author: MR. JUSTICE SCHWARTZ

text:
    John Bardo, Plaintiff-Appellee, v. The Chicago River and Indiana Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,824.
    First District, Third Division.
    September 21, 1967.

      Richard O. Olson, Alvin E. Domash, Thomas J. Healey, and Robert R. Lanham, of Chicago, for appellant.

      Baskin & Server, of Chicago (Fred S. Posner, of counsel) , for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff brought suit to recover for injuries sustained during the course of his employment as a switchman. He charges general negligence pursuant to the provisions of the Federal Employers’ Liability Act and failure of an automatic coupler to operate properly in accordance with the requirements of the Federal Safety Appliance Act. The court directed a verdict on both theories of liability and submitted only the question of damages to the jury. The jury returned a verdict for $32,500 and judgment was entered thereon. Defendant appeals.

Defendant contends that the court erred in (1) directing a verdict for plaintiff as to liability under the Safety Appliance Act; (2) directing a verdict for plaintiff as to liability under the Federal Employers’ Liability Act; and (3) refusing to allow defendant to cross-examine the plaintiff concerning his negligence and refusing defendant the right to examine the plaintiff pursuant to the provisions of Section 60 of the Civil Practice Act.

The accident occurred at about 10:30 a. m. on February 28, 1956, while the plaintiff and other members of his train crew were moving railroad cars at the Realemon juice plant in Chicago. The Realemon factory extends in a north and south direction and is serviced by a single switch track running in the same direction. This switch track runs into the factory and then connects with a series of main line tracks which generally parallel the building on its easterly side. Train movements into and out of the plant are accomplished by the use of a switch located about five railroad car lengths north of the plant doorway. The interior of the plant has track space to spot or place five railroad cars south of the doorway. There is a dock located along the west side of the railroad track both inside and outside of the plant. The dock is about five feet high and there is a space of about six inches between it and cars parked along the siding.

On the day of the accident the train crew was moving a cut of three cars with a switch engine. Plaintiff testified that the last car was to be left in the factory and that he rode on one of the cars until the engine had pushed the cars into the proper position. He then got onto the platform and signalled for the train to stop. When the train was stopped, he got off the platform and down between the cars with the intention of uncoupling the last car, the one intended for Realemon. He shut off the air with his right hand, pulled the pin lifter with his left hand, heard it click into place, and signalled the conductor to pull the engine and remaining two cars back north. According to his testimony the couplers failed to operate properly, the Realemon car failed to disengage from the other two cars, and as the train pulled slowly to the north, the Realemon car moved with the rest of the train, pinning him between the platform and the moving cars. He further testified that Thomas Osak, the fireman, eventually uncoupled the cars by operating a pin lifter from the east side of the train and that the cars were then pulled apart. The engine and two cars moved several feet to the north in this operation. Plaintiff’s testimony was substantially corroborated by Stanley Niemec, another member of the crew.

The fireman Thomas Osak testified however that the switching crew was in the process of removing cars from the plant and not in spotting any there. According to his testimony the train moved toward the plant and then stopped six or eight feet from the factory door. After the door was opened the train proceeded south into the factory. The leading car was three or four feet inside the building when the engineer shouted, “Oh God, I think Bardo got hurt.” Osak then jumped down from the engine and ran to where Bardo was lying which, according to Osak, was several feet inside the factory doorway between the platform and the car.

Defendant first contends that the court erred in directing a verdict as to liability under the Federal Safety Appliance Act. To establish liability under the applicable provision of that statute the plaintiff must prove that the injury was caused by failure of the coupler to work properly, and this requirement is satisfied by a showing that the coupler failed to operate at the time in question. Carter v. Atlanta & St. A. Bay Ry. Co., 338 US 430 (1949); Myers v. Reading Co., 331 US 477 (1947); Affolder v. New York C. & St. L. R. Co., 339 US 96 (1950). Proof of a violation of section 2 of the Safety Appliance Act eliminates the consideration of contributory negligence for any purpose. 45 USC § 53; Chicago, St. P., M. & O. Ry. Co. v. Muldowney, 130 F2d 971 (1942).

Defendant contends that a question of fact existed as to whether or not plaintiff’s injuries were caused by a failure of the coupler and that the case should have gone to the jury on that issue. Defendant argues that if the testimony of Thomas Osak were taken as true, the car with the allegedly faulty coupler could not have been in the building at the time of the injury and the accident could not have occurred in the manner described by the plaintiff and the witness Stanley Niemec. It should also be noted that Osak testified that the train crew was preparing to remove cars from the factory and not preparing to leave cars there. If this were true, then the allegedly faulty coupler could not have been involved in the operation regardless of the position of the train relative to the factory.

Issues of fact in such cases as the instant one must be submitted to the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ on the issue of liability. Rogers v. Missouri Pac. R. Co., 352 US 500 (1957); Williams v. New York Cent. R. Co., 402 Ill 494, 84 NE2d 399. In the instant case the jury should have been allowed to decide whether the coupler was involved in the accident and whether it failed to operate. The court erred in directing the verdict on the issue of liability under the Federal Safety Appliance Act.

The other points raised in this appeal involve the admissibility of evidence concerning contributory negligence. Under the F. E. L. A., contributory negligence does not bar recovery, but damages are to be diminished in proportion to the amount of negligence attributable to the employee.

After the witness Stanley Niemec had testified and before the plaintiff took the stand, the court determined that this was a case entirely within the purview of the Federal Safety Appliance Act and that provisions of the F. E. L. A. concerning negligence were inapplicable. Therefore on plaintiff’s motion, counsel for defendant was ordered to restrict his cross-examination of the plaintiff and to omit any reference to contributory negligence. At the same time the court held that if the defendant produced any evidence to remove this case from application of the Federal Safety Appliance Act, it would be allowed to recall the plaintiff for examination concerning alleged contributory negligence. Later in the course of the trial and after Thomas Osak had given an account of the accident which conflicted with the plaintiff’s, the defendant asked for permission to call the plaintiff as an adverse witness. The request was denied, and the defendant charges error in this ruling.

Holding, as we do, that the issue of liability under the Safety Appliance Act should have been submitted to the jury, it follows that if a jury in its deliberations should determine that the defendant was liable on the general negligence count but not liable for any violation of the Safety Appliance Act, then contributory negligence would be a factor in apportioning damages. The court therefore erred in denying the defendant an opportunity to examine the plaintiff with regard to contributory negligence.

For the reasons herein expressed the judgment is reversed and the cause remanded with directions to grant a new trial, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.

       45 USC § 2 provides as follows:
      “It shall be unlawful for any common carrier engaged in interstate commerce by railroad to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”

       45 USC § 53 provides:
      “In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”


source: Caselaw Access Project

author: Opinion by JUSTICE DEMPSEY.

license: Public Domain

text:
    Edward Howard Mehlenbacher, Jr., Administrator of the Estates of Dorothy Mehlenbacher and Tod Mehlenbacher, a Minor, Deceased, and Herbert Tate, Plaintiffs-Appellees, v. Elgin, Joliet & Eastern Railroad Company, a Corporation, and Steve Bayci, Defendants-Appellants.
    Gen. No. 51,664.
    First District, Third Division.
    September 21, 1967.
    Rehearing denied November 3,1967.
    Hackbert, Rooks, Pitts, Fullager & Poust, of Chicago (W. Gerald Thursby, of counsel), for appellants;
    Finkel & Siegel, Chris D. Gregory, and Maurino R. Richton, of Chicago, for appellees.
   Opinion by

JUSTICE DEMPSEY.

Not to be published in full.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James A. Watson, Defendant-Appellant.
    Gen. No. 51,131.
    First District, Third Division.
    September 28, 1967.

      Gerold W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of burglary. After a jury trial defendant was sentenced to a term of five to fifteen years in the penitentiary.

Defendant contends on appeal that he was not proven guilty beyond a reasonable doubt; that the jury should not have been given an instruction on flight, and that defendant was denied a fair trial due to misconduct of the prosecutor and improper admonition by the court. Defendant raised another point based on an allegedly prejudicial remark of the trial judge as shown in the record. An additional certification of the Report of Proceedings was filed which eliminated the prejudicial word which was the basis for this point. This court ordered that the record be sent back to the trial court and that, if it did not accurately disclose what had occurred there, it should be made to conform to the truth in conformity with Supreme Court Rule 329. A certified Report of Proceedings on that order was filed in this court which shows that no prejudicial remark was made and therefore defendant’s point is not tenable.

Mrs. Margaret Byrne testified that on June 15, 1965, she lived at 7626 Cregier with her three children. On that date she went to bed about 11 or 11:30 p. m., but was later awakened by a noise in the house. She called to her older son, William, and said “Someone’s in the house.” She saw the light of a flashlight shining in the dining room. She was momentarily blinded by the light and then heard someone run out the back of the house, chased by her son.

She also testified that about $7, including a $5 bill, a bill and some change, was missing from her wallet which had been left on the dining room table.

William Byrne testified that he was awakened about 2:30 a. m. by his mother’s screams. He saw a shadow in the living room. He chased the person through the house. When he reached the back porch he saw the man in the alley. He was able to see that the figure was a male Negro about 5' 8" wearing a tan sport coat and dark pants.

Instead of going after the figure Byrne went back into the house to see if anyone else was there. He then ran out the front door and down the street, parallel to the alley in which he had last seen the burglar. As he neared the corner of 77th Street he again saw the figure (wearing the same coat and pants) heading east.

He returned home and gave a description of the figure to police. Shortly thereafter, as a patrol car approached 75th and Constance (a few blocks from the Byrne home), they observed a male Negro (defendant) in a tan coat and dark pants. They alighted from the car and followed the man into an alley. Officer Laughlin hollered to the man to halt, announced he was a police officer and fired a warning shot. Defendant ran away from the officer into a yard. When the officer reached the gate to the yard defendant changed direction and headed towards the officer with his hand raised and holding a flashlight. He slipped on the grass, dropped the flashlight and was taken into custody.

Defendant was taken to the Byrne home. William Byrne testified that the person in police custody was the same figure he had seen earlier and was wearing the same coat and pants. Defendant was searched in front of the Byrne house and in his clenched fist were found two crumpled bills, a $5 bill and a $1 bill. Some small change was found in his pocket.

Defendant contends that he was not proven guilty beyond a reasonable doubt. In support of this he claims that there was no actual identification of him by any witness and that an improper identification was allowed at trial and was supported by inadmissible hearsay testimony.

William Byrne testified that, while he had not seen defendant’s face, he had seen his general build and the clothing he wore. These were the bases for his identification of the defendant the night of the burglary shortly after the crime was committed. While this may by itself seem weak, this weakness does not make it valueless and it was some evidence of Watson’s guilt. Defendant has cited cases in which convictions were reversed because of vague and doubtful identifications but those identifications were the only evidence connecting those defendants with the crimes of which they were accused. In the case before us there is more, albeit circumstantial, evidence. Watson was found in the neighborhood of the crime soon after it took place, and on his person were found a flashlight and money of the same denomination as Mrs. Byrne said was missing from her wallet. The court in People v. Lofton, 64 Ill App2d 238, 243, 212 NE2d 705, stated:

“A conviction based on circumstantial evidence may be upheld where the proof of circumstances leads on the whole to a satisfactory conclusion and produces a reasonable and moral certainty that the defendant committed the crime as charged.”

Looking at the circumstantial evidence and the identification, which is entitled to some weight, we cannot say Watson’s guilt was not proven beyond a reasonable doubt.

Defendant also claims that it was prejudicial and reversible error for the court to allow Byrne to testify that defendant was the same man as the one he saw in police custody after the crime. While this practice may not be commendable, the jury could certainly distinguish the identifications, and recognize this as merely testimony that this was the man who was arrested the night of the crime. Allowing that testimony was not reversible error.

Defendant also argues that the impact of Byrne’s identification of Watson (as the man whom he saw running away from the scene of the crime) was increased by the admission of hearsay testimony of a police officer who was there at the scene. He claims that the admission of that evidence constituted grounds for reversal. The officer testified that when Watson was brought to the Byrne home he (the officer) talked with Byrne. While defendant claims that the officer testified to statements made by Byrne about defendant but out of his presence, this is not supported by the record. The officer described the scene, and in particular the relative positions of Byrne and defendant. He was not allowed to relate the remarks of Byrne made at that scene. Hearsay testimony is defined in McCormick, Law of Evidence, 1954, at page 460 as:

“testimony in court ... of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of an out-of-court asserter.”

The description given by the officer, therefore, was not hearsay. Although defendant claims that this testimony was also prejudicial, we do not agree. It merely portrayed the circumstances of Byrne’s identification of defendant.

Defendant next contends that the jury should not have received an instruction as to flight. Defendant failed to abstract all instructions but put forth only the one complained of, and under this condition the court will not consider the alleged error. People v. Harrell, 34 Ill App2d 205, 180 NE2d 889; People v. Woodruff, 9 Ill2d 429, 137 NE2d 809. See also People v. Bybee, 9 Ill2d 214, 221, 137 NE2d 251.

Defendant next contends that he was denied a fair trial due to misconduct of the prosecutor and improper admonition by the court. From a reading of the record it would appear that defense counsel continually interrupted the proceedings with objections. This is not the function of an attorney. While it may be that he felt these were valid objections and should have been voiced as a matter of trial tactics, it appears that counsel was merely attempting to bait the court and irritate the opposing counsel. Counsel must remember that he is an officer of the court and must behave accordingly. .

The particular instances of which defendant complains do not support his contention. Both times counsel was engaging in strenuous objections to testimony during redirect examination of the State’s witnesses. In each case the testimony tended to clarify that brought out by defense counsel during cross-examination. Any admonitions were not due to the proper objections of counsel (which were sustained) but rather due to his constant harassment of the prosecutor and of the court. Defendant may not complain of a matter evoked by his own conduct. People v. Weisberg, 396 Ill 412, 71 NE2d 671, and People v. Woodley, 57 Ill App2d 380, 206 NE2d 743, held that an attorney could not claim as error a reply to his own improper argument. Likewise he may not complain here of the court’s reply to his improper conduct.

Defendant also contends that he was unduly and improperly hindered in his cross-examination of William Byrne. During that cross-examination counsel was allegedly attempting to impeach Byrne on the basis of a statement made to a police officer the night of the burglary. Byrne had testified on direct examination that he had seen defendant walking east on 77th Street as he (Byrne) was running down Cregier. Defense counsel was attempting to show that Byrne had said on the night of the crime that defendant went down Eastwood. Eastwood is a street on the north side of Chicago, miles from the Byrne home.

The State, in its brief, attached as an appendix an affidavit of an assistant State’s Attorney in which he identified two exhibits, People’s exhibits numbers two and four for identification. However, these exhibits were never offered into evidence and the State could not have offered them at the time they were mentioned (during cross-examination of Byrne by defense counsel). These items were police reports which are not in the record and therefore not proper subject matter for our review. The record may not be implemented by affidavits or attachments in a brief. People v. Wright, 80 Ill App2d 300, 225 NE2d 460.

Prom the record it appears that defense counsel, realizing a typewritten copy of what Byrne had said was inaccurate and that the original longhand copy correctly stated that defendant was headed east, insisted on questioning Byrne about the difference. Counsel knew that the witness could not be impeached on this point and could only have been trying to confuse or mislead the jury. The State went beyond its rights in making statements at that time about the two police reports, but any error on the part of the State was evoked by the deceptive tactics of defense counsel. A review of this incident shows no reversible error.

In light of the foregoing discussion, the conviction is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    John F. Kimbark, Appellant, v. Alex Satas and Vytautas Galvydis, Appellees.
    Gen. No. 51,532.
    First District, Third Division.
    September 28, 1967.

      Samuel Nineberg and Alexander O. Walter, of Chicago (Samuel Nineberg, of counsel), for appellant.
    Stiller and Strauss, and Irving S. Friedman, of Chicago (Irving S. Friedman, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from two orders entered by the Probate Division of the Circuit Court of Cook County. The first order admitted to probate a will of Walter Savickas dated June 4, 1964. The second denied probate to a prior will of Savickas dated September 15, 1961, and to a codicil to that will dated July 12, 1965. The sole question for our determination is whether or not that codicil revoked the 1964 will and revived the 1961 will.

The September 15, 1961 will was an extensive six-page disposition of Savickas’s property. It bequeathed $1,000 to Walter Savickas, his son, $1,000 to Ksavera Savickas, $500 to Anton Savickas, a nephew, $500 to Melvina Savickas, a sister, $500 to John Kimbark, $100 to Stephanie Haehnel, and various other sums to various charities. It named John Kimbark, the appellant in this appeal, executor of the will.

The second will of Walter Savickas, executed on June 4, 1964, was a one-page printed form. It revoked all prior wills and codicils and bequeathed all of the testator’s property to Alex Satas and Vytautas Galvydis, whom he named as executors. It does not appear that they were in any way related to the testator.

On July 12, 1965, Savickas executed a codicil which recited that it was “a first Codicil to my Last Will and Testament which bears date of the 15th of September, 1961.” In it the testator referred to the 1961 will and revoked the bequest of $100 to Stephanie Haehnel. He also recognized that four of the legatees in the 1961 will were “in Lithuania, a country behind the ‘Iron Curtain,’ ” and gave the executor as trustee the sole power and discretion to make distribution to those beneficiaries. Finally, he recited, “I hereby confirm my said Will in all other respects.” The codicil was properly signed and attested to by two witnesses.

Appellees contend that it does not revive the 1961 will because the testator did not express any clear intent to do so, and that even had he intended to revive the 1961 will, he failed to comply with the requirements of the Probate Act which specifically cover revivals. Section 46 of the Probate Act is the applicable Illinois statute concerning the revival of wills. At the time of the testator’s death in 1965, the section read in pertinent part as follows:

“Ch 3, Sec 46.
“No will which is in any manner revoked shall be revived otherwise than by the re-execution thereof, or by an instrument in writing declaring the revival and signed and attested in the manner prescribed by this Article for the signing and attestation of a will.”

Appellees contend that this section must be read literally with a strict interpretation being placed on the words “declaring the revival.”

Appellant contends that the last clear intention of the testator was to revive the 1961 will and that he accomplished this by executing the codicil to that will.

The codicil is the last declaration of the testator’s testamentary intentions. It is clear from that document that he considered the 1961 will to be his last will and testament. It begins by stating, “I, Walter Savickas, of Cicero, Illinois, hereby declare this to be a first Codicil to my Last Will and Testament which bears date of the 15th of September 1961.” It then makes specific references to the various provisions of the 1961 will and to certain named beneficiaries who are beneficiaries only in the 1961 will. It would make no sense whatsoever if the 1964 will, rather than the 1961 one, were taken to be the testator’s intended last will. The only conclusion that can be reached is that at the time the testator executed the codicil, he intended that his property be distributed in accordance with the provisions of his 1961 will as amended by the codicil. It is equally clear that he intended that the 1964 will would be of no effect. That will purported to dispose of all of the testator’s property, as did the 1961 will. As such the two are wholly inconsistent, and since the codicil is the last expression of the testator’s intention, it must be concluded that he intended to revoke the 1964 will.

It remains to be determined whether he properly executed this intention in accordance with the statutory requirements. Section 46 of the Probate Act provides that a will which has been revoked may be revived in either of two ways — by reexecution or “by an instrument in writing declaring the revival and signed and attested in the manner prescribed by this Article for the signing and attestation of a will.” The testator did not re-execute the will, but he did execute a codicil in the manner prescribed for the signing and attestation of a will. The only question is whether the codicil met the requirement of “declaring the revival.” We can find no cases interpreting this portion of the statute. The Supreme Court of this state however had occasion to define what was necessary to “declare” a revocation of a will as required by section 17 of the old probate statute. In Lasier v. Wright, 804 Ill 130, 136 NE 545, at p 552, the court said:

“When a testator makes a will absolutely inconsistent with all other wills and declares it his last will and testament, such acts of necessity amount to a declaration that all former wills are revoked. The word ‘declare,’ as defined by the lexicographers, means primarily to make known; to make manifest; to make clear; to present in such a manner as to exemplify; to disclose; to reveal. The testator in this case, within the meaning of the statute, has declared a revocation of his former will by impliedly saying in every clause thereof that the will he was then executing was his will and his complete and only will. It was not necessary to use express words in terms declaring such revocation. The statute makes no such requirement.” (Emphasis added.)

In the case before us not only did the testator make a codicil that was entirely inconsistent with anything but a revival of the 1961 will, but he also concluded by writing, “I hereby confirm my said Will in all other respects.” Language could not be more explicit. This was the making of a new will wholly inconsistent with the prior 1964 will.

It is a cardinal rule in the construction of wills that the primary objective is to give effect to the testator’s intention. Weber v. Hawkins, 30 Ill2d 278, 196 NE2d 695, 698; Carr v. Hermann, 16 Ill2d 624, 158 NE2d 770, 772; Glaser v. Chicago Title & Trust Co., 393 Ill 447, 66 NE2d 410, 414. The 1965 codicil revived the 1961 will, and the revival of the 1961 will republishes it as of the date of the codicil. Dunn v. Kearney, 288 Ill 49, 123 NE 105, 107; Hobart v. Hobart, 58 Ill App 133, 135, affirmed 154 Ill 610, 39 NE 581. Hence it is in effect a later will totally inconsistent with the 1964 will, and therefore it revokes that will. Ill Rev Stats, c 3, § 46 (1965).

The judgment is reversed and the cause remanded with directions to admit to probate the 1961 will and the codicil thereto and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    Thornton B. Stearns and Diane C. Stearns, His Wife, Plaintiffs-Appellants, v. Clara Western and Cedric Western, Her Husband, Defendants-Appellees.
    Gen. No. M-51,246.
    First District, Third Division.
    October 13, 1967.

      Joseph L. Mack, of Chicago (Richard F. McPartlin, of counsel), for appellants.
    William D. Ambrose, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiffs appeal from a judgment entered in favor of the defendants in an action to recover an earnest money deposit of $1,000 made by the plaintiffs with the defendants under a contract for the purchase of real estate. The case was tried before the court without a jury. The facts are these.

On September 12, 1964, plaintiffs and defendants entered into a written contract whereby the plaintiffs agreed to purchase from the defendants, property located at 1814 Main Street, Evanston, Illinois, for the price of $21,500. A deposit of $1,000 was given by plaintiffs to defendants, pursuant to the contract. The contract was partly handwritten and partly printed, and was labeled “Offer to Buy Real Estate.” The Offer to Buy Real Estate provided in part as follows:

“Cash to be paid on closing of deal $20,500.00
“Balance to be paid as follows: $3,500.00 cash, and balance from proceeds of 1st mtge. to be obtained by purchaser.”

In longhand the contract contained the following:

“This contract is subject to purchaser or seller to obtain a 1st mtge. loan in the amount of $17,000 at interest rate not to exceed 5% % for a period not less than 20 years. If such loan cannot be obtained within 10 days from date hereof the earnest money is to be returned to the purchaser and this contract will be null and void.”

In the printed portion of the Offer to Buy Eeal Estate there appeared the following sentence:

“But if the undersigned defaults in this contract, the deposit is at your option to be forfeited, as liquidated damages, first paying the real estate broker’s commission and expenses incurred, and rendering the balance to you, and the contract shall become null and void.”

No real estate broker was involved in this transaction. Clara Western held title and was the wife of Cedric Western. The plaintiff, Thornton Stearns, was advised by Cedric Western of an existing mortgage on the property held by the First Federal Savings and Loan Association of Wilmette, and that that association had appraised it for maximum mortgage purposes. Thornton Stearns, the plaintiff, contacted the First Federal Savings and Loan Association of Wilmette two days after the signing of the contract and sought a $17,000 mortgage at the rate of 5%% for 20 years. This application was rejected by that savings and loan association. Mr. Stearns then made a written application to the Bell Savings and Loan Association for a $17,000 mortgage loan on the property, but that association, likewise, rejected the application. Cedric Western then advised Thornton Stearns to try First National Bank and Trust Company of Evanston. Application was made at that bank by Stearns and the loan was refused. Stearns then called the defendant, Cedric Western, on the Friday following the date of the contract and advised him that he (Stearns) had been turned down three times and was unable to get the mortgage funds. On September 22, 1964, being ten days after the execution of the agreement, Stearns wrote a letter to the defendants advising them that the plaintiffs were unable to obtain a $17,000 mortgage loan and that the contract was, by its terms, null and void. He also advised the defendants they were at liberty to deal with anyone else and requested the return of the earnest money deposited. At approximately 1:00 p. m. on September 22, 1964, after the plaintiff Stearns had mailed the above letter requesting the return of the deposit money, the defendant, Cedric Western, delivered to Mr. Stearns the following letter:

“5710 N. Western Ave., Chicago 45, Illinois.
September 21,1964
Mr. Thornton B. Stearns,
7731N. Marshfield,
Chicago 26, Illinois.
Dear Mr. Stearns:
Property: 1814 Main Street, Evanston, Illinois.
I hereby offer you a mortgage loan on the following terms:
1. Amount: $17,000.00.
2. Interest rate: 5%% (five and three-quarters percent) .
3. Terms: 20 years.
4. Principal and interest: $119.36.
5. Prepayment privilege: 5 % penalty on sum paid in excess of normal principal installments during first five years: 2% penalty on sum paid in excess of normal principal installments thereafter.
6. $40.00 to be deposited with monthly mortgage payment for real estate taxes.
7. Hazard insurance policy for at least $17,000.00 for fire and wind storm damage will be required at time of closing with a mortgage clause to Cedric Western.
8. Subject to a closing cost of 1 %.
This commitment will remain outstanding for a period of ten days from this date.
Yours faithfully,
/s/ CEDRIC WESTERN,
CEDRIC WESTERN.”

Stearns told Western that the offer of a mortgage as set forth in the foregoing letter was unacceptable. On September 23, 1964, the defendant, Clara Western, mailed a letter to Mr. Stearns offering to deliver to him a Torrens Certificate for the property and to complete the remaining obligations imposed upon her under the agreement, and requesting specific performance of the agreement. Thereafter, on October 2, 1964, Clara Western addressed another letter to Mr. Stearns, stating, in part, the following: “I have elected to consider your deposit of $1,000.00 to be forfeited as liquidated damages due to your default.”

The record discloses that on October 19, 1964, the defendants executed a Deed of Sale to the premises involved to another party. Affixed to that deed was $24.20 in Revenue Stamps, indicating a sale price of $22,000. However, Mr. Western testified he did not remember exactly how much was received for the sale of the property.

The defendant, Cedric Western, testified that on the Monday prior to the expiration of the ten-day period, Mr. Stearns advised him that he could only get a $16,400 mortgage; that Stearns asked Western if he knew Negroes were within 3y% blocks of the property, and that he didn’t want the house at any price.

Mr. Stearns admitted that at one time he stated he would not purchase the property because of Negroes living in the neighborhood. This statement, however, was made after he was rejected by three mortgage houses. Mr. Stearns also testified that when he was asked by Mr. Western if he would comply with the contract he stated he would if he could obtain financing, even though it necessitated putting the property back on the market the following day.

The plaintiffs contend, (1) since the mortgage loan was not obtained, pursuant to the provisions of the contract, the contract became void and unenforceable, and plaintiffs are therefore entitled to a refund of their earnest money, and (2) defendants having elected to require specific performance of the contract with the plaintiffs, are estopped to inconsistently elect to retain the earnest money as liquidated damages.

The offer made by the plaintiffs and accepted by the defendants expressly provided that the sale of the premises was subject to the condition that a mortgage loan in the amount of $17,000 at an interest rate of not to exceed 5%%, for a period of not less than 20 years, be obtained within ten days from the date of the contract, otherwise the earnest money was to be returned to the purchaser. The sale price under the agreement was $21,500. A $1,000 deposit was made with the balance of $20,500 to be paid in cash at the time of closing. $3,500 of the cash was to be paid by the purchaser and the remaining $17,000 to be paid from the proceeds of the first mortgage to be obtained by purchaser.

Under the agreement between the parties there can be no doubt that the financing of the sale was to be obtained from an outside mortgage house, and it was not contemplated that a purchase money mortgage would be given.

In Garlete v. Rodriguez (La), 126 So2d 182 (1961), a purchaser had agreed to buy the property subject to his ability to obtain a loan from a homestead building and loan association, because he wanted the benefit of their appraisal, and other benefits. The court on page 184 said the following:

“Any one having experience with the purpose and operation of such associations knows full well that they are organized to promote thrift and home-owning; are very paternalistic in seeing that real estate taxes and insurance premiums are paid, and less harsh in defaulting their borrowers than private lenders. Furthermore, such associations usually retain their vendor’s lien and mortgages for the full period, while private lenders often find it convenient to dispose of the mortgage and possibly submit the borrower to the whim or caprice of an unexpected and unwanted creditor.”

In this case the defendant Western, in making his proposal of a mortgage loan, did not conform to the terms of the contract. His proposal of September 21, 1964, contained eight conditions. The first three, being the amount $17,000, the interest rate of 5%%, and the term 20 years, only conformed to the contract. The five additional conditions were the following:

“4. Principal and interest: $119.36.
“5. Prepayment privilege: 5% penalty on sum paid in excess of normal principal instalments during first five years; 2% penalty on sum paid in excess of normal principal instalments thereafter.
“6. $40.00 to be deposited with monthly mortgage payment for real estate taxes.
“7. Hazard insurance policy for at least $17,000.-00 for fire and wind storm damage will be required at time of closing with a mortgage clause to Cedric Western.
“8. Subject to a closing cost of 1 %.
This commitment will remain outstanding for a period of ten days from this date.”

The offer of defendants to make a mortgage, which would be a purchase money mortgage, was contrary to the provisions of the contract, which provided for a cash payment at the time of the closing. This cash payment was to be made by the purchasers partially from a mortgage of $17,000 to be obtained, and the balance to be supplied by the purchasers.

There is nothing in the record to indicate that the sellers would be acceptable as the owners of a mortgage on the property to be acquired by the purchasers. In addition to this, the sellers would not be receiving cash for $17,000 of the purchase price as the contract provided. The additional conditions set forth in the counteroffer made by the defendant Western were not shown to be matters of custom and usage. The existence of custom and usage must be proved as any other matter of fact. Katz v. Brooks, 65 Ill App2d 155, 212 NE2d 508. The plaintiff, on the other hand, testified that many loans are not amortized, and that the principal becomes due on a fixed date; that savings and loan associations do not generally charge a penalty clause for prepayment; that a monthly deposit for real estate taxes varies from one mortgage house to another, and that Evanston Trust and Savings Bank charges no closing cost.

The foregoing uncontradicted evidence therefore showed that the conditions imposed by the counteroffer of the sellers were not matters of trade custom or usage.

In Morris v. Goldthorp, 390 Ill 186, 60 NE2d 857, the owner of real estate had agreed to give to Morris what was described as an exclusive sale of certain real estate, together with the privilege extended to Morris of purchasing the property if he so desired. The option contained no provision as to the character of the deed by which the property was to be conveyed. Morris thereafter wrote to the owners to the effect that he had decided to exercise his option to purchase, and sent a warranty deed inserting the name of a nominee as grantee, which warranty deed was to be acknowledged before a notary public. The court on page 194 said:

“Appellees further contend that the offer contained in the option was not accepted by appellant in accordance with its terms. As already indicated, the option constituted an offer for the sale of the property upon the terms therein prescribed. Nothing is said in the option as to the character of the deed by which the property is to be conveyed. That being true, the option, if properly accepted, entitled the purchaser to a conveyance which would vest in him unincumbered fee-simple title, except in so far as a less estate was specified in the option. (Cases cited.) In order to convey fee-simple title, it is not necessary that the conveyance be by warranty deed. A quitclaim deed is equally as effectual to pass title as a warranty deed with full covenants.”

The court continued on page 195:

“It is elementary that where one party gives an option to another, the acceptance, to be valid so as to conclude an agreement or contract between the parties, must, in every respect, meet and correspond with the offer, neither falling short of, nor going beyond, the terms proposed, but exactly meeting them at all points and closing with them just as they stand. (Cases cited.) ”

The case of Department of Public Works and Buildings v. Halls, 35 Ill2d 283, 220 NE2d 167, involved the question of whether the lessee of a parcel of land properly exercised an option to purchase the leased premises. Under the terms of the lease the lessee was given the right and option to purchase the premises for the sum of $25,000 at any time during the term. In an effort to exercise the option the lessee notified the owner that he had elected to exercise the option, and also that the abstract should be submitted to his attorney for examination, and that the purchase price would be available upon the furnishing of a merchantable abstract of title and warranty deed. There was no reference in the option to an abstract of title or a warranty deed. The court on page 285 said:

“The purported acceptance of the option concluded with the statement: ‘The abstract should be submitted to my attorney, (naming him), for examination, and the purchase price will be available upon the furnishing of a merchantable abstract of title and warranty deed.’ (Emphasis added.) This language indicates a clear intent which is that the purchase price would be paid when an abstract showing merchantable title and a warranty deed were delivered. There was not the slightest indication in the option of an agreement to do any of these things, and there was no obligation on the lessor to do them unless he specifically agreed to. The so-called acceptance was not in accord with the offer — it was not unequivocal — it added entirely new conditions, and it constituted a counteroffer requiring acceptance by the lessor before any contract came into being. Since it was not so accepted, there never was an effective exercise of the option.”

The defendants contend that a contract must be construed most strongly against the party who prepared the contract where the words are ambiguous or of doubtful construction, and that where possible a contract will be construed so it will uphold its validity. In support of this argument the defendants state that the blank spaces on the printed form of Offer to Buy Real Estate were filled in by one of the plaintiffs, Thornton B. Stearns; that Mr. Stearns was in the real estate business and had been for years; that he had a great deal of experience in the preparation and handling of real estate contracts, while the defendants had been involved in only one previous real estate transaction. There was no attorney present representing either party at the time the contract was drawn up.

Defendants cite authority for the proposition that where words in a contract are ambiguous or of doubtful construction, they are to be construed most strongly against the party who prepared the contract, for the reason that he chose the language. The defendants, however, fail to point out any words in the contract before us which are ambiguous or of doubtful construction. The defendants also cite authority for the proposition that contracts must be construed to give effect to the intention of the parties as expressed in the agreement, and to this end the contract shall be construed as a whole, giving effect to every portion of the instrument and preferring the construction which renders the agreement legal rather than void. As we understand this case, the plaintiffs do not contend for a construction of the contract which would render it void. It is plaintiffs’ contention that the clear language expressed in the agreement was not complied with by the defendants.

Defendants also argue that the real reason that the plaintiffs refused to go ahead with this contract was that Mr. Stearns found out that there were Negroes 31/2 blocks from the property in question. This contention is not borne out by the record. Mr. Stearns testified that he would have gone through with the contract if he had been able to get a mortgage pursuant to the terms of the contract, even though he might have placed the property on the market the next day. Furthermore, the feelings of Mr. Stearns regarding the residence of Negroes in the neighborhood are completely unimportant in the determination of the issues in this case.

Mr. Stearns was unable to get a mortgage from three different lending institutions, and the offer of a mortgage made by the defendants was a counterproposal which was not accepted by the plaintiffs because that counterproposal contained conditions other than those set forth in the Offer to Buy Real Estate. The defendants were in no position to bind the plaintiffs by making a counteroffer which did not comply with the original contract. Indeed, the counterproposal of the defendants read in part as follows: “I hereby offer you a mortgage loan on the following terms: . . . This commitment will remain outstanding for a period of ten days from this date.” The defendants knew from the very wording of their counteroffer that it was in conformity with the contract, for if it were, it would have been unnecessary to consider it as an offer which would have to be accepted, nor would it be necessary to have that offer remain outstanding for a period of ten days if it was in compliance with the original contract.

Since we conclude that the terms of the contract were not met by the defendants we deem it unnecessary to consider the other point raised by the plaintiffs. The judgment of the trial court is reversed and the cause is remanded to the trial court with directions to the trial court to enter judgment for the plaintiffs in the sum of $1,000.

Reversed and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE DEMPSEY

text:
    Delima Vincent, Plaintiff-Appellant, v. Casmir W. Wesolowski, Defendant-Appellee.
    Gen. No. 51,788.
    First District, Third Division.
    October 13, 1967.

      Samuel E. and Bruce Bublick, of Chicago, and Crowley, Sprecher, Barrett & Karaba, of Chicago (Robert A. Sprecher, of counsel), for appellant.
    Vaccarello, Harrington and Petrucelli, of Chicago (Mel E. C. Perretti, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

In this personal injury action the plaintiff appeals from a judgment entered upon a jury finding for the defendant. The principal issues are whether: (1) certain statements in the defendant’s pretrial deposition were judicial admissions which required the trial court to direct a verdict for the plaintiff or to enter judgment n. o. v. for her, (2) the verdict was against the manifest weight of the evidence, (3) the trial court erred in instructing the jury and (4) the court erred in limiting the closing argument of the plaintiff’s attorney.

On June 6, 1964, the plaintiff, Delima Vincent, was riding in the rear seat of an automobile driven by her sister, Alma Mueller. The vehicle was headed north on Colfax Avenue and Mrs. Mueller intended to turn left on 95th Street. She testified that: Colfax has two lanes for northbound traffic and two for southbound; her vehicle was in the lane near the center of the street from the time she crossed 106th Street until the collision occurred; a half block from 95th Street she signaled her intention to turn; just as she came to 95th Street the traffic control light changed from red to green and she drove up closer to the middle of the intersection; she stopped to allow southbound traffic to pass and several seconds later the defendant’s vehicle struck the left rear and side of her automobile. Her testimony was corroborated by the plaintiff.

The defendant’s version of the accident was substantially different. He testified that: he was driving north on Colfax; the traffic light was green as he approached 95th Street; his vehicle was in the lane near the center of the street and the Mueller automobile was next to the curb and two car lengths ahead; without signaling, Mrs. Mueller made a sudden left-hand turn; he applied his brakes and swerved to the left and the right front and side of his automobile made contact with the Mueller vehicle.

The plaintiff’s first contention is that five statements made by the defendant in a pretrial deposition were judicial admissions which contradicted his trial testimony and necessitated a judgment for her. The statements concerned the speed of the defendant’s vehicle, the positions of the two vehicles before and after the accident and the damage to the vehicle in which the plaintiff was riding.

A judicial admission is an admission made in the course of a judicial proceeding. See Rosbottom v. Hensley, 61 Ill App2d 198, 209 NE2d 655 (1965) and Cleary, Handbook of Illinois Evidence, §§ 5.1 and 17.12 (2nd ed 1963). It is evidence against the party making it and substitutes for proof of the facts admitted. Bartolomucci v. Clarke, 60 Ill App2d 229, 208 NE2d 616 (1965). It is made by a party’s deliberate testimony to a concrete fact within his peculiar knowledge; it must be a considered circumstance of the case, not a matter of speculation, inference or opinion. Gauchas v. Chicago Transit Authority, 57 Ill App2d 396, 206 NE2d 752 (1965). What constitutes a judicial admission must be decided under the circumstances of each case (Hurley v. Phillips, 54 Ill App2d 386, 203 NE2d 431 (1964)) and before a statement can be held to be such an admission it must be given a meaning consistent with the context in which it is found and must be considered in relation to the other testimony and evidence presented. McCormack v. Haan, 20 Ill2d 75, 169 NE2d 239 (1960); Gauchas v. Chicago Transit Authority, supra.

The first statement said to be a judicial admission related to the speed of the defendant’s automobile at the time of the collision. He testified that both cars were going about 15 to 20 miles an hour as they came to 95th Street. The alleged admission followed this series of questions and answers in his pretrial deposition:

Plaintiff’s attorney: “How fast was your car moving at the time of the impact?”
Defendant: “That is hard to tell.”
Plaintiff’s attorney: “Well, what would be your best estimate as to your speed at the time of the impact ?”
Defendant’s attorney: “If you can estimate?”
Defendant: “Well, we had the green light, I had the right of way to go straight through, there was nothing in my way.”
Plaintiff’s attorney: “How fast were you going?”
Defendant’s attorney: “Twenty-five miles an hour, about.”
Plaintiff’s attorney: “At the time that the impact took place ?”
Defendant: “Yes.”
Plaintiff’s attorney: “Twenty-five miles an hour ?”
Defendant: “Thirty miles an hour.”

The defendant’s first two responses did not specify how fast he was going, and it was only at the insistence of the plaintiff’s attorney that he estimated his speed. Having been asked to estimate his speed, he did not purport to speak with certitude, and his answer cannot be deemed to be a binding admission.

The second statement concerned the position of the two vehicles prior to the crash. In his deposition the defendant, in response to the question whether he saw the Mueller automobile at any time before the impact, said:

“I noticed . . . [Mrs. Mueller’s automobile] on 100th Street, and I was on the curb side going north, she was on the inside, like you say, the yellow line, the inside.”

At the trial he testified that when he first saw the Mueller vehicle it was in the lane next to the curb and his automobile was in the inside northbound lane. These two statements are not necessarily inconsistent. They become contradictory only if it is assumed that the deposition statement and the trial statement both described the first time the defendant saw the vehicle in which the plaintiff was riding. There is no basis in the record for making this assumption. Moreover, the defendant testified that Mrs. Mueller was cutting in and out as she proceeded northward.

At the trial the defendant further testified that his vehicle was in the center lane and the Mueller vehicle was in the curb lane at the time of the collision. (This testimony is different from the deposition statement; but since the statement in the deposition referred to the position of the vehicles five blocks from the site of the accident, it cannot be considered an admission of facts material to the defense.) Hence, it cannot be a judicial admission which, by itself, barred the defense.

The third statement was in reference to the direction his car was facing at the moment of the impact. In his deposition he stated that it was facing north; at the trial he stated that it was “partly northwest.” According to the testimony the defendant was driving north and just before the accident turned to the left, so he was facing somewhat west of north at the time of the collision. His statement at the deposition and his statement at the trial were not materially discrepant and the former was not a conclusive bar to his defense.

In the next statement claimed to be a judicial admission the defendant described the position of the Mueller vehicle at the time of the collision. This statement did not involve a fact peculiarly within the defendant’s own knowledge. It was not a judicial admission. Tennes v. Tennes, 320 Ill App 19, 50 NE2d 132 (1943).

In the last of the pretrial statements which the plaintiff submits as judicial admissions, the defendant said that he did not notice any damage to the Mueller auto. At the trial he stated that the right front of his car made contact with Mrs. Mueller’s auto and that her damage “was on the left side only, I believe there was the headlight — the taillight, I mean.” Upon cross-examination he stated he “didn’t see any damage, . ,. . didn’t notice any damage on the car, only the taillight was broken on there.” The apparent inconsistency in his deposition and trial statements was due to his restricted use of the word “damage”; he apparently did not think that a broken taillight, in comparison to the $350 repair bill for his own car, was serious enough to be called damage. His equivocal deposition statement cannot be elevated to the stature of a judicial admission.

Since none of these statements rendered ineffectual the defense presented at the trial, the motion for a directed verdict was properly denied. Gauchas v. Chicago Transit Authority, supra. See Mesich v. Austin, 70 Ill App2d 334, 217 NE2d 574 (1966); Tarzian v. West Bend Mut. Fire Ins. Co., 74 Ill App2d 314, 221 NE2d 293 (1966). Similarly, the motion for judgment notwithstanding the verdict was also denied properly. See Davis v. Oettle, 43 Ill App2d 149, 193 NE2d 111 (1963); Hughes v. New York Cent. System, 20 Ill App2d 224, 155 NE2d 809 (1959).

The second issue on appeal is that the verdict is against the manifest weight of the evidence. A verdict is contrary to the manifest weight of the evidence when an opposite conclusion is clearly evident. LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188, 208 NE2d 845 (1965). Because the evidence was conflicting and disputed questions of fact were presented, determination of the truth depended upon the jury’s evaluation of the credibility of the witnesses. A review of the evidence discloses ample support for its decision.

The third and fourth issues involve alleged errors of the trial court in refusing to give certain instructions tendered by the plaintiff.

The complaint charged the defendant with four specific acts of negligence: failing to keep a proper lookout, failing to apply the brakes, following too closely the automobile in which the plaintiff was a passenger and speeding. The plaintiff offered an instruction which submitted these four questions to the jury, but the court sustained an objection to the first, improper lookout. The court also sustained an objection to the fourth question, speeding, refused to inform the jury about a statute prohibiting excessive speed and sustained an objection to comments about the speed of the defendant’s automobile. Finally, the trial court refused to instruct the jury that as a matter of law the plaintiff was in the exercise of due care and caution for her own safety.

A party to a lawsuit has the right to have the jury instructed upon his theory of the case when there are pleadings and evidence which support his theory. Marcum v. Daugherty, 35 Ill App2d 9, 181 NE2d 830 (1962). However, an instruction should never open the possibility that a jury could make a finding of fact where the finding would not be substantiated by the evidence, Hedge v. Midwest Contractors Equipment Co., Inc., 58 Ill App2d 365, 202 NE2d 869 (1964). It is error to give an instruction not based on evidence adduced at the trial. McClean v. Chicago Great Western Ry. Co., 3 Ill App2d 235,121 NE2d 337 (1954).

Mrs. Mueller and the plaintiff both testified that they saw the defendant’s vehicle a half block away and that it continued two or three car lengths behind them as their automobile approached the intersection where the accident took place. The defendant stated in his deposition that he observed their automobile five blocks before the accident and testified at the trial that their vehicle was about two car lengths ahead of his within a half block from the intersection. He saw their automobile as it came to the corner and began to turn; he applied his brakes and “cut out left” in an attempt to avoid the collision. This evidence indicates that the defendant was in a position to and was in fact watching for other automobiles. There is no direct evidence to the contrary, and in light of the testimony of the parties the accident itself is not circumstantial evidence of a failure to keep a proper lookout. Thus, the refusal to submit this as an issue for the jury’s decision was not error. Wells & French Co. v. Novak, 73 Ill App 403 (1898).

Neither the plaintiff nor Mrs. Mueller testified to the speed of the defendant’s vehicle. The defendant testified that the speed limit on Colfax was 30 miles per hour and that when he came to the corner of 95th Street his speed was 15 or 20 miles per hour. Mrs. Mueller stated that as a result of the impact her auto might have budged a little. When this evidence is considered with all the other testimony in the case, including the testimony of the plaintiff that the defendant’s car followed two or three car lengths behind her sister’s auto for a half a block without overtaking it until it stopped, it is apparent that the defendant was not driving at an unreasonable speed. The evidence was such that the court did not err in refusing to allow the jury to pass upon the question of speed. McCormick Harvesting Mach. Co. v. Robinson, 60 Ill App 253 (1895). Likewise, there was no error in the court’s refusal to give an instruction based upon the statute prohibiting unreasonable speed, Moss v. Wingo, 47 Ill App2d 138, 197 NE2d 848 (1964). And, since the question of excessive speed was not submitted to the jury, the court properly limited the closing argument to the questions at issue. Anderson v. Chicago, R. I. & P. R. Co., 243 Ill App 337 (1926).

The jury was instructed that Mrs. Mueller’s negligence could not be charged to the plaintiff and that the care required of her was that which a reasonably careful person riding as a passenger would use under similar circumstances. A peremptory instruction authorized the jury to find for the plaintiff if the defendant was negligent, the plaintiff was injured by the defendant’s negligence and the defendant’s negligence was a proximate cause of the injury. Freedom from contributory negligence was not made essential to her right to recover. Since the defendant did not by evidence, argument or instructions make an issue of contributory negligence, the plaintiff was not harmed by the court’s refusal to give the requested instruction on due care tendered by the plaintiff. See Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529 (1963).

The judgment of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    In the Matter of the Petition of Merwyn Berkowitz and Marilyn S. Berkowitz, His Wife, To Adopt Baby Boy Spetter, a Minor.
    Gen. No. 51,605. (Abstract of Decision.)
    First District, Third Division.
    October 19, 1967.
    Norman S. Rothbart, of Chicago (Irving S. Abrams, of counsel), for appellants; Edward J. McGinnis, guardian ad litem of Baby Boy Spetter, appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


text:
    Edward J. Sesterhenn, Jean Sesterhenn and John Sesterhenn, a Minor, by Edward J. Sesterhenn, His Father and Next Friend, Plaintiffs-Appellees, v. Ruth B. Saxe, Defendant-Appellant, and Arthur Bladowski, Defendant-Appellee.
    Gen. No. 50,853.
    First District, Third Division.
    October 19, 1967.
    Rehearing denied December 7,1967.

      Tom L. Yates and John T. Burke, of Chicago (J. L. Locke and Carl E. Abrahamson, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Francis B. Libbe and John M. O’Connor, Jr., of counsel), and Theodore L. Forsberg, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a personal injury suit involving a number of automobiles, the jury returned verdicts for the plaintiffs and against the defendant Ruth Saxe in the sum of $8,000 for Jean Sesterhenn, $1,500 for Edward J. Sesterhenn and $10 for John Sesterhenn. Judgment was entered on the verdicts. On a cross claim by defendant Saxe against defendant Bladowski, the jury returned no verdict, but the court entered judgment nevertheless in favor of Bladowski for reasons which we will later consider. An appeal was taken by defendant Saxe. The facts follow.

Plaintiff Jean Sesterhenn was driving an automobile in a northerly direction in the outside lane of a four-lane highway, Route 45, in Cook County. The posted speed limit was 65 miles an hour. Her husband Edward and her son John were with her. Defendant Ruth Saxe was driving her car in the opposite direction in the inside lane and undertook to pass a car driven by Laverne Davis. Approximately three car lengths ahead of the Davis car in the outside lane was a car driven by the other defendant Arthur Bladowski. It was raining and Bladowski swerved his car toward the inside lane to avoid splashing a Catholic nun who was standing alongside the road. This, it appears, caused Mrs. Saxe to apply her brakes. The pavement was wet and the Saxe car skidded out of control across the center line and into oncoming traffic, where it struck the Sesterhenn car. Conflicting evidence was presented at the trial regarding the relative positions of the vehicles, the speed of the Saxe car, and the distance Bladowski swerved to avoid splashing the pedestrian. The parties agree however that only two vehicles made contact.

Mrs. Saxe testified that she was going 40 miles an hour and that the front bumper of her car was even with the rear bumper of Bladowski’s car when Bladowski swerved several feet across the line which divided his lane from hers. Laverne Davis, a witness called by Saxe, testified on cross-examination that he had no idea how fast he was traveling at the time of the accident and that he had no idea how fast the Saxe car was traveling. He admits however that he had made a written statement shortly after the accident in which he estimated his speed at 55 to 60 miles an hour when Mrs. Saxe was passing him.

Defendant Saxe first contends that it was error for the court to allow a diagram which was not in evidence to be exhibited to the jury without showing the jury the writing beneath the diagram. Davis prepared the document about 3 weeks after the accident at the request of plaintiffs’ attorney. In addition to answering the questions on the form, he sketched a diagram of the accident on the back of the report. The diagram and description are reproduced as follows:

“Cars A & B were proceeding south toward Des Plaines, Car C was passing Car A and was about to pass Car B when Car B swung over his line to miss a Catholic sister standing in the road. Car C to avoid hitting Car C [sic] cut her wheels to the left and apparently applied her brakes which threw her into a skid in front of approaching Car D.”

At the trial Davis testified as to the facts; that he was driving in the outer lane two or three car lengths behind the Bladowski car when the accident occurred and that the Saxe car had passed his car and was passing the Bladowski car when Bladowski moved to his left and Mrs. Saxe applied her brakes. In an effort to impeach Davis’s testimony as to the proximity of the Saxe car to the Bladowski car, counsel for Bladowski asked the witness to describe the diagram. The witness did so and admitted that in the diagram he placed the Saxe car next to his own about 8 car lengths behind Bladowski. There was no objection to this testimony and Davis was then excused. The matter did not arise again until the end of the trial when exhibits were being offered into evidence. At that time counsel for Bladowski offered the diagram that Davis had described, and the court refused to allow it in evidence. Counsel for Bladowski then asked the court if he could show the diagram to the jury since they had heard its contents. Counsel for Saxe objected unless the narrative was also shown. The court allowed the jury to see the diagram but not the narrative which was covered over. The court’s reason for so doing was that the witness had previously testified to everything contained therein. We will first consider defendant Saxe’s charge that this was error.

It is clear from the record that defendant Saxe passed Davis and was passing Bladowski when she lost control of her vehicle, swerved out of her lane and skidded across the center line and inside lane going the opposite direction into the outside lane where she struck plaintiffs’ car. All this occurred in a matter of seconds. The vehicles were traveling at speeds somewhere in the range of 40 to 65 miles an hour and their locations relative to each other were changing every instant. The ruling by the court could not have resulted in prejudice to the defendant Saxe. The narrative added nothing to the testimony of Davis and the diagram could act only as a limited aid to the jury from which they could discern the layout of the highway and the direction of the traffic. While it was error for the court to overrule defendant Saxe’s objection to the showing of the diagram unless the whole of it was admitted into evidence, we consider the court’s ruling to be harmless error. Kinsch v. Di Vito Const. Co. Inc., 54 Ill App2d 149, 203 NE2d 621, 626; Piechalak v. Liberty Trucking Co., 58 Ill App2d 289, 208 NE2d 379, 384; Adamaitis v. Hesser, 56 Ill App2d 349, 206 NE2d 811, 316.

Defendant Saxe’s second contention is that the damages awarded plaintiff Jean Sesterhenn were grossly excessive and that a remittitur should be ordered. Mrs. Sesterhenn was awarded $8,000 although her special damages were only $84. There was ample testimony however upon which a jury could base a finding that her injuries were permanent in nature. A specialist in orthopedic medicine examined the plaintiff in the courtroom 7 years after the accident and testified that she was suffering from the residual effects of a whiplash injury sustained in the accident, that the flexion of her neck was restricted 15 degrees, that the condition was permanent and that there was no form of therapy to relieve the discomfort.

The test of the propriety of the amount of damages awarded is not the amount of out of pocket expense, but whether or not the amount of the verdict falls within the limits of fair and reasonable compensation. O’Keefe v. Lithocolor Press, Inc., 49 Ill App2d 123, 199 NE2d 60, 67; Myers v. Nelson, 42 Ill App2d 475, 192 NE2d 403, 406; Barango v. Hedstrom Coal Co., 12 Ill App2d 118, 138 NE2d 829, 838. The jury’s verdict with respect to the amount of damages will not be disturbed unless it appears that it was the result of prejudice or passion. Ford v. Friel, 330 Ill App 136, 70 NE2d 626; Healy v. Nordhous, 40 Ill App2d 320, 188 NE2d 227, 230. There is no merit in Saxe’s second contention.

Her third contention is that during closing arguments statements were made by plaintiffs’ counsel which were outside the evidence and greatly prejudicial to the defendant. This contention is based on remarks made to the jury regarding the speed of the Saxe car and the fact that Mrs. Saxe was not sitting at the counsel table. In her motion for new trial, defendant Saxe did not specify with particularity the remarks regarding the speed of her car nor did she object to them at the time they were made. She is precluded from urging this as error on review. Ill Rev Stats, c 110, § 68.1(2) (1965). The objection made to comments as to where Mrs. Saxe was sitting during the trial is trivial. A jury trial has often.been compared to the unfolding of a stage drama. Both require conformity with many technical rules and procedures, but there is one great difference. A stage drama is produced after a long period of rehearsal and after each actor has learned to play his part correctly. No provision is made for such preliminary preparation before a jury trial and it inevitably follows that in every such trial of any consequence there will be some error. Plaintiffs in the instant case were injured 10 years ago and have not yet received a final determination of their rights. A reviewing court should require a new trial only when it appears there was substantial error. Remarks regarding where Mrs. Saxe sat during the trial, whether at the' counsel table or in the rear of the courtroom, can hardly warrant retrial of the case..

Defendant Saxe’s fourth contention is that the trial court erred in giving the following instruction over her objection:

“If you decide for the Plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them for any of the following elements of damage proved by the evidence to have resulted from the negligence of the Defendants:
“The nature, extent and duration of the injury;
“The disability and disfigurement resulting from the injury;
«
“The reasonable expense of necessary medical care, treatment and services received and the present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future.
(i ??

Defendant contends there was no evidence of disfigurement or need for future medical treatment in the case of Jean- Sesterhenn. The instruction was general in nature and was intended to instruct the jury with regard to compensation for injuries which might have been received by any of the plaintiffs. Plaintiff Edward Sester-henn was disfigured, thus making that portion of the instruction appropriate. As to the evidence of need for further medical treatment, a physician testified that physical therapy and medication might be necessary for temporary relief from pain. This is adequate to support this portion of the instruction.

Defendant Saxe also charges error in the failure of the trial court to give an instruction defining “cash value” which is referred to in the instruction on damages. She did not tender such an instruction to the trial judge and therefore cannot raise the failure to give the instruction as error here. Ill Rev Stats, c 110, § 67 (3) (1965).

The fifth contention made by defendant Saxe is that the trial court erred in entering judgment for defendant Bladowski on the cross claim after the jury returned both forms of verdict blank. Where, in a multiple-action trial, the jury returns a verdict on one action or claim that is silent as to the other actions submitted to them, the court will, if the manifest intention of the jury is sufficiently certain, make the verdict conform to that intention and carry their findings into effect as to the other action. Kinney v. Kraml Dairy, Inc., 20 Ill App2d 581, 156 NE2d 623, 628. In that case the jury had returned a verdict against three defendants, but failed to return any verdicts in a cross claim between the defendants. The trial judge entered judgment for the cross-defendants and this court upheld his action, stating it was implicit in the verdict that the jury was also finding the cross-defendants not guilty. In the instant case the issue of culpability for the accident was decided by the jury in favor of the Sesterhenns and against Mrs. Saxe only. Implicit in the verdict was a finding that Mrs. Saxe was negligent and that Bladowski was not. Because of the complexity of this case — eighteen verdict forms were submitted to the jury — it is not difficult to understand how the jury neglected to complete a verdict form for the cross claim. A finding of not guilty as to Bladowski on the cross claim is the only finding consistent with the verdict the jury returned. It was therefore proper for the court to enter judgment without resubmission to the jury.

. The last point made by defendant Saxe is that the court erred in refusing to allow the witness Davis to testify that he had made a prior written statement consistent with the testimony he gave on direct examination. She contends that after Davis was questioned on cross-examination regarding his meeting the previous day with Mrs. Saxe’s attorney, Davis should have been allowed to testify that he had previously made a written statement which was consistent with his testimony given on direct examination. The well settled rule is that prior consistent statements are not admissible to corroborate a witness’s testimony even after he has been impeached. Schmitt v. Chicago Transit Authority, 34 Ill App2d 67, 179 NE2d 839, 841. In support of her contention to the contrary the defendant Saxe cites Gates v. People, 14 Ill 433. In that case the court held that to contradict evidence tending to show that a witness’s account of a transaction was a fabrication of recent date, it may be shown that he gave a similar account prior to that time. Corroborative testimony is allowed in such a case as an exception to the general rule because it negates the possibility that the witness might have recently changed his testimony and it thus has an element of rehabilitation in it. The cross-examination in the instant case was directed toward showing Davis’s possible bias and not toward establishing that his testimony was a recent fabrication. We conclude that the trial judge ruled correctly in not allowing the prior consistent statements of Davis to be admitted to corroborate his testimony.

We find no reversible error in this record.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


text:
    Nancy J. Saviola, Plaintiff-Appellant, v. Sears, Roebuck and Company, Defendant-Appellee.
    Gen. No. 51,541.
    First District, Third Division.
    October 19, 1967.

      Fred Lambruschi, of Chicago (Herbert P. Veldenz and Vera Cuthbert, of counsel), for appellant.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Louis A. Lehr, Jr. and Paul L. Leeds, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal by plaintiff from a directed verdict entered in favor of defendant at the close of plaintiff’s case.

Plaintiff contends on appeal that the court erred in directing a verdict for defendant when plaintiff had presented sufficient evidence to create a question of fact for jury determination, and that the court erred in refusing to allow expert testimony regarding the use of pins in the packaging of men’s shirts.

The plaintiff, Nancy Saviola, testified that on September 24, 1959, she and her husband David entered the Sears store at North and Harlem Avenues in Chicago between 7:30 and 8:00 p. m. She was walking through the store when she felt severe pain in her ankle. She stated that at the time she was about two feet from a counter containing men’s white shirts. Some of the shirts were packaged and others were not. When she looked at her ankle she saw that a straight pin was imbedded therein. She saw no sales personnel or customers in the area.

According to Mrs. Saviola, her husband tried to remove the pin but was unable to do so until she was seated nearby and he was able to hold her leg with one hand and pull the pin out with the other. After the pin was removed she went to the Sears’ nurse’s office where the nurse treated it with Bactine and put a Band-Aid on it. Mrs. Saviola further testified to the extent of her pain and treatment therefor.

David Saviola’s testimony was similar to that of his wife. He added that several shirts on the counter were displayed and several were out of their packages and outstretched on the counter. There were no customers or salesmen around at the time. When he saw his wife grab her right leg he went to her aid, and when he stooped down to try to remove the pin he noticed bits of paper, dirt and about eight or ten straight pins on the floor at the place of the accident. Some of the pins were bent and looked as if they had been stepped on. He testified that he might have run through the pins to get to his wife. Later that night he examined the left shoe his wife had worn and found a small indentation or nick in the heel that looked as if it had been chipped away by stepping on some object.

Joseph Augelli, called by the plaintiff as an expert witness, testified that he had been in the men’s garment business for almost thirty-five years, and that he was presently employed by Baskin Clothing Company. He stated that he was familiar with the packaging of men’s shirts. The court sustained defendant’s objections to further questions put to the witness. Those questions were about the method used in packaging of men’s shirts. An offer of proof showed that Mr. Augelli would have testified that, depending on the manufacturer, men’s shirts are packaged with four to six pins and that those pins were of the same type as the one introduced as plaintiff’s Exhibit #8. That was allegedly the one that became imbedded in Mrs. Saviola’s ankle.

Anthony Ciaccio, called by the plaintiff as an adverse witness, testified that he was a department manager of men’s furnishings at the Sears store involved in this case. He had worked in that department for ten years and was familiar with the types of shirts sold there in September, 1959. The white shirts were packaged with pins in them and were displayed on counters. They also sold sport shirts and these had pins in them. He estimated that there were seven or eight pins in each shirt. He testified that sport shirts were displayed on the counter that plaintiff was next to when the accident occurred and that the actual display faced the next aisle.

Plaintiff also presented medical testimony regarding her injuries.

At the close of plaintiff’s case the court granted a motion by defendant for a directed verdict.

Plaintiff first contends that the court erred in directing a verdict for defendant when plaintiff had presented sufficient evidence to create a question of fact for jury determination. The theory of this contention is that there was evidence tending to show that the pin was on the floor for a long enough time to charge defendant with constructive notice of the situation.

There have been many cases involving business invitees who were injured in business establishments. The general rule is that the defendants owe a duty of exercising ordinary care in maintaining the premises in a reasonably safe condition for their invitees. (Olinger v. The Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 173 NE2d 443.) If a patron is injured by an accident involving a foreign substance on the premises and there is no showing of how that substance got there, liability may be imposed if it appears that the substance was there a sufficient length of time so that the owner or operator of the premises should have known of its presence. The proposition here applicable is set forth in the Olinger case, supra, at page 474:

“Where a business invitee is injured by slipping on a foreign substance on defendant’s premises, and there is evidence tending to show that defendant or his servants knew or should have known of its presence, the issue of negligence will be submitted to the jury.”

David Saviola testified that dirt and bits of paper were on the floor along with eight or ten pins. Some of the pins were bent and looked like they might have been stepped on. He testified that several shirts had been opened and outstretched on the counter. Both he and Nancy Saviola testified that there were no sales personnel or other customers in the area as they approached or when the accident occurred. This would tend to show that the pins were not dropped on the floor immediately prior to the accident. Furthermore, the bent condition of the pins might indicate that they had been there long enough to have been walked on.

The above testimony tended to indicate that the pins were on the floor for some time and that Sears, through its servants, had ample time to discover the presence of the pins before the accident and therefore had constructive notice of the unsafe condition of their premises. There was sufficient evidence to make this a question for jury determination and the granting of a directed verdict in such a situation was error.

Plaintiff also contends that the court erred in refusing to allow expert testimony regarding the use of pins in packaging of men’s shirts. The following occurred between the court and the parties’ attorneys:

“Q. Now, can you tell the ladies and gentlemen of the Jury how your men’s shirts are packed for sale?
“Mr. Lehr: If the Court please, I object to this question, I move that it should be limited to the shirts that have been shown in the testimony in this lawsuit.
“The Court: Objection sustained.
“Mr. Lambruschi: Q. Do you know the type of pins that are used to keep the men’s shirts together ?
“Mr. Lehr: Same objection.
“The Court: Objection sustained.”

There followed an offer of proof by plaintiff’s attorney. He stated that the witness would have testified that “the method in which shirts are handled and packaged, namely that depending on the manufacturer, the shirts vary from four to six pins, the type that are of Plaintiff’s Exhibit No. 8, (the alleged pin that caused the injury) that keep the shirts together. . . .” If the offer of proof had shown that the witness was qualified and had the witness been able to prove the custom of all shirt manufacturers, or the custom of manufacturer of shirts displayed by defendant, the testimony would have been admissible. There was, however, testimony by Anthony Ciaccio to the effect that there were pins in the packaged shirts sold by Sears at the time of the accident. Therefore, the exclusion of the expert testimony was harmless. The exclusion of evidence is harmless where such evidence was fully established by other evidence. (Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 208 NE2d 358.)

Because plaintiff submitted some evidence tending to charge Sears with constructive knowledge of the condition of the pins on the floor, the case should have been submitted to a jury. The directed verdict and judgment thereon are reversed and the cause is remanded.

Reversed and remanded.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    Herman Goebel, Plaintiff-Appellee, v. Benefit Trust Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 51,640.
    First District, Third Division.
    November 9, 1967.
    Rehearing denied December 7,1967.

      Donald C. Gancer, of Chicago, for appellant.
    James T. Mullaney, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order denying the section 72 petition of defendant, Benefit Trust Life Insurance Company, to vacate a default judgment in favor of plaintiff. The original complaint sought benefits allegedly due under certain hospital and medical expense policies issued by defendant to plaintiff. Defendant did not appear or answer prior to return day and, under the rule of the Circuit Court of Cook County relating to the Municipal Department, automatic default and judgment were entered.

The plaintiff, Herman Goebel, was insured through his employment under group hospital and group major medical expense insurance policies. Pursuant to conversion privileges provisions of the policies, plaintiff applied for individual policies. The group policies expired on January 27,1965.

The conversion privilege provided that if one’s employment is terminated he may, subject to the association’s regular underwriting rules, convert to an individual coverage if written application is made within thirty-one days from the date of termination of employment.

Goebel applied for this conversion and filled out an application therefor. The form contained the following questions and answers:

“12. Have you or any of your family ever had any of the following: . . . Cancer, diabetes, epilepsy, venereal disease ? No. . . .
“15. Have you or any of your family received any medical or surgical advice or treatment or had any local or conditional disease WITHIN THE LAST FIVE YEARS? No.”

The application was signed by Goebel and was dated January 22,1965.

Benefit Trust, in reliance on the truthfulness of the information in the application, issued individual policies of insurance to Goebel. The policies provided benefits for sickness or disease contracted after the policy had been in force for a period of thirty days. On January 28, 1965, Goebel entered a hospital for tests and later underwent surgery and allegedly incurred expenses in the amount of twenty-seven hundred dollars ($2,700).

In an investigation of plaintiff’s claim defendant discovered material false representations in the application which was attached to and made a part of the policies. The falsity was in the answers to the questions set forth above. Upon that discovery, Benefit Trust rescinded the individual policies, tendered to Goebel a refund of the premium paid, and denied his monetary claim.

On October 14, 1965, Goebel filed suit against Benefit Trust for the amount of the claim. Count I sought recovery under the group policies, and Count II relied upon the individual policies.

The summons issued showed service on defendant on November 6, 1965. On or about the same date the parties’ attorneys conferred by telephone and defendant’s attorney told plaintiff’s attorney that the case would be vigorously defended in court.

Defendant’s copies of the summons and complaint were misfiled in defendant’s attorney’s office. The summons showed a return day of November 15, 1965, but, as a result of the misfiling, the appearance and answer were not filed until November 23rd. A copy of that answer was served on plaintiff’s attorney.

On November 15th, under the rule of the Circuit Court of Cook County, relating to the Municipal Department, a judgment by default was entered in the amount of $2,700.

On January 13, 1966, defendant’s attorney examined the file in the case and discovered that a judgment by default had been entered. On January 18th he filed a motion to vacate that judgment. On February 9th, plaintiff filed a motion to dismiss the motion to vacate. On February 16th defendant filed a petition to vacate under section 72 of the Civil Practice Act. (Ill Rev Stats 1965, c 110, par 72.) The original motion to vacate was withdrawn on March 22nd. The petition to vacate was amended twice after being stricken on plaintiff’s motions to dismiss.

Plaintiff filed a motion to dismiss defendant’s second amended petition to vacate and therein alleged that defendant and its attorney were negligent in failing to file a timely answer, that no valid defense was shown and that the petition was the same as the previous ones which were stricken.

On June 30th, defendant’s second amended petition to vacate was denied. The court said that no good defense was set forth in the petition. Defendant appeals from that order.

Defendant contends on appeal that justice and fairness require the vacation of the default judgment because of; (1) the circumstances surrounding the entry of the judgment ; (2) the existence and showing of a meritorious defense to the action; (3) the showing of the exercise of reasonable diligence on the part of the defendant and its attorney; (4) the delay of more than thirty days by plaintiff in executing the judgment, and (5) the fact that plaintiff will not be prejudiced by a trial on the merits.

In determining the propriety of a denial of a section 72 petition to vacate we consider the surrounding circumstances and factors. The entry of the default was brought about by the Circuit Court of Cook County, Municipal Department, procedure. Due to the heavy caseload in that court it is a practice to automatically enter a default, and, if the damages are liquidated, a judgment thereon, if the appearance and answer have not been filed by the return day. This is an automatic procedure and does not even require an ex-parte prove up of plaintiff’s case, or notice to the defaulted party. The practice is governed by General Order No. 2 of the Circuit Court of Cook County relating to the Municipal Department which reads in part:

“a) In all contract, tort and distress for rent cases, the procedure shall be as follows:
“1) On return day, in all cases where service has been had and no appearance filed, a default shall be entered. Judgment may be entered in all cases where the amount is liquidated and the statement of claim sworn to, upon the filing of a military affidavit whenever required by law.”

Defendant now seeks relief from that judgment by petition under section 72 of the Civil Practice Act. The •purpose of such petition is to bring before the court matters of fact not in the record, which, if known at the time the judgment was entered, would have prevented the entry of the default. One such matter of fact is the existence of a valid defense which, without negligence on defendant’s part, was not made, having been prevented by excusable mistake. Glenn v. People of the State of Illinois, 9 Ill2d 335, 137 NE2d 336.

Defendant here asserts that a good and meritorious defense to the cause of action existed. In the second amended petition to vacate, defendant stated that a valid defense on the merits was set forth in the attached affidavits. The affidavits alleged that the group policies had expired the day before plaintiff entered the hospital, and that because the sickness or diseases for which plaintiff claims benefits were contracted before the policy had been in force for thirty days there was no coverage under the terms of the individual policies. The provision was that benefits would be paid for sickness or disease contracted after the policies had been in force for thirty days. It was further alleged that plaintiff had made material false representations in his application for the individual policies. These alleged falsities were that plaintiff denied that he had or ever had cancer or diabetes whereas he was suffering from such at the time, and plaintiff stated that he had not had medical or surgical advice or treatment within the last five years whereas he had consulted with his doctor within a month prior to the application.

It is to be noted that plaintiff filed no answer to the petition to vacate nor counteraffidavits to those of defendant, but rather filed only a motion to dismiss. Therefore, the facts well pleaded in the petition to vacate must be admitted as true. (Glenn v. People of the State of Illinois, supra; Stehman v. Reichhold Chemicals, Inc., 57 Ill App2d 40, 206 NE2d 299; Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348.) In our opinion the affidavits attached to the petition to vacate set forth sufficient facts to show a meritorious defense to the cause of action.

Defendant further claims that its failure to file a timely answer was indeed excusable mistake. It was a misfiling of the complaint and summons combined with the automatic default procedure of the Municipal Department which allowed the judgment. Defendant also points out that while he had no notice of the default until approximately two months after its rendition, plaintiff knew of it and yet failed to notify defendant. He points out that plaintiff was advised at the onset of the suit that defendant planned to vigorously defend the action in court and was served with a copy of the answer which was eight days late, and yet neither directly notified the defendant of the default nor took any steps toward execution of the judgment during the thirty day period within which defendant could more easily have had the default vacated.

Jansma Transp., Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829, discussed the considerations in ruling on a petition to vacate and stated on page 355:

“In arriving at our conclusions we have borne in mind the need for preserving the stability of judgments. On the other hand, the great increase in litigation in this country has placed such a burden on bailiffs and sheriffs that mistakes are bound to occur. It has also increased the number of defaults due to errors on the part of law clerks or lawyers. This has been evident in the large number of default cases which have come to us and to other courts of late. To mitigate that evil, cooperation within the profession is imperative.”

Furthermore, while there is no affirmative duty on plaintiff to inform defendant of the default and no requirement that execution be sued out within thirty days, these are factors which cast a cloud on the case. Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350.

The lateness of the answer in this case was due to a misfiling, a clerical error, an excusable mistake, not a lack of diligence on the part of defendant or its attorney. Only a few days after counsel discovered the existence of the default judgment he took steps to have it vacated. In our opinion this was sufficient to show due diligence on the part of defendant and its attorney.

Another requisite condition for the setting aside of a default judgment is that a trial on the merits will not prejudice plaintiff or result in a hardship on him. Defendant’s attorney, upon learning of the default judgment, took prompt action to bring the facts before the trial court and sought the vacation of the judgment. We believe this was not an unconscionable delay and a setting aside of the judgment will not prejudice plaintiff but will merely assure both parties a day in court for the fair determination of the merits of the case. Vosnos v. Wenzel, 44 Ill App2d 192, 194 NE2d 484.

We feel it was error for the trial court to deny defendant’s petition to vacate. Accordingly, the order denying the petition to vacate the judgment is reversed and the cause is remanded, with directions to vacate the default judgment.

Order reversed and cause remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.