author: SMITH, J.

text:
    Fay Polk, et al., Plaintiffs-Appellants, v. Harry L. Swartz, et al., and Unknown Owners, Defendants-Appellees, and Clarence T. Jackson, et al., Defendants-Appellants. Ross C. Swartz, et al., Counter-Plaintiffs-Appellees, v. Fay Polk, et al., Counter-Defendants-Appellants, and Harry Leo Swartz, a/k/a Harry L. Swartz, and Francis E. Swartz, et al., Unknown Owners and Unknown Parties Having an Interest in the Real Estate Known and Described as Follows: The Northeast Quarter of Section 34, Township 20 North, Range 5 East of the Third Principal Meridian in Piatt County, Illinois; and Harlow Stensel, As Executor of the Estate of Hattie E. McConnel, Deceased, Counter-Defendants-Appellees.
    Gen. No. 10,790.
    Fourth District.
    January 12, 1967.

      John D. Carson, of Urbana, and Philip C. Zimmerly and Lloyd S. Engert, of Champaign, for appellants.
    Robert P. Shonkwiler and Arnold Sievers, of Monticello, for appellees.
   SMITH, J.

The trial court construed the will of Jacob H. Swartz as vesting a remainder interest in fee in brothers and sisters or their successors and decreed partition accordingly. Appellants’ contention is that a defeasible interest was devised by the will and deeds made by two remainder-men were void, thus making the decretal distribution erroneous.

After providing for payment of debts and funeral expenses, the will read as follows:

“. . . Second: I give and bequeath to my wife Hattie E. Swartz all of my personal and real property said real property being the North East Quarter of Section Thirty-Four Township Twenty Range Five East, to have and to hold said personal and real property for her exclusive use and benefit during her natural life including all rents and profits to be derived from said estate.
“Third: I give and bequeath to my brothers and sisters, [naming them] the remainder of said real estate and so much of said personal estate as shall remain at the death of my wife Hattie E. Swartz, said remainder of my estate to be divided between them share and share alike, the child or children of them or either of them to inherit the share of its or their parent if deceased or in case of death of either of my said brothers or sisters without issue, then in that event, the survivors of them to share equally the portion such brother or sister would have if living.
“Fourth: I do hereby name and appoint my said wife Hattie E. Swartz — to be the sole executor of this last will and testament to serve as such without bond.
“I further say that the words ‘if deceased’ mentioned above were so written before the signing thereof . . .”

The chronology of events is as follows: The testator made his will on October 30, 1899, died August 3, 1913, and his will was admitted to probate September 11, 1913. Testator had no children. At the time of the execution of the will he had four living brothers and two living sisters as well as his wife. At the time of his death, one sister had died, without leaving children, either natural or adopted. The others all survived him and all had children. His widow lived until July 24, 1964. In this 50-year interim all brothers and sisters died leaving children. In 1917 one brother conveyed his interest. In 1940 a daughter of another brother conveyed her interest. It is these deeds that provide the focal point of this appeal. The trial court held that the fee simple interest vested in the four brothers and one sister who survived the testator subject to the widow’s life estate and that such interests “could be passed by deed, devise or by the Statute of Descent.”

Too well recognized to require authority are the propositions (a) that courts prefer an interpretation which vests remainders unless a contrary intention is adequately expressed, and (b) such intention must be found within the four corners of the will, if possible, and (c) if ambiguity or doubt exists rules of construction furnish the guidelines for ascertaining intent. The basic controversy here is whether the testator intended a vesting at the time of his death or a vesting at the time of the life tenant’s death. The creation of the life estate in the second paragraph has a more emphatic and mandatory ring than that normally used in creating a life estate. The language has a more dynamic ring than the words “for life,” “for and during her natural life” or “for so long as she shall live.” It leaves no room for doubt. It is for her “exclusive use and benefit . . . including all rents and profits to be derived from said estate.” It suggests that the testator unequivocally intended and declared that he would brook no interference with her use and enjoyment of her estate on the part of anyone. Such appears to be his clear intention. We can only assume that such language was carefully chosen.

In the first sentence of paragraph three, the testator clearly lumps the real and personal estate together in this language: “. . . the remainder of said real estate and so much of said personal estate as shall remain at the death of my wife . . . said remainder of my estate to be divided between them share and share alike.” It is thus clearly stated that the quantum of the property to be received by each brother and sister or their substitutes cannot be ascertained until the death of the wife. This seems a clear expression of intention that the quantum and the recipients should be ascertained and determined as of the wife’s death within the principles stated in Smith v. Shepard, 370 111 491, 19 NE2d 368. It is clear that the recipients and the quantum of the estate can only be determined and “divided between them share and share alike” at the time of her death. We conclude, therefore, that the brothers and sisters surviving the testator took vested remainders subject to divestiture upon death either with or without issue before the termination of the wife’s estate. The substitutionary gifts enter the picture whether the death of a brother or sister is with or without children as the case may be.

Appellees rely heavily upon Murphy v. Westhoff, 386 Ill 136, 53 NE2d 931, and Peadro v. Peadro, 400 Ill 482, 81 NE2d 192. The Supreme Court has commented on the two cases and their effect. In Phelps v. Seeley, 3 Ill2d 210, 215, 119 NE2d 923, 926, the court said:

“. . . The defendants rely upon Murphy v. Westhoff, 386 Ill 136, 53 NE2d 931, and Peadro v. Peadro, 400 Ill 482, 81 NE2d 192, as sustaining their position that the words of survivorship were used by the testator to refer to his own death rather than to the death of the life tenant. The recent case of Harris Trust & Savings Bank v. Jackson, 412 Ill 261, 106 NE2d 188, 192, specifically limited the two cases relied upon to their particular factual situations and reaffirmed the familiar rule stated in Burlet v. Bur-let, 246 Ill 563, 92 NE 965, and Smith v. Shepard, 370 Ill 491, 19 NE2d 368, that when a gift over is preceded by a particular estate, it will normally take effect if the contingency happens at any time before the termination of the particular estate. We added, ‘Therefore, unless a contrary intent appears from the language of the will, in cases where the gifts are substitutionary, “death” is referable to that point of time when the first gift takes effect in possession, and the first taker must survive to that time.’ 412 Ill 261, 269, 106 NE2d 188. Here, the ‘first takers’ are the three named sons and each must survive the death or remarriage of his mother, the life tenant, in order to take. The effect of our decision in the Jackson case has been correctly analyzed as follows: ‘From this language and from the Storkan case [Storkan v. Ziska, 406 Ill 259, 94 NE2d 185.] it may be concluded that the Murphy and Peadro cases need no longer be regarded as jeopardizing the integrity of the long established rule that upon a gift to one for life, followed by a gift in remainder, which is followed in turn by a gift over upon the “death” of one or more remaindermen, the word “death” is referable to a death at any time prior to the ending of the supporting estate.’ Carey and Schuyler, Illinois Law of Future Interests, Cumulative Pocket Part, (1954) p 182. . . .”

Commenting on the Phelps case in 50 Northwestern Law Review 505, the author criticizes Westhoff and Peadro and states that Jackson and Phelps readopted the rule of construction which has long prevailed before they were pronounced. We would point out that in Westhoff the court relied heavily on the words “in fee” to indicate an intention for immediate vesting in the remaindermen. In Peadro the words “to be their sole and absolute property” were relied on to provide a like intention for immediate vesting. There are no comparable words in the Swartz will. There is nothing to remove Swartz "from the operation of the general rule. The Supreme Court has restricted Westhoff and Peadro to their own particular facts. We must do likewise. We conclude, therefore, that the established rule is that upon a gift to one for life, followed by a gift in remainder, which is followed in turn by a gift over upon the death of one or more remaindermen, the word “death” or “if deceased” is referable to death at any time prior to the termination of the preceding or supporting estate. This appears to be the overwhelming authority in the United States. 65 Columbia L Rev 467. It follows that the brothers and sisters had a vested remainder subject to divesture upon death prior to the death of the life tenant. A brother or sister took under the will only if he or she survived the widow. None did. As each brother or sister died prior to the life tenant, his interest then vested in his children or their descendants per stirpes in equal shares.

Accordingly, the decree of the trial court is reversed and remanded for a determination of interest consonant with the views herein.expressed and for decree accordingly.

Reversed .and remanded with directions.

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


source: Caselaw Access Project

author: CRAVEN, P. J.

license: Public Domain

text:
    Mary Ellen Bellatti and Louis Marsden Bellatti, Plaintiffs-Appellants, v. Elmer Allspach, et al., Drainage Commissioners of Union Drainage District No. 1, Towns of Lanesville and Illiopolis, Sangamon County, Illinois, and Union Drainage District No. 1, Towns of Lanesville and Illiopolis, Sangamon County, Illinois, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 10,741.
    Fourth District.
    January 12, 1967.
    Rehearing denied February 6, 1967.

      Londrigan & Londrigan, of Springfield (James T. Londrigan, of counsel), for appellants.
    Armstrong, Winters, Prince & Tenney, of Decatur (Thomas H. Armstrong and Harold F. Tenney, of counsel) , for appellees.
   CRAVEN, P. J.

Plaintiffs appeal from denial of equitable relief by the trial court. Plaintiffs sought a mandatory injunction requiring the defendants to repair a breach in a 27-inch tile. The breached tile is a part of a former sewer system constructed by the United States Government at the time it owned all the land, including the plaintiffs’, through which the tile runs. The Government sold all the land in parcels following World War II. Over the years the sewer system was no longer maintained but the tile became important to the landowners as a method of draining the land. Because the tile was completely enclosed, the other field-tile systems on other lands which drained into it added water to that which naturally percolated into the main 27-inch tile. The drain then acted as a hose, keeping water in the drain clear to the end of the tile regardless of the elevation of the ground through which the drain passed from the south to the north. Plaintiffs became accustomed to tapping this water supply for irrigation purposes during the dry season.

The original outlet for the tile was to the north of the plaintiffs’ land but the evidence clearly shows that there is a low spot to the south of the plaintiffs’ land where the breach occurred.

The breach was ordered by the defendants, drainage commissioners of Union Drainage District No. 1, who caused the breach of the drain in question to construct a drainage ditch running east-and-west to the south of the plaintiffs’ property through the natural low spot.

Plaintiffs base their claim upon certain provisions of the Drainage Code (Ill Rev Stat 1965, c 42, § 1 et seq.), and particularly § 2-10 of that Code, which provides:

“Drains and levees deemed to be for the mutual benefit of the lands connected or protected shall constitute a perpetual easement on such lands and shall not be filled, obstructed, breached or impaired in any way without the consent of the owners of all such lands.”

The applicability of the Drainage Code to this former sewer and the right of the plaintiffs to a perpetual easement for drainage purposes therein were resolved in favor of the plaintiffs by the court below, and such findings are not an issue here. The sole question is, did the plaintiffs secure by the operation of the statutory language quoted above, a right to the integrity of the drain in question on lands below the plaintiffs’ land ? As stated by the trial court:

“The issue thus resolves itself as to whether or not the cutting of the tile constituted a breach or impairment of a drain deemed to be for the mutual benefit of all lands connected thereto in which the plaintiffs had a perpetual easement. . . .”

In resolving this issue against the plaintiffs the trial court reasoned that the easement granted by the Code was a drainage easement, which means an easement for the purpose of carrying water away from the plaintiffs’ land. The easement was not interfered with by the action of the defendants. The trial court relied upon statutory definition of “drain” in sec 1-2 (d) of the Act, which states:

“ ‘Drain’ includes ditch and means any water course or conduit, whether open, covered or enclosed, natural or artificial, or partly natural and partly artificial, by which waters coming or falling upon lands are carried away.”

Until the tile in question was breached, the plaintiffs were receiving a benefit incidental to the method of construction of the tile which caused water to flow through the plaintiffs’ land from lower lands to the south of the plaintiffs’ in defiance of the natural flow of water in open ditches. Plaintiffs contend that since the effect of the tile was to drain all these lands, the breach in question was a change or an obstruction of the course of the drain. Plaintiffs cite several cases they deem applicable including Anastaplo v. Radford, 14 Ill2d 526, 153 NE2d 37 (1958); Ariola v. Nigro, 16 Ill2d 46, 156 NE2d 536 (1959); Willis v. Rich, 30 Ill2d 323, 196 NE2d 676 (1964). In the cases relied upon, the obstruction or change interfered with the falling away of water from the complaining parties’ land. There is no evidence, there is no contention, that the breach in question prevented, hindered or changed the course of the drain in question or interfered with the “falling away” of the waters on plaintiffs’ land. The breach resulted only in a change in the direction of the flow of the water within the drain. According to the evidence, the drainage of the lands served by the tile was improved after the construction of the new ditch and the breach of the old drain. The facts in evidence here are clearly distinguishable from the facts relied upon by thé Supreme Court in announcing the doctrine of the above-cited cases.

Plaintiffs are given no rights by the Code to a continuation of the existence of an unnatural flow of water. The purpose of the Code is to insure that waters will not accumulate on higher land because of the acts or omissions of landowners of lower elevation.

The trial court correctly held that sec 2-10 of the Act does not establish a right enforceable in equity in the plaintiffs to a continuation of the integrity of the tile in question upon the showing here made that the sole purpose for repair of the breach is to provide the plaintiffs with a water supply artificially created. In the absence of evidence of a hindrance of the drainage purpose of the tile that was breached, neither the language nor the intent of the Drainage Code has been violated here. The decision of the trial court is in complete accord with the Code.

Judgment affirmed.

SMITH and HOFFMAN, JJ., concur.


author: MORAN, P. J.

text:
    Gilbert Edwards, et al., Plaintiffs-Appellants, v. Chicago and Northwestern Railway Company, a Wisconsin Corporation; Superior Coal Company, a Corporation; Lowell Hastings, et al., Defendants. Chicago and Northwestern Railway Company, a Wisconsin Corporation, Defendant-Appellee.
    Gen. No. 10,786.
    Fourth District.
    January 12, 1967.
    Rehearing denied February 10, 1967.

      McGrady & Madden, and J. E. Wenzel, of Gillespie, for appellants.
    M. E. Hebron, of Carlinville, and Edward Warden, of Chicago, for appellee.
   MORAN, P. J.

This is an appeal from judgments of the Circuit Court of Macoupin County, Illinois, dismissing the amended complaints in three consolidated cases.

The plaintiffs brought suit against the Chicago and Northwestern Railway Company, the Superior Coal Company, and five directors of the Superior Coal Company to recover for damage to their lands allegedly caused by surface subsidence. They alleged that the Superior Coal Company had been in possession of all coal underlying the surface of their lands and had engaged in mining and removing the coal at the time of the alleged subsidence, April 1, 1955; that, in mining and removing the coal, it failed to leave sufficient support for the surface property; and that, as a direct and proximate result of the failure to leave sufficient support, the surface property subsided, causing damage to the plaintiffs. They further alleged that the Superior Coal Company" filed Articles of Dissolution on February 27, 1957; that, at the time of dissolution, the Chicago and Northwestern Railway Company owned all of the shares of the Superior Coal Company, except for the qualifying shares owned by the five directors also named as defendants; that the five named directors have and use the same address as the defendant railway company; that the defendant railway company is the successor in title to all mineral rights and assets formerly owned by the Superior Coal Company, having taken a quitclaim deed recorded on July 6,1957; and that the railway company, together with the Superior Coal Company and the directors, are jointly and severally liable to the plaintiffs. The plaintiffs’ initial complaints were filed on November 19, 1959, more than eight months after the expiration of the two-year period prescribed by section 94 of the Business Corporation Act for the maintenance of suits against dissolved corporations.

The plaintiffs plead, in the alternative, that the defendant railway company is liable because it performed actions which it knew would deceive the plaintiffs and made statements which it knew to be false, with the intent to defraud the plaintiffs and to induce them to refrain from filing suits prior to the end of the period for initiating suits against the Superior Coal Company.

The trial court entered orders dismissing the plaintiffs’ complaints and this appeal followed. The lower court properly dismissed those allegations in the complaints naming the Superior Coal Company and its directors as defendants, since the complaints were not filed within the two-year period following the filing of Articles of Dissolution by the Superior Coal Company. Ill Rev Stats c 32, § 157.94. Therefore, two issues remain for our consideration: (1) May liability be predicated against a parent corporation, owning substantially all the shares of a subsidiary corporation, for surface subsidence over areas mined by a subsidiary corporation, where, upon dissolution of the subsidiary, the mineral rights and assets of the subsidiary were transferred to the parent and where suits for damage were initiated within five years after the alleged subsidence, but after the period within which a suit could be brought against the dissolved corporation; and (2) do those parts of the amended complaints which allege fraud on the part of the railway company state a cause of action?

In Kruse v. Streamwood Utilities Corp., 34 Ill App2d 100, at 113, 180 NE2d 731 the court commented upon a rule well established in Illinois:

“In Dregne v. Five Cent Cab Co., 381 Ill 594, 46 NE2d 386, the court lays down the rule that it is sufficient in order to treat one corporation as the alter ego of another where there is such a unity of interest and ownership that the individuality of one corporation has ceased, and where the observance of the fiction of separate existence would under the circumstances sanction a fraud by promoting injustice. In Ohio Tank Car Co. v. Keith Ry. Equipment Co., 148 F2d 4 (7th Cir) the court says: ‘The general rule that a corporation and its stockholders are deemed separate entities is subject to the qualification that separate identity may be disregarded in exceptional situations where it otherwise would present an obstacle to due protection or enforcement of public or private rights.’ ”

In the Dregne case, supra, our Supreme Court cited with approval Taylor v. Standard Gas & Electric Co., 306 US 307, wherein the United States Supreme Court held that “the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when so to do would work fraud or injustice.”

In the present case, if the plaintiffs can produce evidence that there was a unity of interest and ownership between the Chicago and Northwestern Railway Company and the Superior Coal Company and that the recognition of the coal company’s separate identity would “present an obstacle to the due protection or enforcement of public or private rights” or would “promote injustice,” then liability could properly be predicated against the railway company. The amended complaints of the plaintiffs have alleged that such a unity existed and that such an injustice would result. Therefore, the trial court erred in dismissing those parts of the amended complaints which predicated liability against the railway company for surface subsidence over areas mined by its subsidiary, the Superior Coal Company.

The defendant relies primarily upon Tankersley v. Peabody Coal Co., 31 Ill2d 496, 202 NE2d 498, affirming 45 Ill App2d 101,195 NE2d 402, and Buis v. Peabody Coal Co., 41 Ill App2d 317, 190 NE2d 507. In Tankersley, our Supreme Court held that a coal mine operator is not liable “for surface subsidence over areas mined only by his predecessor in title, where there has been no express assumption of such liability, and the predecessor is a wholly unrelated business entity.” 31 I112d at 498. In addition, the court stated the holding of the Buis case, at 501:

“In Buis, the Appellate Court, deciding the issue for the first time in Illinois held that a coal company which has purchased coal and mine workings of another unrelated company, without expressly assuming such liabilities, is not liable for subsidences or sinking of land areas due to the mining of its predecessor in title but is liable only for subsidences and the resultant damages due to its own mining operations.”

Finally, the court placed emphasis upon the fact that forty years or more had passed between the discontinuance of active mining operations and the surface subsidence.

Reliance by the defendant on these cases is misplaced, because they are readily distinguishable from the present case. The predecessor in title is not a wholly unrelated business entity, but a subsidiary corporation. Then, too, the Superior Coal Company allegedly conducted active mining operations until the time of its dissolution and the transfer of its assets, narrowing the period between the discontinuance of mining operations and the surface subsidence.

Concerning the second issue, we reiterate the language which we recently used in Fanning v. Lemay, 78 Ill App 2d 166, 222 NE2d 814:

“The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. Ch 110, sec 33(3), Ill Rev Stat 1965. Section 4 of the Civil Practice Act provides that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the rights of the parties. (Ch 110, Sec 4, Ill Rev Stat 1965). Sec 31 provides that certain formal requisites heretofore pertaining to pleading are no longer necessary, but states that the section does not affect in any way the substantial averments of fact necessary to state a cause of action, and Section 42(2) provides: ‘No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.’ ”

The essential elements of an action for fraud are that the defendant made representations that were false; that they were known by the defendant to be false and made with the intent to deceive the plaintiffs; and that the plaintiffs, believing the representations, relied upon them to their damage or injury. Wright v. Peabody Coal Co., 290 Ill App 110, 8 NE2d 68; Skidmore v. Johnson, 334 Ill App 347,79 NE2d 762.

The amended complaints essentially allege that the defendant railway company performed certain acts and made certain statements in order to induce the plaintiffs to refrain from filing suits against the Superior Coal Company during the two-year period within which suits could be maintained against the dissolved corporation. Paragraphs 25, 26, 27 and 28 allege that the defendant made representations which it knew to be false and performed acts which it knew would deceive the plaintiffs. Paragraphs 17, 19, 20, 23, 24, 25, 26, 27 and 28 allege that the defendant acted with the intent to deceive the plaintiffs. Paragraph 28 alleges that the plaintiffs relied on the defendant to their detriment. The essential elements of an action for fraud have been alleged.

Although we agree with the defendant that “statements by way of general conclusions of fraud are not sufficient in a pleading,” that proposition has no application to the complaints in this case, because there were sufficient allegations of fact to inform the defendant “of the nature of the claim or defense which he is called upon to meet.”

For the foregoing reasons, the judgments of the lower court in favor of the Superior Coal Company and its directors are affirmed, and the judgments in favor of the Chicago and Northwestern Railway Company are reversed.

Affirmed in part, reversed in part, and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Annie L. Williams, a/k/a Annie Webster, Defendant-Appellant.
    Gen. No. 66-44.
    Second District.
    January 13, 1967.

      Knight, Ingrassia & Schirger, of Rockford, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Philip G. Reinhard, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Annie L. Williams, a/k/a Annie Webster, was charged in a four-count information with illegal receipt of public aid benefits. In a bench trial, she was found guilty on all counts and sentenced to a term of one year at Dwight Women’s prison.

The defendant contends she was denied due process, arguing that she was convicted under a vague statute; and contends in the alternative that the information was legally insufficient. She also argues that the failure of the trial judge to require an answer to a question in a Bill of Particulars was error.

The statute under which defendant was convicted, being chapter 23, section 818 of the Illinois Revised Statutes (1965), provides in relevant part:

“Any person who by means of any false statement, willful misrepresentation, failure to notify the County Department of a change in status in respect to his property or need, or family composition, amount of income, money contributions and other support, from whatever source, for the purpose of preventing the denial, cancellation or suspension of his grant or a variation in the amount thereof, or other fraudulent device obtains or attempts to obtain or aids or abets any person to obtain old age assistance, assistance to the medically indigent aged, blind assistance . . . shall be fined not more than $1,000.00 or imprisoned for not more than 1 year, or both.”

The amended information charges the offense of receiving illegal public aid in violation of paragraph 818, chapter 23, Illinois Revised Statutes (1965) in four counts, as follows:

Count I.
“. . . That she was unmarried, for the purpose of preventing the denial, cancellation or suspension of her grant or a variation in the amount thereof. . .”
Count II.
“. . . that she, while receiving aid to dependent children willfully failed to notify the Winnebago County Department of Public Aid of a change in status with respect to her family composition, to-wit: That she was married to Leon Webster, for the purpose of preventing the denial, cancellation, or suspension of her grant or a variation in the amount thereof. . .”
Count III.
“. . . willfully failed to notify the Winnebago County Department of Public Aid of a change in status in respect to her property, to-wit: That she owned a 1958 Buick automobile, for the purpose of preventing the denial, cancellation, or suspension of her grant or a variation in the amount thereof. . .”
Count IV.
“. . . willfully failed to notify the Winnebago County Department of Public Aid of a change in status in respect to her property, to-wit: That she had a savings account in the Illinois National Bank & Trust Co. of Rockford, Illinois, for the purpose of preventing the denial, cancellation, or suspension of her grant or a variation in the amount thereof. . .”

The essential facts are uncontroverted. Defendant openly admitted the basic facts in the information and they were also proved by other witnesses. However, she denied that she wilfully attempted to fraudulently obtain public aid.

The court is of the opinion that the statute is not vague; that the information is sufficient; that the particular answer in the Bill of Particulars was properly denied, and that defendant’s guilt was established.

The attack on the statute in the Appellant’s Brief and Argument is not specifically directed to any phrase in the statute, but from the general tenor of the brief and the argument and the oral argument, it appears to be directed essentially at the included term “willful misrepresentation.” The term is not defined in the statute. It is contended that ordinary men, reading this term, are not advised of its meaning and therefore cannot have knowledge of what constitutes the offense.

The test to be applied to a penal statute is whether it is sufficiently definite and certain to enable all men to know what acts are proscribed and what conduct will make them liable to punishment. People v. Green, 368 Ill 242, 13 NE2d 278 (1961) ; People v. Robinson, 372 Ill 503, 24 NE2d 376 (1949); People v. Jackson, 66 Ill App2d 276, 214 NE2d 316 (1st Dist 1966). Words in a statute may be defined by common usage, by previous judicial construction, as well as by statutory definition, to render a statute certain. Thus, for example, “Reckless disregard of the safety of others,” “obscene” and “indecent,” “disorderly,” “manager, proprietor and conductor,” “cohabit” or “carnal knowledge,” and “fraudulently administering” all have been held certain of meaning though not defined in the particular statute. People v. Garman, 411 Ill 279, 103 NE2d 636 (1952); People v. Cooper, 366 Ill 113, 7 NE2d 882 (1937); People v. Fried-rich, 385 Ill 175, 52 NE2d 120 (1943); People v. Boyden, 7 Ill App2d 87, 129 NE2d 37 (2d Dist 1955); People v. Burke, 400 Ill 240, 79 NE2d 488 (1948); People v. Robinson (supra).

Without attempting to exhaust all authorities, the terms “willful” or “willful misrepresentation” have a similar well accepted meaning and have been defined under other statutes in many decisions as synonymous with “intentionally,” “designedly,” “knowingly” and “without lawful excuse.” People v. Player, 309 Ill App 435, 32 NE 2d 932 (3d Dist 1941); Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 129, 171 NE2d 60 (1960), 27 CJS, Disturbance of Public Meetings, § lb; 45 Words and Phrases. Consistent with this, the Criminal Code also has defined the term “wilfully” in section 4-5 (b) of chapter 38, Illinois Revised Statutes, as “Conduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.”

The specific detailing of the acts charged as false statements and wilful misrepresentations in the Information in this case would, in any event, make particular the general language in the statute. People v. Green (supra). The contention that the defendant concluded that her acts were not within the statute does not aid her as the court determined that they were. People v. Friedrich (supra); People v. Player (supra). In the Player case the defendant was charged with wilfully failing to make returns under the Retailers Occupation Tax Act (Ill Rev Stats 1939, c 120, par 452). The single question was whether or not he had wilfully failed to file a return. The court in sustaining the conviction held that “his intention was to be gathered from his actions and conduct appearing in evidence and not alone from his stated intention.”

The testimony of the defendant that she knew she was making a false statement as to her marital status, that she gave receipts for rent payments although she paid no rent money, and that she did not disclose her bank account and automobile sufficiently establishes guilt under the statute.

The Information was largely in the language of the statute. The Bill of Particulars was answered except for the request for the definition of the word “wilful.” This amounted to a request for a legal conclusion. The purpose of a Bill of Particulars is to notify a defendant of the particular transactions upon which the State will rely, to limit the evidence. Here the statute and the information sufficiently charged the defendant so that she could have adequately defended. She was given answers by the State as to factual matters requested in her Bill. It was not the office of the Bill of Particulars to furnish answers to questions of law. People v. Whitmer, 369 Ill 317, 16 NE2d 757 (1938) ; People v. Tsukas, 406 Ill 613, 94 NE2d 895 (1950) ; People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965); People v. Westrup, 372 Ill 517,25 NE2d 16 (1940).

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

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


author: EBERSPACHER, J.

text:
    James R. Wall, Plaintiff-Appellee, v. Gerald J. Lanahan and Hartford Accident and Indemnity Company, a Corporation, Defendants-Appellants, v. William M. Pistrui, Third Party Defendant.
    Gen. No. 66-38.
    Fifth District.
    January 10, 1967.

      Gibbons & Gibbons, and Durr & Durr, all of Edwardsville, for appellants.
    Kassly, Weihl, Carr & Bone, of East St. Louis (John B. Raffaelle, of counsel), for appellee.
   EBERSPACHER, J.

This is an action brought by plaintiff, James R. Wall, for property damage after construction of his new home in Lou-Juan Hills, Collinsville Township, Illinois. Defendants are Gerald J. Lanahan, Contractor, Hartford Accident and Indemnity Co., surety, and William M. Pistrui, architect. Defendants Lanahan and Hartford Accident and Indemnity Co. filed a third-party suit against defendant William M. Pistrui. Plaintiff alleges that defendant, Gerald Lanahan failed to comply with specifications and requirements set forth in the construction contract and is liable for resulting damages. Plaintiff bases his action against Hartford Accident and Indemnity Company upon provisions of a performance bond. Action against William Pistrui was based upon improper preparation of plans and specifications and failure to adequately supervise the construction. Plaintiff sustained extensive property damage to his front walk, stoop, carport slab, planter and retaining wall.

Defendant Pistrui filed no answer or response to the complaint of Wall, against him. He filed a motion to dismiss the amended third-party complaint which motion was never ruled upon, and his counsel participated in the trial of the case.

The action was heard by the court without a jury. The court found in favor of defendant, Pistrui, on both plaintiff’s complaint and the third-party complaint of defendants Lanahan and Hartford Accident and Indemnity Co. The court further found in favor of plaintiff and against defendant Lanahan, and defendant, Hartford Accident and Indemnity Co., and rendered a joint verdict against them in the sum of $5,930. The post-trial motion of defendant Lanahan, was denied and this appeal was perfected.

A motion to dismiss the appeal of defendant Hartford Accident and Indemnity Company was taken with this case. Since Hartford Accident and Indemnity Company filed no post-trial motion there was nothing to stay their time to appeal. Their appeal was not timely filed, and the motion to dismiss the appeal of defendant Hartford Accident and Indemnity Company is allowed. The third-party complaint against William M. Pistrui has been abandoned by the appellants, therefore the judgment for the third-party defendant, Pistrui, is affirmed.

The evidence shows that on the first day of September, 1960, plaintiff entered into a written contract for the construction of a home in Lou-Juan Hills, Collinsville Township, Illinois, with the defendant, Gerald Lanahan, and also secured a written bond from defendant, Hartford Accident and Indemnity Company, insuring contractor’s faithful performance of the contract. The contract and bonding agreement were admitted by defendants. Construction proceeded and payments were made from time to time to the contractor. In December, 1961, the construction had been completed and final payment was discussed by the parties hereto. A defect had appeared in the front walk and $100 was withheld from the final payment. Additional defects showed up such as cracking and settling of the carport floor, a cracking of the retaining wall and damage to a planter box used as a support for one post supporting the roof of the carport. Defendant was notified of these additional defects in the Spring of 1962. Responsibility for the defects was denied by defendant Lanahan and suit was filed.

Prior to the trial, the trial judge, all parties and their counsel viewed the premises. Although there is no stipulation in the record providing for the judge viewing the premises, no objection was made to this procedure and it in fact was concurred in by the presence of all parties to the suit.

The plans for the house did not include any guttering or downspouts for the roof and none were specified, so as to give it a trim appearance. It is defendant’s contention that failure of the architect to provide for disposal of roof water, allowed water to collect under the concrete and that freezing and thawing caused the damage, and that the failure to have the foundation of the planter placed below the frost line caused it to tilt. It is plaintiff’s theory that the damages were the result of the failure on the part of the defendant, Gerald Lanahan, to comply with the requirements of the plans and specifications in regard to compaction of earth fills. The specifications required 90% compaction of earth fills underlying the concrete structure.

William Pistrui, ■ the architect, testified that in his opinion, there was a settlement of earth due to lack of proper compaction; that he had caused compaction tests to be made, and the results showed the earth had not been compacted to the required 90%. He stated that there was no washing of the dirt as defendant Lanahan contended, and that the layer of rock, beneath the carport slab, would serve as a safety to drain off any water that normally got under the slab. In his opinion, the lack of guttering would have no adverse effect upon the concrete in the area, if the soil had been properly compacted. He further testified that if the soil had been compacted to 90%, no appreciable amount of water would have entered the soil and thus settling would have been prevented.

John T. Anderson and James Hoffstetter testified that they worked for Anco Testing Laboratory. Their testimony was that a soil sample had been taken from under the carport slab where it had broken and settled; and that their test showed that the compaction of the soil was 70%. There was also testimony to the effect that once soil is compacted, it can never be uncompacted in that area.

Mr. Thomas F. Ladd, a witness for the plaintiff, testified that he was in the concrete construction business; that he had inspected the damaged premises and estimated the cost of necessary repairs to be $5,930.

Gerald Lanahan, the defendant, was the only witness for the defense. He testified that in accordance with the specification, the carport slab was laid over white rock. It was his opinion that due to the lack of gutters, water had accumulated under the carport slab, and that its freezing and thawing damaged the slab. He caused no tests to be made for compaction, but was of the opinion that by running a 12 to 14-ton tractor and trucks over the fill, adequate compaction was attained.

Defendant has contended that when $100 was withheld due to the defect which then had appeared in the sidewalk, that there was an accord and satisfaction, as to that damage. Defendant admitted that he had intended to fix the walk until the numerous other defects appeared. No certificate of final completion was ever issued and the last forms of the bonding company were never completed, because plaintiff did not consider the work completed. The court properly decided, from the evidence, that no settlement of the claim was made, and that there was no accord and satisfaction.

Defendant has also contended that the judgment is based on the alleged improperly admitted evidence of the witnesses Anderson and Hoffstetter. The contention seems to be as to their qualification as experts in the field of soil compaction, and the fact that they brought neither the samples tested nor their soil testing equipment into court. We know of no rule that requires the introduction into evidence of either samples tested or testing equipment, and appellant has cited none. A reading of their testimony satisfies this court that the trial judge did not abuse his discretion in determining that the subject was a proper one for expert testimony, and whether the witnesses were qualified by special knowledge, skill or experience to express an opinion. See, Gard, Illinois Evidence, Rule 219, and cases cited therein.

Defendant has also contended that the court erred in proceeding to judgment without plaintiff’s wife being joined, since it developed in plaintiff’s testimony that his wife was a joint tenant of the premises on which the house was constructed. Upon this fact being discovered, defendant moved that the action be dismissed because all necessary parties were not before the court; after hearing evidence that she was not a party to the contract or bond, both of which were pleaded, plaintiff’s counsel offered either to stipulate to make her a party or submit a waiver of any action she might have against defendant Lanahan. No such stipulation or waiver appears in the record, nor does there appear any motion to make plaintiff’s wife a party plaintiff. Defendant has cited Sommers v. Korona, 54 Ill App2d 425, 203 NE2d 768, wherein that court quoted the following from Johnson v. Moon, 3 Ill2d 561, 121 NE2d 774, to the effect that “Joinder of multiple plaintiffs and of multiple defendants now depends broadly upon the assertion of a right to relief, or a liability, arising out of the same transaction or series of transactions and the existence of a common question of law or fact.” Here the damages claimed allegedly arose out of the failure to properly perform a contract to which plaintiff’s wife was not a party; and on a bond which provided specifically that the right of action should accrue only to the plaintiff. Under the facts and circumstances here present, the court did not err in proceeding without plaintiff’s wife being joined as a party plaintiff, even though she may have been a desirable party.

As to defendant’s principal contention that the judgment is against the manifest weight of the evidence, we must note that there is conflicting evidence as to the cause of the damage, as well as the fact that the parties by implied consent at least, made the court a witness. The law is so well established in Illinois, that it is the province of the trial judge, hearing a case without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and his judgment will not be disturbed unless manifestly contrary to the weight of the evidence, that we do not consider it necessary to cite authority to support that proposition. Here there was ample evidence from which the court could reach the conclusion that defendants should respond in damages. As a result, we affirm the judgment, from which defendant has appealed.

Affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: GOLDENHERSH, J.

text:
    Alvin H. Schutt, Plaintiff-Appellee, v. Terminal Railroad Association of St. Louis, a Corporation, and Southern Railway Company, a Corporation, Defendants-Appellants.
    Gen. No. 66—63.
    Fifth District.
    January 13, 1967.

      Robert C. Ely, of St. Louis (Cox, Bassett and Quinn, of Wood River, of counsel), for appellant Terminal Railroad Association of St. Louis, and Roberts, Gundlach, Lee & Stubbs, of East St. Louis (Norman J. Gundlach, of counsel), for appellant Southern Railway Company.
    McGlynn & McGlynn, of East St. Louis, for appellee.
   GOLDENHERSH, J.

Defendants, Terminal Railroad Association of St. Louis, hereinafter called Terminal, and Southern Railway Company, hereinafter called Southern, appeal from the judgment of the Circuit Court of St. Clair County, entered against both defendants, upon a jury verdict in the amount of $125,000.

Count I of the complaint, directed against Terminal, is based on the Federal Employers’ Liability Act (Title 45, USCA, § 51 et seq.). Count II, directed against Southern, alleges negligence on the part of Southern, and plaintiff’s freedom from contributory negligence.

Terminal contends that it is entitled to a new trial because the trial court erred in denying its offer to read to the jury a portion of plaintiff’s discovery deposition, which, it argues, is an admission against interest, and therefore, admissible, and erred further in giving, over the objection of Terminal, an instruction tendered by Southern.

Southern contends that the trial court erred in denying its motions for directed verdict, and argues that there is no evidence to sustain plaintiff’s charges of negligence, and assuming, arguendo, that there is evidence of its negligence, such negligence was not the proximate cause of plaintiff’s injury.

Both defendants contend that the verdict is grossly excessive.

The evidence shows that plaintiff was employed by Terminal as a switchman. He reported to work at 11:00 p. m. on April 8, 1963, at Terminal’s C. D. Yards, located in East St. Louis. At approximately 12:40 a. m. on April 9th, he and the crew with whom he worked were ordered to take 22 cars loaded with refrigerated meat from Terminal’s C. D. Yard to Southern’s Coapman Yard, also located in East St. Louis. This was a movement which was made every night, and an exhibit offered by Terminal and admitted in evidence, shows that between the dates of April 1, 1962, and the date of plaintiff’s injury, it left Terminal’s C. D. Yard some time between 12:05 a. m. and 1:40 a. m. each morning. To reach the Coapman Yard, the train was required to pass through Southern’s Sixth Street Yard. The time normally required to reach the Sixth Street Yard was 5 minutes, and the running time from C. D. Yard to Coapman, was usually about 25 minutes. The train traveled eastwardly, crossed Fourth Street in East St. Louis, and entered the Sixth Street Yard on what is described as Southern’s main track.

W. R. Wilson, called by plaintiff under section 60 of the Civil Practice Act, testified that he was foreman of a Southern crew that brought a cut of 10 or 12 cars from Coapman to the Sixth Street Yard. Upon entering the Sixth Street Yard, they “kicked” the hind car onto track 3. Track 3 is a classification track which extends in a general easterly and westerly direction in Southern’s Sixth Street Yard. It is the most northerly of the classification tracks, which are numbered 3 through 8, and is the nearest to the track referred to as Southern’s “main.” After kicking the car onto track 3, they proceeded to classify other cars standing on other tracks in the yard, which cars were to be taken to Coapman. The car kicked onto track 3 was also to be returned to Coapman.

Track 3 is not level, there is some grade change, and the car, after being kicked onto track 3, rolled back 10 or 15 feet, and when it stopped, was “fouling the main.”

Mr. Wilson also testified that he knew the Terminal would make a delivery of cars from its C. D. Yard to Southern’s Coapman Yard, these cars would be included in a Southern train scheduled to leave Coapman at 1:30 a. m., the movement would be required to come through Southern’s Sixth Street Yard, and when the Southern Crew kicked the car onto track 3 at about 12:15 a. m., he knew the Terminal train had not as yet come through.

Freeman G. Montgomery, called by plaintiff, testified that he was employed by Terminal as a locomotive engineer, that he was operating the engine in reverse position, which placed him to the left of the cab, that upon entering the Sixth Street Yard, the train was traveling at a speed of 6 to 8 miles per hour, that “the condition of the Sixth Street Yard as far as lighting is concerned is fairly dark,” that at a point where the main track curves to the right, he could see that a car standing on track 3, about 300 feet to the east, was west of the clearance point at which a car moving over the main track will clear a car standing on track three. He estimated the length of the standing car at 50 feet, and testified that approximately one-third of the car was “fouling” the main. He stated that as soon as he saw the standing car, he applied the brakes. An emergency application of the brakes locks all of the wheels, and is the automatic train brake, as distinguished from the engine brake. Once the brake is applied, “you can’t take them out.” The train comes to a complete stop and the engine must “set and pump them brakes all off again.” He applied these brakes when five-car lengths away from the standing car, and it takes a car length to take hold. The train would have stopped in another car length. He did not know the speed at the time of impact, but “we hit a pretty good jolt.”

An exhibit prepared by an engineer employed by Southern, shows that the Southern main track extends from the south line of Fourth Street in an easterly direction for 200 feet, to a switch, an industrial track extends east from the switch, the main curves to the southeast and then to the east, that the last point at which a car moving on the main track will clear a car standing on track 3 is 450 feet from the switch, that the switch for the main and track 3 is about 80 feet east of that point, that the point of impact between the locomotive and the standing car was 18 feet 9 inches east of the clearance point. The exhibit shows that there is a floodlight approximately 150 feet from the point at which the Terminal engine and the car collided, a street light approximately 160 feet distant, and another street light and a floodlight approximately 400 feet distant in the opposite direction.

Anthony A. Redfearn, the conductor on the Terminal’s train, called by plaintiff under section 60, testified that he was riding in the cab, that they were using a switch engine, which works equally well forward or backward, that as the engine made the curve, the headlight, which is in a fixed position, illuminated the track ahead, that they saw the car, that there is not enough light in that part of the yard to see the car without the switch engine’s headlight shining on it, none of them were sure whether the car fouled the main, and a slight brake application was made just in case, that when they were 200 to 225 feet back from the clearance point, the engineer made the emergency air brake application, the train slowed down, but hit the standing car.

Plaintiff testified that he had made this particular run twice before, that he was riding in the middle, on a small seat in the rear of the cab, that he first saw the standing car when the engine was 5- or 6-car lengths away, that at first he could not say whether the car was fouling the track, or was in the clear, that someone yelled “it isn’t going to clear,” and the engineer put the train into emergency.

After the plaintiff had rested, and the court had ruled on motions for directed verdicts, counsel for Terminal asked leave of the court to recall plaintiff for further cross-examination with respect to answers made by plaintiff to questions propounded to him at the time of the taking of his discovery deposition. The court denied the request, and counsel thereupon asked leave, during the presentation of Terminal’s case, to read three questions and answers from the discovery deposition, basing the request on the ground that the answers constitute an admission against interest, and were, therefore, admissible. The record shows that counsel for Terminal cross-examined plaintiff extensively as to questions asked, and answers given, in the discovery deposition. No reason is given for counsel’s failure to inquire of plaintiff regarding these matters during cross-examination. Whether a party should be permitted to recall a witness for further cross-examination after the close of the adversary’s case is a matter of discretion with the trial court, and the court’s ruling will not be held erroneous, unless it was an abuse of such discretion. Cal Hirsch & Sons Iron & Rail Co. v. Coleman, 227 111 149, 81 NE 21. The trial court did not abuse its discretion in denying Terminal’s request to recall plaintiff, and its ruling was not error.

We need not discuss the cases cited by Terminal, in support of its contention that an admission against interest made by a party to the cause, during a deposition, is admissible, since neither we, nor plaintiff, disagree with the abstract proposition of law therein set forth. An admission against interest is a statement made by or attributable to a party to an action, which constitutes an admission against his interest and tends to establish or disprove any material - fact in the case. We have examined plaintiff’s testimony, and the answers which Terminal desired to read to the jury, and hold that these answers are not admissions against interest and the trial court properly refused the offer.

At the request of Southern, the court gave the following instruction:

“If the jury believes from all the evidence that the plaintiff was guilty of negligence which proximately contributed to his injuries, plaintiff cannot recover from defendant, Southern Railway Company; however, this is not true as to defendant, Terminal Railroad Association of St. Louis.
“If the jury finds from all the evidence that defendant, Terminal Railroad Association of St. Louis, or any of its agents, servants, or employees was guilty of any negligence which proximately contributed in whole or in part to plaintiff’s injuries, plaintiff is entitled to recover from defendant, Terminal Railroad Association of St. Louis.”

Terminal objected to the giving of the instruction, and plaintiff’s counsel advised the court that in his opinion, the instruction was argumentative.

The instruction is not in IPI, however, IPI 160.22 is similar in content. Supreme Court Rule 239 provides that when IPI contains an instruction applicable in a civil case, and the court determines that the jury should be so instructed, the IPI instruction shall be used. In view of the fact that IPI 160.22 is applicable in this case, if the parties desired an instruction on the issues covered therein, the IPI form should have been used.

An examination of the pleadings shows that Terminal did not plead contributory negligence in mitigation of damages, and tendered no instruction on that issue. If plaintiff’s contributory negligence were an issue in the case against Terminal, and the evidence such as to make the question a close one, failure to comply with Rule 239 might possibly be prejudicial. Here, however, the giving of the instruction could not possibly have been prejudicial to Terminal, and the error is harmless.

Count II of the complaint, in substance, alleges negligence on the part of defendant, Southern, as follows:

(a) it permitted the box car to stand upon and foul the track when it knew, or in the exercise of reasonable care should have known, that it presented a hazard to traffic proceeding along the main line.

(b) failed to provide adequate warning to plaintiff and his crew members of the danger.

(c) failed to provide lighting adequate to enable persons traveling its main line to see the dangerous obstruction.

At the close of the plaintiff’s case, Southern moved for a directed verdict on the grounds that the evidence showed that “the accident in question was not proximately and directly caused by any of the charges of negligence but instead the proximate and direct cause of this accident was due to the negligence of the other defendant, Terminal Railroad Association of St. Louis. As to the charge of negligence contained in paragraph 4b, there is no duty on the part of the Southern toward the plaintiff, as charged in said paragraph, and there’s no evidence to sustain this allegation of paragraph 4b. As to 4c, there is no duty on the part of the defendant, Southern, or any evidence to sustain the allegation of paragraph 4c of the plaintiff’s complaint, against the Southern.” At the close of all the evidence, Southern filed written motions for directed verdicts on all three specific charges of negligence.

A motion for a directed verdict presents the issue of whether the plaintiff’s evidence, considered together with all reasonable inferences from it, in its aspect most favorable to the plaintiff, fails to prove any necessary element of the plaintiff’s case. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717. Southern owed plaintiff and others rightfully upon its premises, the duty to exercise ordinary care to keep the premises in a reasonably safe condition. Milauskis v. Terminal R. Ass’n of St. Louis, 286 Ill 547, 122 NE 78. As stated by the Supreme Court in Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253 at page 331, “. . . . in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.”

On the issues of proximate cause, and whether there was an independent intervening cause, the rule is well stated in Neering v. Illinois Cent. R. Co., 383 Ill 366, 50 NE2d 497, in which opinion, at page 380, the Supreme Court said: “It cannot be denied that if the negligence of the defendant only furnishes a condition and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of an injury. However, the rule is that the subsequent independent act, in order to break the causal connection, must be one, the intervention of which was not probable or foreseeable by the first wrongdoer. What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. (Citing cases.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Citing cases.) The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. (Citing cases.) What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence. (Citing cases.)” In reviewing the rulings of the trial court on these successive motions, the evidence must be examined in the light of the foregoing rules.

The testimony shows that Terminal crews, while in Southern’s yard, are required to operate under Southern’s rules.

Southern rule 103A provides:

“Cars or engines stopped on tracks must be properly secured, must clear insulated joints, other tracks, and street, public or private crossings, and must be left as far back from the crossing as practical under the circumstances and proper precautions must be taken to prevent damage or fouling other tracks before coupling the cars or engines where such equipment may roll away.”

Southern rule 98 provides:

“Cars must not be left fouling the end of two or more tracks, junctions and railroad crossings at grades, when engine is detached to perform switching or other work except an unavoidable circumstance.”

Southern contends that in leaving the car on track 3 at a point where it fouled the main track, it did not violate these rules, because its crew, at the time of the collision, was still engaged in the process of switching and classifying cars, and the car would have been removed from track 3 prior to completion of the switching process in which its crew was then engaged. It also argues that the rule is inapplicable because the track referred to as the “main” is not a main line, but is, in fact, a classification track. It further contends that assuming, arguendo, that it violated its rule 103A, and was negligent, its conduct at most created a condition, and it was the independent, intervening act of Terminal which caused plaintiff’s injury. Southern contends that the proximate cause of plaintiff’s injury was Terminal’s violation of Southern’s rule that speed within its yard must be such that it will permit stopping within one-half the range of vision.

With regard to plaintiff’s allegations that Southern was negligent in fouling the main track and in failing to provide adequate warning of the hazard thus created on the track over which it knew Terminal’s crew would be required to travel, the testimony shows that Southern’s foreman knew the time interval within which the movement must be accomplished, and that the Terminal train had not come through the Sixth Street Yard. The testimony and exhibits showed the location of lights in Southern’s yard, and there is testimony that the standing car could not be seen until Terminal’s engine had rounded the curve in the main track, when for the first time it was visible in the light cast by the headlight on the switch engine. Under the evidence presented, the issues of Southern’s negligence, and whether its negligence was a proximate cause of plaintiff’s injury were properly submitted to the jury, and the trial court did not err in denying Southern’s motions for directed verdicts.

We next consider the defendants’ contention that the verdict and judgment are excessive. The evidence shows that at the time of his injury, plaintiff was 38 years of age, and had been employed by Terminal as a switchman for 13 years. He was first sergeant in a Railway Battalion in the active reserves, in charge of training a company of men to be switchmen. In 1961, he earned $6,116.97 from the defendant, Terminal, and $577 from the Army; in 1962, $6,153 and $475, and in 1963, $1,960.92 and $378.-88.

At the time that Terminal’s engine struck the standing car, plaintiff was thrown backward and struck a water cooler and the steel doors in the back of the cab. His next recollection is of lying on the ground, vomiting. He was taken to the Missouri Pacific Hospital in St. Louis and remained there for 14 days. His left side was numb and he experienced sharp pain in his back and hip. Upon his discharge from Missouri Pacific Hospital, he continued as an outpatient and received treatment once each week until November 1963. In June 1963, his attorney referred him to Dr. Kilian F. Fritsch, an orthopedic surgeon. At that time he was complaining of numbness in the left arm and leg, and was walking with the aid of a crutch. The left thigh was one-half inch smaller than the right. X rays showed a narrowing of the segment between L-5 and S-l. There was a fifty percent loss of movement of the spine, muscle spasm, a positive Laseque sign, which indicates the sciatic nerve in the left leg is tender. A myelogram was performed in April 1964, and was negative. Dr. Fritsch made a diagnosis of a preexisting degenerative disc at L-5 and S-l, which was aggravated by the trauma experienced on April 9, 1963. He uses a cane to walk and wears a lumbosacral corset. Dr. Fritsch was of the opinion that plaintiff cannot do physical work requiring walking, stooping or bending, and cannot get on and off moving trains as a switchman. Plaintiff has not worked in a railroad job since his injury, and because he was unable to perform his Army duties, he was put in a reservist group to serve out the rest of his enlistment. He was not permitted to reenlist because he cannot pass the Army physical examination. At the time of trial (May 1965) he had worked three months as an insurance salesman and had monthly earnings of $214, $232 and $80. He uses the cane to walk because he has experienced sudden attacks of pain which run from the hip down into his left leg, and when this occurs it is impossible for him to stand. Prior to April 9, 1963, he had worked regularly as a switchman and had experienced no trouble with his back or leg.

In Dallas v. Granite City Steel Co., 64 Ill App2d 409, 211 NE2d 907, at page 427, this court said: “The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury. Smith v. Illinois Cent. R. Co., 343 Ill App 593, 99 NE2d 717; Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717; Ford v. Friel, 330 Ill App 136, 70 NE2d 626.”

The assessment of damages is preeminently a jury function, Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 208 NE2d 358. On the record before us we are not prepared to say the judgment is excessive.

During the oral argument of this case, the court requested counsel to file additional briefs addressed to the question of whether the defendant, Southern, was liable to plaintiff, under the doctrine of “vicarious liability.” (See American National Bank & Trust Co. v. Pennsylvania R. Co., 35 Ill2d 145, 219 NE2d 529; Armstrong v. Chicago & W. Ind. R. Co., 350 Ill 426, 183 NE 478; Chicago & E. I. R. Co. v. Schmitz, 211 Ill 446, 71 NE 1050; Chicago & Grand Trunk Ry. Co. v. Hart, 209 Ill 414, 70 NE 654, 66 LRA 75; Wilson v. Terminal R. Ass’n of St. Louis, 333 Ill App 256, 77 NE2d 429.) Because we have decided that the evidence supports the jury’s verdict that defendant, Southern, was negligent, we do not discuss this issue. We are, nevertheless, grateful to counsel for a thorough briefing of the question.

For the reasons herein set forth, the judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Frozen Food Express, a Corporation, Plaintiff-Appellee, v. Modern Truck Lines, Inc., a Corporation; and Andrew J. Tharp, Jr., Defendants-Appellants. Modern Truck Lines, Inc., a Corporation, Counter-Plaintiff-Appellant, v. Frozen Food Express, a Corporation, Counter-Defendant-Appellee.
    Gen. No. 66-34.
    Fifth District.
    January 23, 1967.

      Pope and Driemeyer, and Listeman, Bandy and Hamilton, of East St. Louis, for appellants.
    Wham and Wham, of Centralia, for appellee.
   GOLDENHERSH, J.

Defendants, Modern Truck Lines, Inc., and Andrew J. Tharp, Jr., appeal from the judgment of the Circuit Court of Marion County entered on a jury verdict in the amount of $6,500. Defendant, Modern Truck Lines, Inc., also appeals from the judgment entered in favor of plaintiff, Frozen Food Express, on its counterclaim.

The evidence shows that Jake Tarlton owned a tractor which was leased to plaintiff. On April 28, 1964, he was pulling a trailer owned by plaintiff, and was driving in a northerly direction on Route 3. At that time, defendant, Andrew J. Tharp, Jr., was driving a tractor-trailer unit owned by defendant, Modern Truck Lines, Inc., in a southerly direction on Route 3. At a point about 3 miles north of Chester, in Randolph County, the vehicles collided. Plaintiff sued for damages to its trailer, defendant, Modern Truck Lines, Inc., counterclaimed for damages to its vehicle, and the trial resulted in the verdicts and judgments from which defendants appeal.

Defendants contend that the trial court erred in refusing to direct a verdict in their favor on plaintiff’s suit, and alternatively, that the judgments should be reversed and the case remanded for a new trial because the verdicts are against the manifest weight of the evidence. Defendants also contend that the trial court committed reversible error in permitting James Herod, a witness called by plaintiff, to testify, and in thereafter denying defendants’ motion to strike his testimony.

The evidence shows that the collision occurred near the center of a curve. The curve is banked with the low side to the east. For the northbound vehicle (plaintiff’s), the curve was to the right; for the southbound vehicle, the curve was to the left. Both vehicles approached the curve at a speed of approximately 40 miles per hour. It was nighttime, and dark, and the road was wet. The tractors passed without mishap, and the left side of the northbound trailer collided with the left side of the southbound tractor and trailer. Both drivers testified that as the tractors passed, they were on their own sides of the road. Plaintiff’s driver stated that he felt an impact, his unit started bouncing around, the impact had knocked the air line loose and he had no brakes, and his vehicle rolled to a stop about 30 yards down the road, and came to rest partly on the east side of the pavement and partly on the east shoulder. He stated that he was “pretty sure” his trailer had not skidded, and he would have felt it, had it skidded.

Defendant’s driver, Tharp, testified that the tractors passed without colliding, each tractor v/as on its own side of the road, and when the tractors passed, he saw the “tail end” of plaintiff’s trailer sliding toward him, in the west or southbound lane. He stated that both his tractor and trailer, at all times, were in the southbound lane. His vehicle came to rest on the west shoulder.

A State Trooper, called to the scene, testified that the road was very slick, that there were gouge marks on the pavement which had been made by the vehicles, and he was unable to determine which unit was across the center line.

Plaintiff called two additional witnesses, who testified they were in an automobile traveling south behind defendants’ tractor-trailer, but they did not know on which side of the highway the impact occurred.

“The ruling on the motion for directed verdict is tested by taking only the evidence favorable to plaintiff and drawing legal inferences most favorable for him to decide whether there is any evidence to prove the elements of his case.” Wilinski v. Belmont Builders, Inc., 14 Ill App2d 100,103,143 NE2d 69. .

“Reasonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence.” Stowers v. Carp, 29 Ill App2d 52, 63, 172 NE2d 370.

In Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28, at page 63, this court said: “A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Romines v. Illinois Motor Freight, Inc., 21 Ill App2d 380, 158 NE2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. Ritter v. Hatteberg, 14 Ill App2d 548, 145 NE2d 119, (1957). Manifest means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 72 NE2d 705 (1947).”

We have examined the testimony and the photographs, and applying the above stated rules to this record, we conclude that the trial court did not err in denying defendants’ motions for directed verdict, and the verdicts are not against the manifest weight of the evidence.

During the first day of trial, on Monday, April 19,1965, plaintiff called as its second witness, one James Herod. Defendants’ counsel asked for a recess, and the court and counsel retired into chambers. Defendants’ counsel stated to the court that the name of James Herod had not been furnished in answer to their interrogatories, he had not been listed in plaintiff’s pretrial conference memorandum, filed on April 15, 1965, and the first notice to defendants of plaintiff’s intent to call Herod as a witness was in a telegram which defendants’ attorney received on Saturday, April 17, 1965. Sunday, April 18, was Easter. Defendants moved to exclude Herod as a witness.

Plaintiff’s counsel advised the court that he had sent the telegram in question on April 16th, upon learning, that day, that Herod could testify to an oral admission made by defendant, Tharp, driver of defendants’ truck.

The court denied defendants’ motion and permitted Herod to testify. He stated that he was a self-employed, independent adjuster, and was employed by plaintiff to investigate the collision between plaintiff’s and defendants’ trucks. He interviewed defendant, Tharp, twice. The first interview was in the hospital at Chester, at about 9:00 or 10:00 a. m. on the morning following the collision. He testified that the substance of what Tharp told him was: “Well, the main thing he brought out was that he was driving down the highway and that he met two vehicles and as soon as these two cars passed he reached over to get a pack of cigarettes or get a cigarette out of a pack, and as he raised up it happened — it was right in front of him.”

He saw Tharp again approximately a week later, at Tharp’s home in Barlow, Kentucky. As to what transpired on that occasion, he testified: “First of all I got his name and that sort of information and again went over the facts of the accident, and basically he wasn’t certain as to exactly what happened, but he says he was going down the highway and he reached over, indicating that the cigarettes were in the seat, to get a cigarette and as he looked up he said it was right in front of him.”

Defendant, Tharp, testified that he could not remember anything that happened during the first five days he was confined to the Chester Hospital, and could not remember whether or not he had any visitors during that period. He stated that when Mr. Herod came to his home, he did not discuss the accident with him, and did not make the statement about which Herod testified.

Margaret Tharp, wife of defendant, Andrew Tharp, testified that she was notified of the collision shortly after it occurred, that she went to the Chester Hospital, that during the first 5 days of defendant, Tharp’s, hospitalization he was unconscious and talked to no visitors, that Herod called at the hospital and was in Tharp’s room briefly but that Tharp, at the time, was not conscious. She testified further, that Herod called at their home but Tharp made no statement at that time.

The order and notice setting this case for pretrial conference contained the following provisions:

“1. At that time and place each party shall furnish to the opposing party a list of all witnesses, having knowledge of the facts, which you plan to use at the trial of this cause, and that upon subsequent discovery of any additional witnesses whom you will use in the trial, the names of such witnesses shall be furnished to the opposing party not less than two days prior to the trial. That in the event such witnesses’ names are not furnished to opposing counsel at the pre-trial conference, their testimony will not be admitted except upon proof to the satisfaction of the Court that they were unknown to counsel at the time of the pre-trial conference.”
“4. It is further ordered that any motions for discovery depositions after the pre-trial conference will be automatically denied by the Court. Also any written interrogatories submitted to opposing parties after the pre-trial conference shall be denied.”

The interrogatory submitted by defendants reads:

“1. State the name and last known residence address of each person having knowledge of the facts alleged in the complaint filed herein by Frozen Food Express.”

Plaintiff argues that this form of interrogatory is improper, and in support of its contention relies on Reske v. Klein, 33 Ill App2d 302,179 NE2d 415, and Grant v. Paluch, 61 Ill App2d 247, 210 NE2d 35. The interrogatory here is clearly distinguishable, in that in Reske, the information requested was the names and addresses of persons having “knowledge of the relevant facts,” and in Grant, the interrogatories asked for the names and addresses of “persons having knowledge of relevant facts,” and “Who were present or who witnessed the occurrence.” Here, the interrogatory was broad enough to include Herod, who purported to have obtained an admission from Tharp.

The question of what action is appropriate under these circumstances, has been the subject of discussion in numerous opinions of our courts of review. Supreme Court Rule 219(c) vests the trial court with power to enter “such orders as are just,” including barring the testimony of a witness. In these instances, as with many other problems which arise in the course of a trial, the trial judge must have broad discretionary power, Wright v. Royse, 43 Ill App2d 267, 193 NE2d 340; Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 216 NE2d 14. The question for the reviewing court is whether in its ruling, the trial court abused its discretion, Wofford v. DeVore, 73 Ill App2d 92, 218 NE2d 649.

The defendants argue that they were entitled to rely on the pretrial order, and are correct in their contention that Herod was known to plaintiff long before the pretrial conference. Plaintiff admits the employment of Herod to investigate the case, but it is plaintiff’s counsel’s contention that he had no knowledge of the alleged admissions prior to April 16th, and sent the telegram to defendants’ attorneys immediately upon obtaining the information.

The defendants knew on the Saturday preceding trial, that Herod might be called as a witness. Admittedly, little could be done on that day, or on Easter Sunday, in the way of interrogation of Herod, or any investigation of his connection with the case. The record shows that defendants announced “Ready for trial” on Monday morning. They made no request for continuance, and did not advise the court of what had transpired. Had the court been informed that defendants desired to take Herod’s discovery deposition, and would then require some additional time to investigate the matters about which he was deposed, a refusal to continue the case for a reasonable time for these purposes would have presented for review, an entirely different question, than is presently before us. In many situations, recessing the trial, and making the witness available for interrogation as to the substance of his testimony might obviate the need for a continuance, since the testimony might be merely cumulative, or pertinent to an issue on which the inquiring party was prepared to meet the evidence. A party, in these circumstances, should ascertain the nature of the testimony which the witness will give, and may not, safely, answer ready for trial, and gamble on the trial court’s excluding a witness. We have examined the transcript of what was said in chambers, and although counsel stated that had he known of Herod earlier, he would have taken his deposition, and thereafter investigated the circumstances surrounding his interviews with defendant, Tharp, the record shows that defendants made no motion for continuance, did not request a recess and an opportunity to interview Herod, and did not move for a mistrial. The sole relief asked was exclusion of Herod’s testimony, and under the circumstances shown in this record, the refusal of the trial court to grant this relief was not an abuse of discretion.

For the reasons herein stated, the judgment of the Circuit Court of Marion County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Mario Carnaghi, d/b/a Mario’s Package Liquor Store, Plaintiff-Appellant, v. State of Illinois Liquor Commission and Robert L. Butler, Local Liquor Control Commissioner of Marion, Williamson County, Illinois, Defendants-Appellees.
    Gen. No. 66-105.
    Fifth District.
    January 23, 1967.

      Harris, Holbrook & Lambert, of Marion, for appellant.
    Robert L. Butler, of Marion, for appellees.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of Williamson County, Illinois, affirming the order of the State of Illinois Liquor Control Commission, which, in turn, had sustained the order of the Local Liquor Control Commissioner, suspending the liquor license of Mario Carnaghi, d/b/a Mario’s Package Liquor Store, for ten days for allegedly having sold liquor to a minor.

The appellant contends that the State of Illinois Liquor Control Commission failed to conduct a trial de novo as required by Ill Rev Stats, c 43, § 153, and, instead, merely held a hearing to determine if there was evidence to sustain the order of the Local Liquor Control Commissioner.

The order of the State Commission provided in part that:

This Commission having heard and considered the evidence presented by the parties to this appeal at the hearing held at Springfield, Illinois, and being fully advised in the premises, FINDS:
1. That the evidence adduced at the hearing before the Commission sustained the order of suspension as entered by the Liquor Control Commissioner of the City of Marion, Illinois.
2. That no sufficient cause or reason has been presented to this Commission as to why the said order of suspension should be reversed or set aside.
IT IS THEREFORE ORDERED that the Appeal of MARIO CARNAGHI, d/b/a Mario’s Package Liquor Store, 106 N. Court Street, Marion, Illinois, from the aforesaid order of suspension, be, and the same is hereby denied.
IT IS FURTHER ORDERED that the said order of suspension entered by the Liquor Control Commissioner of the City of Marion, Illinois, be, and the same is hereby SUSTAINED.

The language of this order is identical to the language of the order which was considered in Grab It Here Package Liquor Store v. Illinois Liquor Control Comm., 53 Ill App2d 31, 202 NE2d 357. In a well-reasoned opinion by Judge Culbertson, the court stated that:

Under the Statutes (Ill Rev Stats 1963, c 43, Sec 153), the appeal to the State Liquor Commission is required to be tried de novo. . . . Apparently, on the determination of this cause the State Commission had treated the matter as though they were determining the propriety of the Local Commissioner’s order, rather than exercising an independent judgment as the result of a trial de novo. While testimony of witnesses was heard, the order only reflects a review of the propriety of the Local Commissioner’s decision. A trial de novo of the type contemplated by the Statute should be one which is had with the same effect and intent as if no action whatever had been instituted in the Court below (Bley v. Luebeck, 377 Ill 50, 60, 35 NE2d 334). (Emphasis added.)

We believe that the reasons stated therein are quite applicable to the present case, especially since the language of the orders is identical.

Appellee argues that the State Commission need only determine whether the Local Commissioner abused his discretionary power and whether he acted arbitrarily and without good cause. Daley v. License Appeal Commission, 63 Ill App2d 43, 211 NE2d 573, Roberts v. Illinois Liquor Control Commission, 58 Ill App2d 171, 206 NE2d 799 and Day v. Illinois Liquor Commission, 39 Ill App2d 281, 188 NE2d 883, rely upon Daley v. License Appeal Commission, 11 Ill App2d 421, 138 NE2d 733. The Daley case, 11 Ill App2d 421, 138 NE2d 733, interpreted Ill Rev Stats, c 43, § 153, which at that time provided that “the matter of the propriety of such order of action of such local commission shall be tried de novo. . . .” Since then, our legislature has amended this statute to provide that “the matter of such order or action of such local liquor control commissioner shall be tried de novo. . . .” Ill Rev Stats, c 43, § 153 (1957). Hence, the Daley case, and those cases which rely upon it, do not reflect the proper interpretation of the statute requiring a trial de novo on the matter of the Local Commissioner’s order.

For the foregoing reasons, the judgment of the Circuit Court is reversed and remanded for action not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Vandever, Defendant-Appellant.
    Gen. No. 66-42.
    Fifth District.
    January 14, 1967.
    Rehearing denied February 8, 1967.
    Robert D. Albright, of Salem, for appellant.
    No brief filed in behalf of appellee.
   MORAN, P. J.

This is an appeal from the judgment of the Circuit Court of Marion County, Illinois, sentencing the defendant, John Vandever, to confinement in the Illinois State Penitentiary for a term of not less than three nor more than ten years and denying his motion for a new trial. He had been indicted and found guilty by a jury on charges of burglary and theft.

This court wishes to commend appointed counsel for writing an excellent brief on behalf of the indigent defendant in this case. However, no answering brief has been filed in this court on behalf of the People in support of the judgment of the trial court. This default has placed an undue burden on this court and is also unfair to the trial court. Therefore, while we commend appointed counsel, we deplore the failure of the State’s Attorney of Marion County to file a brief in this cause. We have had to examine the record and consider the law involved without the customary assistance of counsel for the State.

Two issues are raised for our consideration: (1) Whether the trial court erred in not granting a new trial after allegedly new evidence was discovered, and (2) whether the trial court erred in granting a single sentence for the two counts of burglary and theft, rather than a separate sentence for each count.

“A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion.” People v. Baker, 16 Ill2d 364, 158 NE2d 1, at 373-374. In order to determine whether the trial court abused its discretion, it will be necessary to review the evidence introduced at the trial and the allegedly new evidence.

Roy E. Ross testified that, after a visit to his farm by the defendant and two other men, he noticed that certain items of his property were missing, including a screw-type jack, a log chain, a battery charger, a five-gallon can of transmission grease, a box of tire chains, and a pressure grease gun. He also testified that he later saw the jack in a garage on the property where the defendant was living and the log chain in the rear of the defendant’s car, also located on the property, and that he saw the other items at the Centralia police station, where the police had brought them after finding them at the home of Melvin Dissler. Dissler had initially been joined as a defendant with Vandever, but he had received a separate trial and had been found guilty of burglary and theft. With regard to the eight-foot log chain, Ross gave a very detailed description, stating that there were no hooks on either end, that there was a sharp dent in one of the links near the end of the chain, and that one of the links had been badly worn by having been dragged over a road.

The testimony of Ross was corroborated by the Deputy Sheriff of Marion County, who testified that he had found two chains in the car owned by the defendant, one of which Ross identified as his property.

Doris McElroy, a woman who was living on the same property as the defendant, testified that she had not seen the chain before the police found it in the rear of the defendant’s car, but added that the defendant owned a chain larger than eight feet in length and that he kept it in his car.

The new evidence consisted of Melvin Dissler’s testimony that the police had taken two chains from the defendant’s car, one short chain owned by the defendant and one longer chain, which Dissler said that he owned and had placed in the rear of the defendant’s car. Dissler described the chain as about eight feet in length, without hooks on either end, and smooth, without any identifying marks. This evidence was brought to the attention of the lower court at the hearing on aggravation and mitigation, after the jury had found the defendant guilty of burglary and theft.

“To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to the trial by the exercise of due diligence.” People v. Baker, supra, at page 874. We do not believe that the new evidence would change the result on retrial. Melvin Dissler testified that the chain he owned had no identifying marks, except that there were no hooks on the ends. He said that the chain was smooth. Roy Ross, on the other hand, identified and described the chain which was taken from his property, indicating there were two clear identifying marks. Then too, as the trial court pointed out, “Anything this witness would say about this case would be considered of very little or no value as far as the Court is concerned, after he himself has already been sentenced.” In view of these factors, we believe that the trial court acted within its discretion in refusing to grant a new trial.

The contention that the defendant should have been sentenced on each of the two counts separately is answered in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.