2d 28 (1967); Calvetti v. Seipp, 70 Ill App2d 58, 64, 216 NE2d 497 (1966). This he failed to do.

In Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) at page 503, the court stated:

“Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, . . . .”

And, further stated at page 510:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

We believe that all evidence in this case, when viewed in its aspect most favorable to the defendant, so overwhelmingly favors the plaintiff that no contrary judgment based on that evidence should stand, and we find that the defendant was guilty of negligence as a matter of law.

Accordingly, the judgment of the trial court dismissing the complaint filed by the plaintiff is reversed and judgment is herein entered against the defendant and in favor of the plaintiff in the sum of $445.50, plus costs of the suit.

Judgment reversed and judgment entered for plaintiff.

ABRAHAMSON, P. J. and MORAN, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Melvin C. Shipp, Plaintiff in Error.
    Gen. No. 67-135.
    Second District.
    December 27, 1967.
    Richard F. Eckert, of Freeport, for plaintiff in error.
    Dexter A. Knowlton, State’s Attorney, of Freeport, for defendant in error.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant, Melvin C. Shipp, was found guilty of larceny and burglary in a jury trial. The court entered judgment on the verdict and sentenced the defendant to the penitentiary for a period of 15 years to life.

This appeal, originally filed with the Supreme Court and transferred to this court, raises but one question, that is, whether or not the introduction into evidence of an arrest slip and testimony relative thereto was prejudicial to the defendant and thereby grounds for reversal.

A deputy sheriff testified from an arrest slip, based on a statement made to him by the defendant, as to the defendant’s age. The trial court admitted the arrest slip into evidence over objection and defense counsel then began cross-examination of the deputy and, upon examining the exhibit, noticed and stated in open court that the arrest slip pertained to a different crime. It seems that neither the court nor either counsel were aware that the witness was testifying from an arrest slip other than the one used for the crime being tried.

A conference between court and counsel, in chambers, took place during which the defense moved for a mistrial. This motion was denied and, on resumption of the hearing before the jury, the court allowed the State’s motion to withdraw the exhibit and instructed the jury to disregard the testimony of the deputy sheriff with regard to such exhibit.

The deputy, in his testimony, did not give the date of the arrest slip or in any way inform the jury that the arrest was for any charge other than that then being tried. The jury did not see the exhibit and, although they could have heard the comment of defense counsel that the exhibit applied to a different arrest, there is no proof that this is the fact.

The defense urges here that under People v. Epping, 17 Ill2d 557, 162 NE2d 366 (1959), prejudice against the defendant could easily be aroused in the minds of the jury from the erroneous evidence. In the Epping case the Supreme Court stated at page 565:

“It is true, as the defendant suggests, that, excluding matters relating to the habitual criminal, evidence of prior convictions ought to be carefully limited, for the law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime.”

However, it must be kept in mind that it was the defendant, not the State, that suggested to the jury that the slip referred to a different arrest than the one being tried. We feel that any error which might have occurred was cured by the withdrawal of the exhibit and the instruction given by the court. People v. Dell, 77 Ill App2d 318, 326, 222 NE2d 357 (1966).

In addition, we note that there was clear proof of defendant’s guilt, both from an eyewitness to the crime and from the evidence that, after his arrest, defendant led police to the hiding place of the loot. In such a case, even if it could be said that there was a suggestion of another crime, there would be no basis for reversal under the circumstances of this case. People v. Martin, 4 Ill2d 105, 109, 122 NE2d 245 (1954).

Judgment affirmed.

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


author: MR. JUSTICE MARVIN BURT

text:
    John McDonald, a Minor, by Ellis L. McDonald, His Brother and Next Friend, Plaintiff-Respondent, v. Charles S. Risch, Defendant-Respondent. John McDonald, a Minor, by Ellis L. McDonald, His Brother and Next Friend, Plaintiff-Respondent, v. Park Knight’s Club, Inc., a Corporation, Defendant-Petitioner.
    Gen. No. 66-61.
    Second District.
    December 28, 1967.

      ABRAHAMSON, J., dissenting.
    Moran, Klockau, McCarthy, Schubert and Lousberg, of Rock Island, for appellant.
    Roszkowski and Paddock, of Rockford, for appellee.
   MR. JUSTICE MARVIN BURT

delivered the opinion of the court.

John McDonald, a minor aged 19, brought this suit by Ellis McDonald, his brother and next friend, against Charles Risch for personal injuries claimed to have been caused by defendant’s negligence in the operation of his automobile. In a separate count in the same complaint plaintiff also joined the Park Knight’s Club, Inc. charging that plaintiff was injured by Charles Risch while Risch was intoxicated as a result of the sale or gift of intoxicating liquor by Park Knight’s Club.

A jury found in favor of both defendants and judgment was entered accordingly.

The court set aside the judgment in favor of Park Knight’s Club on hearing the plaintiff’s post-trial motion and ordered a new trial as to that defendant only. Leave was granted to said defendant to appeal.

Defendant contends the court abused its discretion in granting a new trial because the record is free from error, or if error was committed it was harmless and not prejudicial to plaintiff and for the further reason that if error was committed, it was not occasioned by, nor attributable to that defendant.

Plaintiff, however, contends that the court committed error in refusing to admit into evidence certain written interrogatories submitted to defendant Park Knight’s Club and its answers thereto relative to the serving of intoxicating liquor to Charles Risch at the club.

Plaintiff’s evidence established that he was struck by a car driven by the defendant Charles Risch on North Second Street in Rockford, Illinois, on August 8, 1964; that shortly before the accident Risch had consumed a quantity of liquor in a tavern operated by defendant Park Knight’s Club, Inc.; that plaintiff sustained serious bodily injury as a result of the accident. This evidence is not in dispute and was not seriously contested at trial.

In this appeal we are not concerned with the circumstances of the accident, but only with the propriety of the setting aside the judgment in favor of the defendant Park Knight’s Club, Inc., based upon the sale of intoxicating liquor to Risch.

Plaintiff offered three witnesses on the issues of gift or sale of intoxicating liquor and intoxication. Under section 60 examination (Ill Rev Stats 1963, c 110), Risch testified that he went to the Park Knight’s Club at 8 p. m. on the night of the accident accompanied by Patricia Seif and that between that time and shortly before 10 p. m., he had four 12-ounce bottles of beer. He denied feeling the effects of the liquor.

Wilson Lowery, the bar manager of Park Knight’s Club, testified in behalf of the plaintiff. He said that Risch came into the club around 4 p. m. on August 8, 1964. Between that time and 6 p. m., Lowery served Risch two 12-ounce bottles of beer and one gin and squirt. Lowery left at 6 p. m. while Risch was still at the club. He did not return that evening. Risch categorically denied being in Park Knight’s Club between the hours of 4 p. m. and 6 p. m., and denied drinking two bottles of beer and one mixed drink during that time at the club.

Joe Powers, a part-time bartender at the Park Knight’s Club, also testified in behalf of plaintiff. He said that he came in to help Bill Farnan, another bartender, at about 9 p. m. on the date of the accident. In Powers’ opinion, based on his observation of Eisch at that time, the latter was intoxicated. After Powers and Farnan conferred on Risch’s condition, Farnan asked Risch to leave. Risch was angry and left shortly thereafter. Powers served him a glass of 7-Up before he departed. He left without causing any disturbance and walked out all right.

Risch returned to the bar around 12 midnight and argued with Powers about whether he had been refused service earlier. In Powers’ opinion Risch was no longer intoxicated at that time.

Deputy Bailey testified in behalf of defendants that he talked with Risch at the accident scene, but did not smell any beer or liquor on his breath. He said that if he had believed from Risch’s appearance that he was intoxicated, he would have ordered a blood test. No such test was made.

Plaintiff offered in evidence, pursuant to an oral stipulation with counsel for Park Knight’s Club, answers to written interrogatories propounded by the plaintiff. The answers were signed by Robert L. Ellison, attorney for the Club. They contained admissions of a sale of 5 or 6 bottles of beer and one mixed drink to Risch and a brief description of the incident concerning refusal of service.

Counsel for Risch objected to the admission of the answers to interrogatories on the ground that they were hearsay as to his client. The court sustained the objection and the offer was refused.

The main issue in this appeal is the propriety of the trial court’s ruling excluding the interrogatories proposed to the defendant Park Knight’s Club, Inc., by plaintiff and the answers thereto. Only two interrogatories are involved here, numbers three and six. Number three is as follows: “State the type and amount of alcoholic liquor consumed by Charles S. Risch in the Park Knight’s Club, Inc., on said date.” Interrogatory Number six read: “State whether Charles S. Risch was involved in any altercation at the Park Knight’s Club, Inc., on said date.” Objection was made that these interrogatories were incompetent as against the defendant Charles S. Risch, which they were, but appellant pointed out that evidence incompetent as to one defendant may be admissible as to another defendant, with its use and application limited by proper instructions from the court. Ill Rev Stats 1965, c 110, pars 101.19-10, 101.19-11; Consolidated Ice Mach. Co. v. Keifer, 134 Ill 481, 25 NE 799 (1890); Eich v. Sievers, 73 Ill 194 (1874); Clark v. Bazzoni & Co., Inc., 7 Ill App2d 334, 129 NE2d 435 (1955); Cleary Handbook of Illinois Evidence, Second Edition, § 7.9, page 108.

Park Knight’s Club admitted in its answers to the interrogatories that Risch was served five or six bottles of beer and one mixed drink. Defendant Park Knight’s Club, Inc., contends that even if the interrogatories had been admitted the evidence would have merely been cumulative evidence and the refusal to admit them in evidence was harmless error.

Illinois courts have uniformly held that the exclusion of evidence of a fact fully established by other evidence, or not disputed by the party against whom the evidence is offered, is harmless error. 3 Illinois Law and Practice, Appeal and Error, § 825. Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 132, 208 NE2d 358 (1965); Johnson v. Country Life Ins. Co., 284 Ill App 603, 622, 1 NE2d 779 (1936). “An error in excluding evidence is not obviated, however, where the evidence admitted is not as broad or as comprehensive as that excluded, and the error is prejudicial where the evidence excluded is of greater probative force than that admitted or where the evidence is conflicting and the exclusion of the testimony of one witness may have affected the result.” 3 ILP, § 825.

There is a conflict in the testimony as to the quantity of alcohol consumed by Eisch before the accident. Eisch denied drinking in the afternoon hours between 4 p. m. and 6 p. m. on the day in question; whereas, the bartender Lowery testified that he did serve Eisch two bottles of beer and one gin and squirt between those hours in the afternoon. Had the interrogatories been admitted into evidence the jury would have had before it an admission by the defendant Park Knight’s Club that on the date in question Eisch had been served a total of five or six bottles of beer and one mixed drink. Also, the jury could have considered the admission that Eisch was refused any more drinks by the defendant Park Knight’s Club. Thus, without these interrogatories and the answers it cannot be said that the quantity of alcohol consumed by Eisch or the circumstance of the refusal have been fully established by other evidence, undisputed by the party against whom the evidence is offered.

“An Admission of a party to the record is original, primary, independent and substantive evidence of the fact or facts covered thereby, and it may be used to make out the opponent’s case by proving or disproving a fact in issue.” 18 ILP, page 277. It is also well established that while an admission is not conclusive as a matter of law, it is one item of evidence which should be weighed together with all of the other evidence in the case. 18 ILP, page 263.

Since the key issue was the degree of intoxication of Eisch prior to the accident, any evidence on that point should be considered by the jury and. it is reasonable to conclude that the jury might have reached a different result had it known that Park Knight’s Club admitted that Eisch consumed five or six bottles of beer and one mixed drink and that Risch had been refused further service.

In the opinion of the court the trial court was correct in granting a new trial as to the defendant Park Knight’s Club, Inc. and the decision of the trial court is, therefore, affirmed.

Affirmed.

MORAN, J., concurs.

ABRAHAMSON, P. J., dissents.


author: MR. JUSTICE ABRAHAMSON

text:
    Illinois Building Authority, a Body Corporate and Politic, Appellant, v. Stanley Dembinsky, Jr., et al., Appellees.
    Gen. No. 67-73.
    Second District.
    December 28, 1967.
    Rehearing denied February 1, 1968.

      Morrison and Nemanich, of Waukegan, for appellant.
    Frank M. Daly, of Waukegan, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The Illinois Building Authority brings this appeal from a judgment entered by the Circuit Court of Lake County on December 12, 1966, based on a jury verdict, that found that the defendants were entitled to compensation in the amount of $48,400 for certain property owned by them and taken by the appellant pursuant to the Eminent Domain Act.

On August 16, 1965, the appellant (hereinafter called petitioner) filed a petition to condemn certain property owned by the defendants (hereinafter called owners), for a public park and recreational use. The property is a vacant, rectangular tract of land of approximately 26 acres that had been acquired by the owners in 1953 and is located in an unincorporated section of Lake County between the municipalities of Waukegan and Zion. It is bounded on the west by a railroad right of way, a public utility power line and, approximately 350 feet further, by a mobile home park and on the north, east and south by the public owned Illinois Beach State Park to which it will be joined.

The tract lies within a flood plain area and contains six ponds, comprising approximately 10 acres, that were caused by sand mining operations conducted by the owners. Another 6 acres are low and swampy and the remaining 10 acres are roadways, corridors and corners between the ponds. Two dirt roads provide access to the property from the south.

The petitioner contends that the judgment order must be reversed and the cause remanded for a new trial because of various errors committed in the trial that prevented the fair and impartial proceeding to which it is entitled. The specific errors urged by the petitioner are the unreasonable restrictions imposed on its pretrial discovery; the prejudicial effect of a certain sign erected on the property and other activity observed by the jury during the course of their physical examination of the property; the admission and exclusion of evidence of sales of certain other property by the trial court; and, the prejudicial conduct of counsel for the owners.

Richard Drew, one of the owners, refused, on advice of counsel, to answer certain questions propounded to him in the course of a discovery deposition. The objections to some of those questions were sustained by the court at a subsequent hearing and Drew was ordered to answer certain others. Drew was not required to answer questions relative to any application on his part for rezoning of the property under the ordinances of Lake County; the amount of sand removed from the property since he had acquired it and specifically those amounts removed during the years 1964 and 1965; the price obtained for the sand that was removed and sold and the names of the purchasers. The petitioner does not contend that the lack of any specific information thus sought adversely affected the presentation of its case but rather that the limitations imposed on its discovery prevented its foreknowledge of the owners’ “theory” of the case, that is, their opinion of the highest and best use of the land.

It is argued that until the trial commenced, the petitioner had no idea what evidence would be presented by the owners as to the highest and best use and was thus unable to properly prepare to engage that crucial element in all comdemnation cases. The record contains little support for the idea that the petitioner was unapprised that the owners would offer evidence that the land was used as a sandpit and that, under the circumstances, that use was the “highest and best” for the property. Indeed, the disclosures that the land was used as a sandpit and estimates as to the amount of sand already removed and that amount still deposited on the property were made during the presentation of the petitioner’s case in chief. In any event, there is no authority for the proposition that a condemning body is entitled to discover, before trial, the opinion testimony to be presented by the landowner as to the higest and best use of the property nor do we feel that there is a compelling reason for such a proposition.

A large sign was placed on the property shortly before the jury visited it. The sign declared, in bold letters, “Clean Sand, 75¡zf yd. Delivered $2.35 yd.” The petitioner argues that the sign inevitably injected an improper element into the computation by the jury of the compensation to which the owners were entitled.

It is the rule in Illinois that minerals deposited on land to be condemned should not be considered separately in any determination of value. Department of Public Works and Buildings v. Hubbard, 363 Ill 99, 102, 1 NE2d 383; Forest Preserve Dist. of Cook County v. Caraher, 299 Ill 11, 17, 132 NE 211. It is felt that a separate valuation on the deposits must include the elements of prospective profits, market demands, costs and other factors of a speculative nature and therefore are too uncertain to be properly employed. City of Chicago v. Central Nat. Bank in Chicago, 5 Ill2d 164, 125 NE2d 94. It is proper, however, to consider the presence of the minerals as part of the overall value of the land.

There is no indication that the jury made a separate evaluation of the sand deposits on the land in its determination of the value as a whole. It was told to disregard the sign and the only evidence introduced as to the various prices charged for sand was presented by the petitioner. On the same point, it does not appear that the jury was affected by the presence of numerous dump trucks, bulldozers and draglines on the property during its visit although it is urged by petitioner that the scene was staged to create the impression of a virtual beehive of mining activity. It was abundantly established by other competent evidence and admitted by the petitioner in its closing argument, that the property was used, albeit sporadically, as a sandpit and that it could be so used in the future. The intensity of that use on any particular day was not properly a factor in any determination of value nor does it appear that it was so considered by the jury.

It is well recognized that the trial court will be given wide discretion in its admission or exclusion of evidence of other sales in a determination of value. City of Chicago v. Vaccarro, 408 Ill 587, 600, 601, 97 NE2d 766. “If a reasonable basis exists for the purpose of comparing the land sold with property being condemned, such dissimilarities that might exist will affect the weight, not the competency, of the evidence and can be considered by the jury.” Park Dist. of Highland Park v. Becker, 60 Ill App2d 463, 470, 208 NE2d 621. The trial court, in the case at bar, refused to admit into evidence a 1964 sale of a 42-acre parcel owned by Elmer Fuller approximately 7 miles from the subject property for a price of $750 per acre. The petitioner claims that the exclusion of this sale was improper inasmuch as the property contained sand and gravel, was subject to flooding, and was located directly across the road from a parcel the sale of which was admitted into evidence as comparable. The offer of proof indicated that Fuller would testify that he had used the property as a farm and did not know the use proposed by his purchaser. Prior to his sale, Commonwealth Edison had made borings on the property and Fuller observed sand and gravel in the borings.

The court did admit, over the objections of the petitioner, evidence of a 1955 sale of 93 acres 8 miles from the subject property; a 1957 sale of 60 acres 15-20 miles away; a 1964 sale of 56 acres that was 10 miles from the property; a 1965 sale of 95 acres 15 miles away; and the 1966 sale of 40 acres across the road from the Fuller farm. It is true, as contended by the petitioner, that some of these sales occurred years before the petition to condemn was filed and certainly the time of the sale is an important element in any determination of its comparability. Likewise, the amounts of sand and gravel deposited on the parcels differed widely. These dissimilarities were, however, lucidly disclosed to the jury and would not, in themselves, make the sales incompetent as evidence. It is significant that all of the sales admitted involved purchasers interested primarily in the sand and gravel deposits. There was no evidence that the Fuller sale was at all predicated on the presence of any mineral deposits and the conclusion of the trial court that it was not comparable was certainly not an abuse of its discretion.

The counsel for the defense did permit himself an unwarranted moment of levity with a recitation of a short stanza from a nursery rhyme and we certainly would not encourage such conduct but neither can we agree that the jury was in any way affected by it. It was also improper for the defense counsel to remark that his opponent had coached a witness but an examination of the colloquy indicates that it referred only to a specific and leading question asked of the witness and could not be considered sufficiently harmful to merit reversal.

The witnesses for the owners testified that the highest and best use of the property was as a sandpit and, ultimately, for landfill and, as such, was worth between $2,000 and $2,600 an acre. The petitioners presented evidence that the property was worth no more than $500 an acre and that the highest and best use was as a private hunting or fishing club. The verdict returned by the jury was well within the range of the evidence adduced. Since we have also concluded that the trial proceeded in accordance with the interests of justice, the judgment order of the lower court will be affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.