author: SMITH, J.

text:
    Frank Richard Netherton, Plaintiffs-Appellants, v. Arthur Arends and Edmund Dorner, Defendants-Appellees.
    Gen. No. 10,822.
    Fourth District.
    March 31, 1967.

      Looker and McKnelly, of Watseka (Robert D. MeKnelly, of counsel), for appellants.
    Mitchem, Hendrix & Aldeen, of Urbana (Charles W. Hendrix, of counsel), and Phillips, Phebus, Tummelson and Barth, of Urbana (Hurshal C. Tummelson, of counsel) , for appellees.
   SMITH, J.

Plaintiffs, husband and wife, filed a four-count complaint against defendants, landlord and tenant, seeking damages to plaintiffs as a result of injuries sustained while in the performance of plaintiff-husband’s duties as a fireman. Motions were directed to all four counts, an amended complaint was filed, and motions directed to it were allowed. Plaintiffs elected to stand on their amended complaint and a judgment in bar was entered as to each count. The appeal is from such judgment order.

The fate of this complaint and, ergo, this suit hinges upon two propositions: The first is whether facts are alleged creating any duty on the defendants or either of them. The second is whether the injuries sustained were proximately caused by any act or omission of the defendants or either of them. Count I of the complaint is a claim by the injured fireman against the landlord. Count II is a claim by the fireman’s wife against the landlord for loss of consortium. Count m is the fireman’s claim against the tenant. Count IV is the wife’s claim against the tenant for loss of consortium.

The acts of negligence charged are substantially as follows: (A) Caused or knowingly permitted large quantities of inflammable straw to be placed against the foundation of the dwelling “in such manner as to create a fire hazard”; (B) a like charge as to having large quantities of highly inflammable and volatile gases; (C) a like charge as to having large quantities of combustible plastic materials; (D) a like charge as to having certain acids; (E) a like charge as to having ether; (F) a like charge as to having gunpowder, and (G) otherwise negligently and carelessly maintained said premises so as to cause or permit the same to catch fire. Paragraph four then alleged that as a direct and proximate result of said negligent acts or omissions, a fire “occurred on said premises and in said dwelling.” Paragraph five alleged that “as a direct and proximate result of one or more of the aforesaid negligent acts or omissions on the part of the defendants, he [plaintiff fireman] was overcome and severely and permanently injured by the inhalation of noxious and dangerous fumes, gases and smoke produced by said fire.”

The complaint has as its cornerstone Dini v. Naiditch, 20 Ill2d 406, 170 NE2d 881, where our • Supreme Court first established the status of a fireman as that of an invitee and imposed the duty upon the owner or possessor of a building to not negligently injure him. In Dini, the primary duty was incubated in nine violations of an ordinance regulating the maintenance of buildings, but leaves the clear implication that there could be circumstances where a duty at common law exists. In the instant complaint there is no charge of either ordinance or statutory violations and thus the duty to an invitee must have its origin in a common-law duty. Does this complaint charge facts from which a common-law duty arises? We think not.

Paragraph four alleges that the negligent acts or omissions of the defendants were the direct and proximate cause of the fire on the premises. As alleged they were the direct and proximate cause of the event which brought the fireman to the premises. We think we may judicially observe that the negligent acts or omissions of an owner or occupier frequently causes fires which bring the fireman to the premises. The duty is then imposed upon such owner or occupant to not negligently injure the fireman after he gets there. In Dini, the plaintiff was injured not because of the fire itself or any of the causes of the fire, but because a defective stairway collapsed. The fireman was where he had a lawful right to be and it was an inadequately constructed stairway which caused the injury. In Meiers v. Fred Koch Brewery, 229 NY 10, 127 NE 491, the fire chief proceeded to the property. While walking in a driveway in the dark, he fell into a coal hole and was injured. Liability was predicated upon the defendant’s failure to provide adequate lighting and a safe passageway. In Shypulski v. Waldorf Paper Products Co., 232 Minn 394, 45 NW2d 549, a defective wall fell upon and injured the fireman. Defendant, having knowledge of the defect and the opportunity to warn the fireman, was held liable for failure to warn of a hidden peril. These cases, as well as Dini, illustrate the type of circumstances or conditions where the common law has erected a duty to an invitee fireman. In each instance the negligent act or omission causing the fire was not the act or omission causing the injury to the fireman. We do not think that Dini holds or intended to hold that negligently creating a fire hazard or causing a fire ipso facto creates a liability upon an owner or occupant to an invitee fireman for injuries received in the performance of his duties. We know of no court that has. As we read Dini the condition of the premises (in multiple violations of a municipal code “intended to prevent a disastrous fire or loss of life in case of fire”) made a fire reasonably foreseeable and the condition of the stairway made injury or loss of life to one engaged in fighting the fire reasonably foreseeable. We know of no rule of law or common practice which prohibits the possession of the materials described in this complaint in or about a habitation. The mere having of such materials on the premises standing alone even though knowingly done creates no foundation for a charge of negligence. The manner or method of keeping, containing, or using such materials might pose a hazard to an invitee to the premises. This complaint fails to charge how or in what manner they were kept, maintained, contained or used. It does not allege how they were in any manner hazardous to an invitee. It does allege that “under the circumstances then existing it constituted negligence” but does not state those circumstances. It further alleged that they were placed or remained in the dwelling “in such manner as to create a fire hazard”, an allegation which the trial court in his memorandum properly characterized as a conclusion of the pleader. Why or how they created a fire hazard is not stated.

Even more elusive in the complaint is why or how they proximately caused the plaintiff to be “overcome and severely and permanently injured by the inhalation of noxious and dangerous fumes, gases and smoke produced by said fire.” There is no charge that the fumes, gases or smoke produced by the fire were unusual in any manner or different in type, quantity, quality or amount than those of any ordinary fire. In the absence of such a charge, the hazards which the fireman faced were only those hazards incidental to the employment that was his. In the absence of such a charge the duty of the defendants is no different than that of any owner or occupant in any residential fire. To hold otherwise is to open the sluice gates to a liability where none has heretofore existed. To hold otherwise is to add a second layer to the cake and say that negligently causing a fire is the proximate cause of injury to the fireman without alleging why or how or in what manner this is so. Epitomizing, the duty of an owner or occupant of premises to an invitee fireman is a duty to warn of known latent defects in the premises which with a reasonable degree of foreseeability might cause injury to him, or to avoid defects in the premises which with a reasonable degree of foreseeability might cause injury either to him or any other invitee, or to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the express or implied invitation. 38 Am Jur, Negligence, 96, p 754. In our judgment this complaint fails to allege any facts or circumstances encompassing any of these situations. Such being the case, no duty arises and no cause of action exists for there is no duty upon whose breach a cause of action can subsist.

The action of the trial court in dismissing the several counts and the judgment entered in bar is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Keiner, Defendant-Appellant.
    Gen. No. 50,416.
    First District, First Division.
    April 3, 1967.
    Charlotte Adelman, of Chicago (Leonard Kaplan and Arthur A. Wolfinsohn, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendant was found guilty of the crime of indecent solicitation of a child after a bench trial and sentenced to a term of 30 days in the house of correction. He was charged with violation of chapter 38, section 11-6(a):

“(a) Any person of the age of 17 years and upwards who solicits a child under the age of 13 to do any act, which if done would be an indecent liberty with a child or an act of contributing to the sexual delinquency of a child commits indecent solicitation of a child.”

The defendant contends by this appeal that the State failed to prove the defendant’s age at the time of the offense and failed to prove beyond a reasonable doubt that the defendant solicited Duane Dally, a boy under the age of 13 to participate in an act of deviate sexual conduct.

This court will consider the defendant’s second contention first. Offenses of the character charged in the complaint before us tend to shock. The courts must be ever mindful that such offenses, however shocking, must be proven beyond all reasonable doubt.

The complaining witness, Duane Dally, a boy of 12 at the time of the alleged offense testified that he and two of his equally youthful boy friends were invited to the defendant’s garage on Saturday, September 12, 1964, between the hours of 12:00 noon and 1:00 p. m. The boys left returning shortly thereafter with another boy, Larry Lannen. They were then led to a second garage where the defendant allegedly solicited them. Duane testified that he told his parents the same day. A police officer came to his home a week later and questioned him. The complaint in this case was made November 9, 1964.

Examination of the report of proceedings compels us to conclude that the State failed to prove the defendant guilty beyond a reasonable doubt. We are mindful of the ages of the defendant and his three youthful boy friends. The trial took place on December 28,1964, approximately three and a half months after the date of the defendant’s alleged offense. This report indicates a wide disparity in the testimony of the complaining witness and the other boys.

Duane testified that he was in two garages; one wooden, the other brick. He stated that his friends Tom Regan and James Norris were with him. James Norris, age 14, did not remember if he was with Duane on September 12. He was in one garage which was wooden. Larry Lannen, age 11, testified that he did not hear any conversation between the defendant and Duane. He was in two wooden garages and did not remember it was Saturday as stated by the others. None of the boys were touched. The complaint is based on Duane’s testimony, “He asked us if we wanted a blow,” and James Norris’ words, “He wanted to blow us.”

Two witnesses testified for the defense that the defendant was employed on September 12 from 9:00 a. m. until 5:00 p. m. He lunched between 11:30 a. m. and 12:00 noon with one of them. The defendant testified that on a previous occasion, early in September at about 7:30 p. m., three boys came to his garage. It was raining. They wanted to come in out of the rain. The defendant was painting and didn’t want any dust raised in the garage. He testified further, “the only thing that might have been said to them when we told them to get out, we might have said blow or something.”

In People v. Nunes, 30 Ill2d 143, 195 NE2d 703 (1964) at page 146, our Supreme Court said:

“It is axiomatic that a charge of indecent liberties is an accusation easily made, hard to be proved, and harder to be defended by the party accused. (People v. Hinton, 14 Ill2d 424.) In such cases reviewing courts are especially charged with the duty of carefully examining the evidence, and while due weight must be given to the judgment of the jury as to the credibility of the witnesses, it is our duty to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and create an abiding conviction that he is guilty of the crime charged.”

We find that the evidence here raises a reasonable doubt as to whether the defendant was guilty of indecent solicitation. It will therefore not be necessary for this court to consider the question of proof of the defendant’s age.

The judgment of conviction is reversed.

Judgment reversed.

MURPHY, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ted Hayes, Defendant-Appellant.
    Gen. No. 50,450.
    First District, First Division.
    April 3, 1967.

      Neil H. Adelman, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

After a bench trial, defendant was found guilty of unlawful possession of a narcotic drug, and he was sentenced to two to five years. On appeal, he contends his motion to suppress evidence was erroneously denied, and that he was not proved guilty beyond a reasonable doubt.

The evidence shows that on March 20, 1964, at 8:00 a. m., four Chicago police officers were conducting a surveillance of the washrooms of the DuSable Hotel in Chicago, looking “for addicts who subject themselves off the hallway there.” Police Officer Lartheran Lawson testified that while he was standing on the third floor, he saw the door of room 317 open, and he observed a man, identified by him as the defendant, Ted Hayes, “standing at the dresser with a hypodermic outfit in his hand.” The officer entered the room and “grabbed the outfit from his hand.” He turned and saw three more persons in the room and “noticed three tinfoil packs on the floor” about a foot away from defendant. Of the other men, the nearest one to the defendant was about four feet.

The officer further testified there were two more “hypodermic outfits” in the room, and he saw several other objects connected with the use of narcotics: a cooker for preparing heroin for injection, and three hypodermic needles and eyedroppers. The cooker and one needle were found on the dresser near which the defendant was standing when arrested. All of the occupants of the room were arrested, and they denied ownership of the tinfoil packets and the other objects. The contents of one of the tinfoil packets was field tested by the officers while at the hotel, and it was found to be “positive.”

The objects found in room 317, including the three tinfoil packets, were taken by Officer Lawson to the Crime Laboratory and returned by the laboratory to him on March 21, 1964, in a sealed envelope. He opened the envelope in court and identified the objects contained in it as the items found in room 317 on March 20, 1964. Officer Lawson further stated that the defendant told him he had rented the room because he and his wife had separated, but he was not staying there on March 20th and had lent the room to Nick Stewart.

After the items found in room 317 were identified by Officer Lawson, defendant made a motion to suppress the evidence on the theory that the search was made without a warrant and unreasonable because the alleged “hypodermic outfit” seen by the officer in the hand of the defendant was a medicine dropper (eyedropper) and not a “hypodermic outfit.” After a consideration of the evidence and the arguments of counsel, the court denied the motion and later received in evidence all of the exhibits identified as being seized at the time of defendant’s arrest in room 317, which included the three tinfoil packets.

The evidence for the prosecution consisted of the testimony of Officer Lawson, a stipulation that the testimony of the other officers would be the same as that of Lawson, the exhibits found in room 317 and covered by the testimony of Officer Lawson, and a stipulation that “three foil packets” were submitted to the Chicago Police Crime Detection Laboratory, and the contents of one was found to be heroin.

Defendant testified that he was arrested in room 317 on March 20, 1964, by Officer Lawson; that he rented the room on March 17th, because he had separated from his wife, and he slept there one night and part of the next day; that he told the clerk he was going back to his wife, and that he was going to let Nick Stewart occupy the room. He said he went up to the room to tell Nick that the clerk would not take the room out of his name until the week was up, and “when I entered the room, there was five ‘junkies’ in there shooting dope. I told them they would have to get out of the room because the room was still in my name even though I gave it to Nick. We had a big argument. So I told Nick that he would have to take his bunch out of the room. As he opened the door to do as I suggested, this officer and the rest barged into the room. That is how the door became open. . . . When they came in, he found the packages on the floor under Jack Trent.”

A defense witness, an employee of the DuSable Hotel, testified that on March 20, 1964, she rented room 317 to defendant, and at about nine o’clock on the morning of the 20th, defendant told her he had turned the room over to Nick Stewart, but she did not change the name of the occupant from Hayes to Stewart until March 24th, when “Mr. Hayes’s rent was up.”

Considered first is defendant’s contention that “the unauthorized entry into and search of room 317 were not incident to a lawful arrest since the arrest, based solely on the officer’s viewing of defendant’s holding of an eyedropper, was not based on probable cause. The Fourth and Fourteenth Amendments, as well as Article II, Section 6 of the Illinois Constitution, therefore, required exclusion of the evidence obtained as a result of the search. Failure to so exclude this evidence requires reversal of defendant’s conviction.” Authorities cited include Henry v. United States, 361 US 98 (1959); Brinegar v. United States, 338 US 160 (1949); Johnson v. United States, 333 US 10 (1948).

In Henry v. United States, it was held that the act of loading cartons into an automobile did not constitute probable cause for the arresting officers to believe that defendants had committed a theft, even though it was later proved that the cartons had been stolen. On p 104, the court said:

“The fact that packages have been stolen does not make every man who carries a package subject to arrest nor the package subject to seizure. The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband.”

From this defendant argues: “[W]e submit that the fact that an eyedropper may be used to inject narcotics does not make every man who holds an eyedropper subject to arrest nor the eyedropper subject to seizure. The police must have reasonable grounds to believe that the particular eyedropper held by a citizen is being used for injecting narcotics. . . . [Officer Lawson] might have had a suspicion, but he could not have had a reasonable belief. Probable cause was wholly lacking.”

The State accepts defendant’s authorities but disputes defendant’s analysis of the facts and his application of the law to those facts. The State argues there was no search in the present case. All of the contraband seized was in open view of the police officers once they entered room 317, and the only question is whether the entry of the officers was justified.

The State argues that when experienced police officers, assigned to narcotic duty and on patrol in a hotel frequented by narcotic addicts, see through an opened door a man “standing at the dresser with a hypodermic outfit in his hand,” those officers have a sufficient and reasonable basis for the belief that the man in question was committing a crime, even though the object in his hand was later found to be an eyedropper. We agree. The officers who were seeking Narcotic Act violations were familiar with the “hypodermic outfit” used by narcotic addicts, and its essential parts. What they believed they saw through the door opened by one of the room inmates, a “hypodermic outfit” in defendant’s hand, although an essential part (the needle) was missing, was sufficient for them to reasonably believe that a criminal offense had been or was being committed, and that defendant was the person who had or was committing it. As said in People v. Barbee, 35 Ill2d 407, 220 NE2d 401 (1966), at p 411:

“[T]he legality of the conduct of the officers in this case is to be determined upon an appraisal of the situation that confronted them, and not upon the success or lack of success of their efforts.”

Also, reasonable cause to make an arrest does not require that quantum of proof necessary to sustain a conviction. (People v. Novak, 33 Ill2d 343, 346, 211 NE2d 235 (1965).) We hold, therefore, that the officers were lawfully present in the room where the tinfoil packets were seen on the floor and seized by them. It is not a search to observe that which is open to view (People v. Davis, 33 Ill2d 134, 138, 210 NE2d 530 (1965)), and the officers were not required to overlook the packets, known to them to be a type of container used for the dispensing of narcotic drugs. We conclude the court properly denied the motion to suppress this evidence.

Defendant next contends that this record is “completely barren” of proof that the alleged narcotics “were in the immediate and exclusive control of defendant.” (People v. Nettles, 23 Ill2d 306, 307, 178 NE2d 361 (1961).) Defendant argues that Officer Lawson did not see defendant throw or drop the packets on the floor, and defendant denied ownership and the others present were narcotic addicts.

It is undisputed that defendant rented room 317 and was found in it on March 20th, although he testified that he was not using the room and had turned it over to Nick Stewart. In People v. Nettles, 23 Ill2d 306, 308, the court said:

“We are of the opinion, therefore, that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt. . . . The requirement that defendant’s guilt be proved beyond a reasonable doubt does not mean that the court may disregard the inferences that flow from the evidence before it.”

Applying these principles here, we believe the trial court was presented with facts and circumstances sufficient to find defendant guilty of unlawful possession of narcotics beyond a reasonable doubt.

Finally, defendant contends that the State failed to prove that the substance in the tinfoil packets was narcotic, and that the trial stipulation entered into “completely failed, however, to relate the packets and powder analyzed at the laboratory to the tinfoil packets seized in room 317 and admitted into evidence.” Cited in support is People v. Judkins, 28 Ill2d 417, 420, 192 NE2d 848 (1963), where the facts and stipulation were somewhat similar. The instant stipulation was as follows:

“If Charles Vondrak of the Chicago Police Crime Detection Laboratory were called, he would testify that Patrolman L. Lawson of the 2nd District submitted the following exhibit to the laboratory for examination: three foil packets, one tested containing thirteen hundred grams of unknown white powder hereinafter referred to as Exhibit Q-l. . . . Exhibit Q-l is diacetyl morphine hydrochloride, commonly referred to as heroin. And that these were the items that were submitted to the Chicago Crime Laboratory by Patrolman L. Lawson, Officer Lawson.”

The record shows that Officer Lawson testified it was he who took the exhibits identified by him and received in evidence, to and from the Crime Laboratory. We note, also, that the stipulation stated that “these were the items that were submitted to the Chicago Crime Laboratory by Patrolman L. Lawson, Officer Lawson.” It is a fair inference that the last sentence of the stipulation was intended to mean the “three foil packets” identified by Officer Lawson as having been found in room 317 on March 20th. We believe the record here shows the required continuity of possession and positive identification of a narcotic drug. See, also, People v. Davis, 33 Ill2d 134, 210 NE2d 530, where the court held that a somewhat similar set of facts showed sufficient continuity of possession so as to establish a narcotic drug, and said (p 139):

“No question was raised as to the identity of the parcels in the trial court. Under previous decisions of this court such proof is sufficient to complete the State’s case.”

For the reasons given, we conclude that defendant was proved guilty beyond a reasonable doubt of the possession of a narcotic drug, as charged. Therefore, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


text:
    Marshall Field and Company, a Corporation, Plaintiff-Appellant, v. J. B. Noelle Company, a Corporation, Defendant-Appellee.
    Gen. No. 50,686.
    First District, First Division.
    April 3, 1967.

      Howard, French and Healy, of Chicago, for appellant.
    Charles F. Meyers and Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Charles M. Rush and John M. O’Connor, Jr., of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff seeks indemnification from defendant for expenditures made by plaintiff because of injuries sustained by defendant’s employees while on plaintiff’s premises. Plaintiff’s two-count complaint alleges contractual and noncontractual claims for indemnity. Judgment was entered for defendant after a non jury trial.

Defendant, an independent painting contractor, for some years had been doing the painting and decorating in the Marshall Field and Company Loop store under various contracts. The defendant had a locker room for his employees and a storage place for his paints, materials and equipment on the 13th floor, and had the privilege of using the freight elevator to transport men and equipment from the 13th floor.

On the evening of February 12, 1955, defendant was using the elevator to transport its men and equipment from the 13th floor to the budget basement. The elevator was being operated by George Pasaka, an employee of defendant, and no employees of the plaintiff were present when the elevator was loaded with 2,110 pounds of equipment and 21 men. Pasaka testified that while the elevator was descending, the car went out of control at the 7th floor. One employee of defendant testified the elevator was going 50 miles an hour when it struck bottom, and another testified that the elevator “was going three to four times faster when the accident happened.”

Eleven of the twenty-one employees of defendant brought suit against plaintiff for alleged injuries. The actions were commenced in five separate suits, in which allegations of negligence were made against Marshall Field and Company. Three of the suits resulted in verdicts or settlements in favor of the employees, and two of the suits resulted in not guilty verdicts in favor of Marshall Field and Company. One not guilty verdict was affirmed on appeal. Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520 (1959).

Plaintiff, Marshall Field and Company, seeks reimbursement for elevator repairs, amounts paid to defendant’s employees, and attorneys’ fees expended in defense of eleven personal injury claims, making a total liquidated claim of $50,155.81.

Plaintiff bases its contractual claim for indemnification on a printed form purchase order, dated and accepted by defendant on February 11, 1955. The order was prepared by plaintiff and provides on its face, in large boldface type, “CONDITIONS ON REVERSE SIDE HEREOF ARE A PART OF THIS CONTRACT. INSURANCE REQUIREMENTS: See Condition (2).” On the reverse side of the printed purchase order appears a heading “CONDITIONS” and below this, the following:

“2. INSURANCE: Contractor [Noelle] shall indemnify and save harmless Owner [Fields] against all claims for damages to property, injuries to or death of persons or employees in or about their work and to the public generally (including death resulting therefrom) and all claims arising under Workmen’s Compensation Act, and Workmen’s Occupational Disease Act. Contractor shall, prior to commencing work and at his own expense, obtain such insurance as will protect Owner, himself and subcontractors against all such risks and all other statutory and common law liability arising from or based upon injury to or death of employees, himself, or subcontractors and their employees, and the public generally, in the performance of this contract. Contractor waives subrogation rights which might accrue to him under Section 29 of Illinois Workmen’s Compensation Act. Policies shall be in companies and in form and amount satisfactory to Owner. Certificates denoting such insurance shall be deposited with Owner prior to commencement of work and shall contain an endorsement that the policies shall not be altered or can-celled without giving Owner ten days’ notice in writing. Any loss of or damage to work or materials resulting from fire, sprinkler, theft, or otherwise, until formally accepted in writing, or until paid for by Owner, shall be at the risk of Contractor.”

The defendant had not obtained any insurance which covered or protected the “Plaintiff-Owner” at the time of the occurrence. Defendant Noelle had its own coverage for (a) Workmen’s Compensation, (b) bodily injury of $50,000/$100,000, and (c) property damage of $10,-000/$50,000. A duplicate original certificate evidencing this coverage, dated April 23, 1954, had been delivered to plaintiff prior to the occurrence, and under previous work order contracts, but there were no endorsements covering plaintiff in any fashion. Plaintiff did not object to the form of the certificate nor did plaintiff make any demand or request for additional or different insurance coverage, or indicate to defendant that the insurance coverage provided was unsatisfactory.

Plaintiff contends that defendant’s breach of the agreement to provide insurance coverage for plaintiff does not absolve defendant from indemnification — “The requirement to have insurance coverage in the amount satisfactory to the plaintiff is a separate and distinct contractual provision as opposed to the provision that the defendant shall hold the plaintiff harmless. For the breach of the provision concerning the obtaining of insurance in appropriate amounts, the plaintiff would have an action but has elected not to prosecute for that breach. The insurance requirements are merely to insure that the defendant is solvent at the time indemnification is sought.” Plaintiff asserts that similar contract provisions have been held sufficient to require indemnification, even though (not admitted) plaintiff might have been found guilty of negligence. Plaintiff’s authorities on this point, including Haynes v. Montgomery Ward & Co., 47 Ill App2d 340, 198 NE2d 548 (1964), all stem from more explicit agreements, and we do not consider them in point here.

Defendant contends that the purchase order contract provided for insurance only. The face of the order states: “INSURANCE REQUIREMENTS: See Condition (2),” and on the reverse side Condition (2) “is followed by the word ‘INSURANCE’ also in boldface print; then follows a normal insurance requirement of ‘indemnity’ and ‘to save Fields harmless’ against claims.” Defendant argues that “an integral part of ‘Condition (2)’ provides: ‘. . . Contractor shall, prior to commencing work and at his own expense, obtain such insurance as will protect . . . against all such risks .... Policies shall be in companies and in form and amount satisfactory to Owner ....’” [Emphasis added.]

From the foregoing, defendant argues that “INSURANCE” means just that, and there was no separate “hold-harmless agreement.”

In ascertaining the substantial intent of the parties, this court must look to the agreement as a whole, to its nature, purpose, and the subject matter with which it deals and, if ambiguous, to the circumstances under which it was made. Generally, words in a contract are to be given their usual and primary meaning at the time of the execution of the contract. Contracts must receive a reasonable construction according to the intention of the parties if that intention can be ascertained from their language. A reasonable construction will be preferred to one which is unreasonable. (17 Am Jur2d, Contracts.) An ambiguous contract will be construed most strongly against the party who prepared the contract and chose the words used, since he is the one who is responsible for the ambiguity (Cemetery Ass’n v. Village of Calumet Park, 398 Ill 324, 333, 75 NE2d 874 (1947); 12 ILP, Contracts, §221), and, finally, indemnity and hold-harmless agreements are to be strictly construed. Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604 (1947).

It is undisputed that the contract in question was prepared by plaintiff, and from its form it is not clear that “INSURANCE REQUIREMENTS” was also intended to provide indemnity for plaintiff. Therefore, this ambiguity must be construed against plaintiff, who prepared the contract, and we hold that the instant contract referred only to insurance requirements and did not include an indemnity or hold-harmless agreement.

Next, plaintiff contends that it is entitled to common-law indemnity because its negligence was passive while that of Noelle was active. The evidence heard by the trial court was the abstract of the testimony of the evidence received in the case of Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520. From this plaintiff states, “The evidence most favorable to the defendant was that the elevator descended rapidly and out of control. This evidence is not believable when the court considers that the damage to the elevator was slight, . . . that no repairs were made to separate machinery, cables, governor or safety device; that the elevator operated properly with an overload of 30% and that the elevator was overloaded by 60%.” From this plaintiff argues that “the evidence then shows that the plaintiff was guilty of passive negligence in not equipping its elevator with a braking device adequate to control the descent of the elevator when overloaded by 60% of its capacity. But the evidence is also that the defendant was guilty of active negligence in allowing the elevator to be overloaded.”

Defendant argues that an active tort-feasor can secure neither indemnity nor contribution from another tort-feasor (McDonald v. Trampf, 49 Ill App2d 106, 198 NE2d 537 (1964)), and that the evidence here is clear that plaintiff was an active tort-feasor.

Defendant also argues that this court is bound by the decision of the trial court unless that decision is contrary to the manifest weight of the evidence. (In re Estate of Pohn, 67 Ill App2d 227, 214 NE2d 553 (1966).) We agree. We have reviewed the entire record and find that an opposite conclusion to that of the trial court is not clearly evident because “there is lacking in the instant case that clearly higher degree of culpability on the part of one of several joint tortfeasors, which would warrant placing the entire burden upon him.” Spivack v. Shara, 69 Ill App2d 22, 216 NE 2d 173 (1966).

For the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: Opinion by PRESIDING JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Cleophis Sims, Defendant-Appellant.
    Gen. No. 50,843.
    First District, First Division.
    April 3, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carl M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Radford, Otherwise Called William Rowe (Impleaded), et al., Defendants-Appellants.
    Gen. Nos. 50,874, 50,875 and 50,876.
    First District, First Division.
    April 3, 1967.
    Rehearing denied May 18,1967.

      Jay A. Schiller, of Chicago, for appellants.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

After being jointly indicted and tried before a jury, defendants were found guilty of conspiracy and sentenced. On appeal, defendants assert trial errors and that the State failed to prove the material allegations of the indictment. Defendants’ separate appeals were consolidated here.

The indictment shows that six persons were jointly indicted for the offense of conspiracy to commit theft of property in excess of $150 in value, “that is to say, they intentionally and knowingly agreed to obtain by deception control over lawful money . . . the property of the Continental Casualty Company, a corporation, intending to permanently deprive the said Continental Casualty Company of the use and benefit of said property.” The indictment further alleged the details of self-inflicted injuries, a deliberate automobile collision and the filing of actions for damages against the Keeshin Transport System, “in violation of Chapter 38, Section 8-2, of the Illinois Revised Statutes 1963.”

Of the six indicted, two testified for the State at the trial of the three instant defendants, Walter Radford (otherwise known as William Rowe), Douglas McGhee, and Raymond Howard. The jury found the defendants “guilty of conspiracy in manner and form as charged in the indictment.” Howard was placed on probation for two years, with the first 90 days to be served in the House of Correction. McGhee was sentenced from one to two years in the penitentiary. Radford was sentenced from four to five years in the penitentiary.

John Harrell and Wilson Thomas, Jr., the two conspirators who testified for the State, related in detail the planning and the execution of the injuries and the collision. Early in May, 1963, defendant Walter Rad-ford went to the house of John Harrell. Radford drove Harrell to a meeting with defendants Howard and McGhee, who, Radford told Harrell, had already agreed “about having their arms and legs broken.” Radford offered Harrell “$400 for breaking Raymond Howard’s or Douglas McGhee’s arm or leg, whichever one wanted the leg or arm broke.” Later, at Radford’s home, and in the presence of Douglas McGhee, Raymond Howard, Harrell, and Wilson Thomas, Jr., who had a broken arm in a cast, Radford told them he “had witnessed Wilson Thomas, Junior’s accident, and he had taken him to a lawyer,” who had already turned down a settlement offer of $5,000. Later that afternoon, McGhee and Howard decided not to go through with the plan.

On May 16, 1963, Radford again met with Harrell, McGhee and Howard, and said, “This is the day we are going to have the accident,” and McGhee and Howard agreed to go ahead with the plan. Later, they all met with Wilson Thomas, Jr., and he introduced Radford to Richard Singleton, and Radford “told Singleton that he could make a whole lot of money by just driving this car in a set up accident.” Radford and Harrell then picked up two cement blocks and put them in the trunk of Radford’s car. In the afternoon of the 16th, Radford said to McGhee and Howard, “Which would you want, your leg broke? Or which one wants your arm broke. The one with the leg can collect more money than the one with the arm broke.” McGhee and Howard flipped a coin to determine which one would get the broken leg, and “Raymond Howard won. He was the one that would break his leg and Douglas McGhee would break his arm.” Radford then “told Singleton that he was to be the driver of the car that was going to be involved in the accident, along with two other passengers, Raymond Howard and Douglas McGhee; . . . that he would give the signal by giving two blasts from the horn, and for Richard Singleton to get his car in front of the truck so that he could cut Richard Singleton off when the truck hit him.”

Later that evening, May 16, 1963, McGhee’s arm was placed on the two cement blocks, and Harrell broke the arm with an automobile axle. The same procedure was repeated with Howard’s leg, after some persuasion and threats. Radford, Thomas, Singleton and Harrell helped McGhee and Howard into the rear of Singleton’s car. Then Radford, with Harrell and Thomas in his car, and Singleton, with McGhee and Howard in his car, drove to the Dan Ryan Expressway, and Singleton got in front of a Keeshin Transport System truck, driven by Rex Flowers. At approximately 10:00 p. m., while southbound at about 55th Street, Radford cut off Singleton’s car, Singleton slammed on the brakes, and the Keeshin truck hit Singleton’s car. Flowers stopped the truck, put out warning flares, and “talked to some fellow who came there and wanted to know if I needed a witness to the accident. He said he saw it. He gave me a name and address.” The name was Hansen, and “I gave the card to the company, for insurance.” Flowers was informed that two men were injured.

A traffic police officer assigned to patrol the Ryan Expressway, and who arrived at the scene of the occurrence within a few minutes, testified that Howard and McGhee were in the back of Singleton’s car, conscious and moving. He noticed the skid marks were unusual, and the brake lights were disconnected. Rad-ford told him that he was a witness.

A claim representative for the Continental Casualty Company testified that on May 17, 1963, he was assigned to investigate the occurrence. He attempted to locate the one witness, Arthur Hansen, 4805 South Forrestville Avenue, Chicago, and “I didn’t find him. . . . He wasn’t living there. He wasn’t known there.” He never made contact with Hansen. Harrell testified that it was Radford who told the truck driver that his name was Arthur Hansen, and that he gave “4805 South Forrestville” as his address.

Over the objection of defendants, the court received in evidence, as State’s exhibits, certified copies of personal injury complaints filed in the Circuit Court of Cook County on behalf of Howard and McGhee for $75,-000 each. No testimony was offered on behalf of the defendants.

Considering the trial errors complained of, we find no error in the court’s denial of defendant Rad-ford’s motion for a more complete answer to his request for a bill of particulars. The State’s answers included the date, time and place of the occurrence, and offered “to furnish the statement of John Harrell which covers the details of each of these alleged transactions.” We consider that the indictment and the answers of the State sufficiently specified the particulars of the offense, so as to enable the defendants to prepare their defense. This was a matter for the sound discretion of the court, and we find no abuse of discretion in denying the motion. People v. Petrilli, 344 Ill 416, 419, 176 NE 437 (1931).

Defendant Radford next complains that he was seriously prejudiced when the State questioned Wilson Thomas, Jr., an accomplice witness, as to whom he meant when he referred in his testimony to “Willie,” and the witness answered, “Walter Radford.” He was then asked by the State, “What name do you know him by?”, and the witness responded with four alleged aliases. It is argued that this inquiry was made for the sole purpose of prejudicing the jury and calling the attention of the jury that Radford “used many aliases as is often done by men with prior criminal records.”

We agree with defendants that “it is never the duty of the State’s Attorney to resort to unfair and improper methods to secure a conviction.” (People v. Jackymiak, 381 Ill 528, 46 NE2d 50 (1943).) We have examined the record on this point, and we find no error. Defendant Radford was named in the indictment with an alias “William Rowe.” It was proper to connect the testimony about “Willie” with defendant Radford and not improper to further inquire “What name do you know him by?”, even though the answer given included four alleged aliases.

Defendants next contend that the court improperly allowed into evidence the certified copies of the two lawsuits which had been filed in the Circuit Court. The defendants argue, “These law suits were, in fact, not brought by the defendants, McGhee and Howard, as alleged in the indictment, but by McGhee’s father and next friend, Mack McGhee, and by Howard’s mother and next friend, Ora Lee Henderson. It is old established law that it is not necessary that an infant have any knowledge of a suit brought by his next friend and, indeed, it may even be maintained against his wish. . . . No presumption can even be permitted against an infant party to an action, therefore, the State has no right to even presume that the defendants knew of the existence of the law suits they are charged with having brought. The court has gone so far as to say that every presumption is to be indulged in the infant’s favor. . . . The law suits were signed by Attorneys and brought by their parents. They were, in no way, connected up directly with the defendants themselves.”

This contention is without merit. The testimony of Harrell and Thomas indicates that personal injury suits for the self-inflicted injuries were part of the plan. Howard and McGhee were then infants, which required that the lawsuits be brought in their behalf by a next friend. Furthermore, at the time of the trial both defendants were of legal age, and there was nothing in the record to indicate that the suits had been discontinued. We consider that the evidence sufficiently connected Howard and McGhee with the two complaints at law, and their admission into evidence as exhibits for the State was proper.

Finally, defendants contend, “The most grave error in the trial, and the one in which the defendants urge most strenuously that this court seriously consider, was caused by the State failing to present any evidence proving that the defendants conspired to deprive the Continental Casualty Company of their property. . . . When the party, against whom a conspiracy is aimed, is named in the indictment for conspiracy, it is not sufficient to prove a conspiracy to defraud the public generally, or any person whom the defendants might meet, but the proof must establish the defendants’ guilt of the particular charge set forth in the indictment.” Cases cited include Lowell v. The People, 229 Ill 227, 82 NE 226 (1907), where the court said (p 237):

“It cannot be said that the allegations of a conspiracy with the intent to cheat and defraud Jackson are sustained by proof of an intent to cheat and defraud the public generally.”

In People v. Mader, 313 Ill 277, 145 NE 137 (1924), the court said (p 285):

“To constitute the crime of conspiracy there must be more than one person guilty thereof, and before a defendant can be convicted of conspiracy the evidence must show that there are two or more persons guilty of such conspiracy. ... It is not sufficient to sustain a conviction on a particular charge to prove that the defendant is guilty of some other charge or of generally bad and criminal conduct, but the proof must establish his guilt of the particular charge in the indictment. Lowell v. People, 229 Ill 227.”

Defendants further assert that the State failed to produce any evidence that these defendants ever had any dealings with Continental Casualty Company, ever made a claim against the Continental Casualty Company, or ever spoke to any representative of Continental Casualty Company, either directly or indirectly.

The State asserts that it was unnecessary for the State to prove that the conspiracy was directed toward the property of Continental Casualty because “conspiracy is a victimless crime. It consists of an intentional act of agreement with another to commit an offense. It is proved by showing agreement and an overt act in furtherance of the agreement.”

The State further argues that in Illinois the identity of the intended victim of a conspiracy is not a material element of the crime of conspiracy and need not be alleged in the indictment (People v. Beeftink, 21 Ill2d 282, 171 NE2d 632 (1961)), and if the allegation was not material, it need not be proved, even though contained in the indictment. People v. Andrews, 327 Ill 162, 158 NE 462 (1927).

In People v. Peppas, 24 Ill2d 483, 182 NE2d 228 (1962), our Supreme Court said (p 486):

“It is well settled that in an indictment for conspiracy to commit a felony it is sufficient to designate the felony intended to be committed by such description as will apprise the defendants of the exact charge upon which they will be tried. It is not required that the felony be described with the same accuracy as would be required in an indictment for the felony itself. People v. Beeftink, 21 Ill2d 282, 290.”

And on page 487:

“The gist of the crime of conspiracy is the unlawful agreement to accomplish an unlawful purpose. It is, therefore, unnecessary to allege the means by which the act or object of conspiracy is to be accomplished.”

In People v. Walker, 60 Ill App2d 178, 208 NE 2d 840 (1965), this court said (p 187):

“Although the indictment did particularize the Allstate Insurance Company as the victim, the crime of conspiracy had been concluded before the initial communication with the insurer. It was sufficient to show an unlawful combination to obtain the money or property of any person belonging to the class known as the public. . . . The reference in the indictment to Allstate Insurance Company and its property ‘might be regarded as mere surplusage.’ (People v. Rogers, 303 Ill 578, 583, 136 NE 470 (1922).) . . . The specific victim of the conspiracy at the moment of the agreement was unknown to the conspirators, but it was intended to be ‘any person belonging to the class known as the public.’ ”

The instant offense of conspiracy was committed when the conspirators made their agreement and then, in furtherance of that agreement, committed the acts alleged and proved by the State. The proof by the State that Continental Casualty was the intended victim of the conspiracy might be deemed insufficient, but the inclusion of the description of Continental Casualty as the intended victim of the conspiracy was unnecessary. When the conspirators made their agreement, the specific victim of the conspiracy was unknown to the conspirators but was intended to be “any person belonging to the class known as the public,” or anyone who might be required to pay damages for defendants’ self-inflicted personal injuries, whether an insurance company, a private person or a corporation. The indictment was sufficient to enable the defendants to prepare their defense and to plead any judgment as a bar to a subsequent prosecution for the same offense. Therefore, we hold that the reference in the instant indictment to the Continental Casualty Company was “mere surplusage,” and the evidence in the record sustains the conviction of these defendants of the crime of conspiracy as charged in the indictment.

For the reasons given, the judgments of the Circuit Court against Raymond Howard, otherwise called Raymond Howard Henderson (Appeal No. 50,874), Douglas McGhee (Appeal No. 50,875), and Walter Radford, otherwise called William Rowe (Appeal No. 50,876), be and the same are hereby affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: PRESIDING JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Lee Harris, Defendant-Appellant.
    Gen. No. 51,208.
    First District, First Division.
    April 3, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


author: JUSTICE BURMAN.

text:
    In re Estate of T. B. Dukes. James Gibson, Plaintiff-Appellant, v. Mattie Williams, Defendant-Appellee.
    Gen. No. M-51,245.
    First District, First Division.
    April 3, 1967.
    Everett Simpson, of Chicago, for appellant; Oliver A. Clark and William C. Ritter, of Chicago (Lawrence E. Haliburton, Clinton 0. Sims, Glenn C. Fowlkes and Joseph W. Handy, Jr., of counsel), for appellee.
   Opinion by

JUSTICE BURMAN.

Not to be published in full.


author: ALLOY, J.

text:
    Simoniz Company, Plaintiff-Appellant, v. J. Emil Anderson & Sons, Inc., Wendnagel & Co., Inc., and Bethlehem Steel Company, Defendants-Appellees.
    Gen. No. 66-20.
    Third District.
    April 4, 1967.

      McKay, Moses, McGarr & Gibbons, of Chicago, for appellant.
    Gilbert E. Graham, Stevenson, Conaghan, Hackbert, Rooks and Pitts, and Petit, Olin, Fazio and Safeblade, all of Chicago, and Swain & Dusenbury, of Kankakee, for appellees.
   ALLOY, J.

This is an appeal from an order of the Circuit Court of Kankakee County allowing a motion to dismiss, by each of three defendants, to a complaint filed by Simoniz Company as plaintiff as against J. Emil Anderson & Sons, Inc., Wendnagel & Co., Inc., and Bethlehem Steel Company, as defendants. This cause is, therefore, before us solely on the pleadings. In the complaint filed by Simoniz Company it sought to recover $18,995.21 for damage to property resulting from the collapse of a portion of the roof of its building.

The complaint consisted of seven counts. The first three counts were directed as against defendant J. Emil Anderson & Sons, Inc., the general contractor which built the building. In these counts there were charges of breaches of express and implied warranty and negligence. In the following two counts the defendant Wendnagel & Co., Inc., as the steel erection subcontractor (which had no direct contractual relationship to plaintiff Simoniz), was charged with breach of implied warranty and negligence. In the final two counts defendant Bethlehem Steel Company, as manufacturer and supplier of the bar joists in the roof of the building (which also had no direct contractual relationship with Simoniz), was charged with breach of implied warranty and negligence.

The complaint disclosed that the building had been completed in September 1953. In the complaint filed by Simoniz, it was asserted that the design, materials and workmanship of the roof were defective when furnished in 1953. The roof segment collapsed on August 6, 1962. The complaint was filed on June 8, 1964. Each defendant filed a motion to dismiss on the ground that the action for property damage had not been filed within the time limited by law. The significant issue before this court is whether or not, on the basis of the facts as set forth in plaintiff’s complaint, such complaint was filed within the proper time limitation.

On appeal in this court, plaintiff-appellant Simoniz contends that the lower court erred in sustaining the motions to dismiss as to each of the defendants on the basis that, in each case, the cause of action did not accrue at the time of the completion of the premises in September of 1953 (the date of completion of the building and its delivery). It contends that, since the defect in construction and manufacture of the building was latent and undiscoverable, the cause of action did not accrue until the defect resulted in manifest and visible damage, i. e. when the roof actually' collapsed. Defendants all contend that the cause of action accrued in September of 1953, when construction was completed.

Defendant Anderson, the contractor, contends that the five-year statute of limitations applies (1965 111 Rev Stats, c 83, § 16), and also that the ten-year statute of limitations applies (c 83, § 17) since the complaint was filed almost 11 years after the alleged negligent act or breach of contract. It is asserted in this connection that since there was no fraudulent concealment pleaded (1965 111 Rev Stats, c 83, § 23), that the cause of action accrued at the time of completion of construction and delivery of the building. Defendant Anderson also contends that the cause of action is barred by the provisions of section 24(f), chapter 83, 1965 Illinois Revised Statutes, which provides for a four-year period of limitation for persons performing or furnishing the design, planning, supervision or construction of an improvement to real estate. Anderson also contends that the action is barred by a provision of the written contract relating to a one-year period of warranty. While we do not attach significance to this contention, in view of our determination in this case, we do not find it necessary to discuss such provision. Defendant Wendnagel set up the same defenses. Defendant Bethlehem Steel Company set up the defenses of statute of limitations and the protection of section 24(f) of chapter 83 hereinabove referred to.

It appears from the complaint that Anderson, as contractor, had undertaken by contract to erect a warehouse in Kankakee, Illinois, according to certain specifications. By the terms of this agreement, plans and specifications for this structure provided that the roof would be supported by bar joists. The bar joists were manufactured by Bethlehem. Anderson subcontracted with Wendnagel to perform the necessary steel erection work including the placement and welding of the bar joists. The structure was completed and accepted by Simoniz in September of 1953. At approximately 3:00 a. m. on August 6, 1962, a portion of the roof, being approximately 500 square feet in. area, collapsed. The complaint states that the collapse of the roof was due in whole or in part to defects in workmanship, materials or design, one or the other, or all of the causes. It also avers that inspection of the roof after the collapse revealed defects in materials, workmanship and design. It was also alleged that the Bethlehem products contained defective welds, variations from specified dimensions and were otherwise defective.

It is emphasized that Simoniz first learned of the defects when the roof actually collapsed. It was necessary for Simoniz to employ experts to conduct an x-ray examination of the steel supports to determine the cause of the collapse. The inspection disclosed, apparently, that the roof collapsed because of latent defects in design, materials and workmanship. The complaint alleges specifically that the defects in design, materials and workmanship all contributed to the collapse of the roof and all defendants are charged with contributing to these defects and are alleged to be jointly and severally responsible for the damages sustained by Simoniz. For the purposes of consideration of this case, it is presumed that the defendants are at fault as alleged in the complaint and that damage was sustained as a result of the breaches of duty of the various defendants.

It is asserted by plaintiff that while the wrongful conduct took place in 1952 and 1953, no notice or knowledge of the wrongful conduct came to the attention of plaintiff until the damage actually occurred in 1962. In seeking to meet the issues directly, Simoniz asserts that its cause of action was not barred by the general statute of limitations in actions governing recovery for damage to property. It recognizes that the general statute of limitations for actions to recover for damage to property provides that the suit must be commenced within five years after the cause of action accrues (1965 111 Rev Stats, c 83, § 16). It is contended by appellant, however, that insofar as such statute is concerned the cause of action did not accrue on September 20, 1953, when the building was completed and accepted but on August 6, 1962, when the roof collapsed, and as a consequence the action was filed well within the five-year period provided by such statute.

Appellant contends that where the nature of the wrong done is concealed or latent the statute does not begin to run until the party knows or should know that he has been injured. It is vigorously contended that this “know or ought to know” rule should be applied. Appellant cites in support of this position Urie v. Thompson, 337 US 163 (involving silicosis) and other related cases. Appellant also cites Mosby v. Michael Reese Hospital, 49 Ill App2d 336, 199 NE2d 633, where the court reluctantly adopted the prior Illinois malpractice decisions denying relief to a plaintiff. Appellant points out that the Illinois Legislature thereafter expressly adopted the “know or ought to know” rule as to malpractice cases when the section was amended in 1965 (1965 Ill Rev Stats, c 83, § 22.1). The legislature then provided that the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body and further provides, however, that no such action may be commenced more than ten years after such treatment or operation.

It is urged that this court adopt an interpretation that the cause of action did not accrue in the instant case until the roof actually collapsed. In support of this position the appellant refers to certain cases from other jurisdictions and also to the line of cases which hold that a cause of action for negligently failing to shore up mining excavations does not accrue within the meaning of the statute of limitations until the surface actually subsides (Wanless v. Peabody Coal Co., 294 Ill App 401, 13 NE2d 996; Treece v. Southern Gem Coal Corp., 245 Ill App 113). In these cases, following the old English case of Bonomi v. Backhouse, 121 Eng Reprint 652, the courts have felt that mining was of such nature that there could be no conceivable knowledge of any activity causing undermining until an actual subsidence of the land. In discussing these cases and others where consideration of the limitation period was involved, appellant points out that the purpose of a statute of limitations is to encourage one having a well-founded claim not to delay enforcing it beyond a reasonable time.

We have examined the authorities cited by appellant and the appellees as well as many others not cited by any of the parties. In the process of so doing we have sought to determine whether it is sound, on the basis of the precedents in this State, for this court to announce that Illinois, in cases of this type, was following or should follow the so-called “know or ought to know” rule. We have also been conscious of the section of the Illinois Act which provides (1965 Ill Rev Stats, c 83, § 23) that if there is fraudulent concealment of the cause of action from the knowledge of the person affected, the action could be commenced at any time within five years after the person entitled to bring the action discovers that he has such cause of action. There is no allegation that there was any fraudulent concealment in the present case. As stated by the court in Poole v. Terminix Co. of Maryland and Washington, Inc., 200 F2d 746, where the action was based on implied warranty in doing a workmanlike job of insulating certain premises against termites, the court stated at page 746:

“No contention is made in the present case upon the basis of fraud, either actual or constructive. Accordingly the general rule that limitations begin to run from the time of breach, Zellan v. Cole, 1950, 87 US App DC 9, 183 F2d 139, applies. This conforms with the purpose of statutes of limitation to bring repose and to bar efforts to enforce stale claims as to which evidence might be lost or destroyed. See Bailey v. Glover, 1874, 21 Wall 342, 88 US 342, 22 L Ed 636. In some cases no doubt this rule leads to hardship, but the rule for which plaintiff contends often would have like consequences. We must give effect to the policy which bars litigation due to contract breaches which occurred a longer time prior to the institution of the litigation than the number of years of the applicable statute of limitations.”

While we have a great deal of sympathy for the position of the appellant in this case, we feel that we are in the same position as was the court in Mosby v. Michael Reese Hospital, 49 Ill App2d 336, 199 NE2d 633. We recognize that there are a number of exceptions to the operation of the statute of limitations, but we cannot justify the conclusion that lack of knowledge on part of a claimant would be the basis for such exception. In the Mosby case the defendant hospital had left a surgical needle in the body of plaintiff during the course of an operation. The presence of the needle in the plaintiff’s body and the injury and damage were not detected for almost five years, when the plaintiff filed her complaint. The court there held that plaintiff’s cause of action accrued when the wrongful act of leaving the needle in her body was committed and her claim was thus barred by the two-year statute of limitations governing actions for personal injuries. The court reluctantly came to such conclusion and suggested that it was a problem for the legislature to determine the period within which the cause of action should be deemed to have accrued. As pointed out by appellant, the legislature acted in response to the court’s suggestion and specifically provided that in such malpractice cases, the period of limitation did not begin until the person actually knows or should have known of the facts and hurts to his body, but also inserted a limitation in a proviso that in no case shall the action be commenced more than ten years after the treatment or operation. It thus established a legislative policy in connection with malpractice cases. To carry this doctrine into the cases of the type before us, in our judgment, would amount to invading the province of the legislature. We have the same reluctance as expressed in the Mosby case and can only reiterate what was said in that case (at page 338):

“The greater weight of authority is that the statute of limitations commences when the negligent act takes place and that the statute is not tolled by the plaintiff’s ignorance of his injury.”

In the Mosby case the court also stated (at page 339):

“In Illinois it has been held (in non-personal injury cases) that a plaintiff’s ignorance of the cause of action does not delay the operation of the statute. In Lancaster v. Springer, 239 111 472, 88 NE 272, a suit to establish a trust and for an accounting, the court said:
“ ‘The failure of the complainants to learn of the existence of their cause of action does not prevent the operation of the Statute of Limitations.’

“Jackson v. Anderson, 355 Ill 550, 189 NE 924, was an action by stockholders to cancel an issue of corporate stock which had not been paid for. The stockholders alleged that they were unaware of the issuance of the stock by the officers of the corporation until after the statute of limitations had run. The court said that this did not prevent the running of the statute. In personal injury cases it has been held that the cause of action accrues and the statute of limitations starts to run when the act complained of took place. In Leroy v. City of Springfield, 81 Ill 114 (1876) the court stated:

“ ‘Appellant asks, when shall it be said the cause of action arose, as, in many cases, the extent of the injury cannot be known for a long time?
“ ‘The principle, we understand, is, that the cause of action arises at the time the injury was done, and the statute begins to run from that day.’ ”

Since there was no fraud or concealment on the part of any of the defendants and since the Illinois precedents and the statute of limitations as expressed in this State do not justify the adoption of the “know or ought to know” rule in cases such as we have before us, we must conclude that the trial court correctly determined that the action was barred by the five-year statute of limitations applicable in this case. We have noted that the legislature, when confronted with the problem of the time of accrual of a cause of action in the malpractice cases, saw fit only to amend that act and limit it to malpractice cases. The amended act permits the injured party to count the time for commencement of action from the time he knows or should have known of the negligent act, but even in such case, the legislature limited the potential claim to a maximum of 10 years from the date of the incident giving rise to the malpractice claim.

The statute of limitations is a creature of legislative action. The public policy of this state has found expression through the legislature in vesting certain rights and in limiting others, and in prescribing the time within which such rights or claims should be asserted. While we recognize the potential inequity of the denial of relief from the operation of the limitation act in a case such as we have before us, we also recognize the basic policy behind statutes of limitation. As expressed in the case of Mosby v. Michael Reese Hospital, supra, at 340:

“A statute of limitations is designed to prevent recovery on stale demands. It is a statute of repose which gives a defendant a reasonable opportunity to investigate a claim and to prepare his defense within a time when the facts are still accessible and witnesses are still available. Although such a statute serves a laudable purpose in preventing old and vexatious demands, it also arrests meritorious claims. Such is the situation here.”

To seek to modify the limitation act by use of the “know or ought to know” principle in this case cannot be justified on the basis of precedents. In theory, damage actions would never be completely limited but might go on for 25 or 50 or even 100 years when it would be impossible to meet or cope with demands made. Modifying or changing the applicable time limitations, on the basis of the precedents in this State, must be left to the legislature.

In view of our conclusion in this cause it is not necessary for us to consider the applicability of section 24(f) of chapter 83, 1965 Ill Rev Stats, upon which defendants also rely.

We must, therefore, conclude that the order of the Circuit Court of Kankakee County, Illinois, was proper and should be affirmed.

Affirmed.

STOUDER, P. J. and CORYN, J., concur.


author: CORYN, J. ALLOY, J.,

text:
    Phillip Dobson, Plaintiff-Appellant, v. Bernard Rosencranz, Defendant-Appellee.
    Gen. No. 66-32.
    Third District.
    April 4, 1967.
    Rehearing denied and opinion modified May 18,1967.

      Kevin Kelly, of LaSalle, for appellant.
    Herbolsheimer & Lannon, of LaSalle, and Berry & O’Conor, of Ottawa, for appellee.
   CORYN, J.

Phillip Dobson, plaintiff, instituted this action to recover for personal injuries allegedly sustained on October 1, 1962, when automobiles being driven by him and by defendant, Bernard Rosencranz, collided in the intersection of First and Joliet Streets in LaSalle. The jury returned a verdict for plaintiff in the sum of $18,000, upon which judgment was entered, and thereafter, upon motion of defendant, the Circuit Court of LaSalle County granted a new trial. We have previously allowed plaintiff’s petition for leave to appeal from that order. Plaintiff contends that the trial court abused its discretion in granting a new trial, and in support of this contention, argues that the record discloses a preponderance of evidence from which the jury reasonably could have concluded that defendant (1) negligently failed to yield the right-of-way, or (2) negligently failed to keep a proper lookout, or (3) negligently failed to stop, slow, or turn his automobile to avoid the collision. Defendant contends that plaintiff failed to establish his cause of action by a preponderance of evidence, and that the trial court properly exercised its discretion in granting a new trial.

The record discloses that on October 1, 1962, at approximately 4:00 p. m., plaintiff, accompanied by his wife, was driving north on Joliet Street near its intersection with First Street in the City of LaSalle. This intersection was controlled by stop lights. Visibility was clear and the pavement was dry. The intersecting streets upon which plaintiff and defendant were respectively traveling were each between forty-five to forty-eight feet in width. Plaintiff testified that as he approached the intersection, the traffic light controlling traffic on Joliet Street was red, and that therefore he brought his car to a stop about three feet back from the crosswalk line. Also stopped at the light in the lane to the left of plaintiff’s car, and slightly ahead, was a large gravel truck with lights signaling for a left turn. The names of the owner and driver of that truck are unknown. Another automobile, driven by Richard P. Bligh, was stopped immediately behind plaintiff’s car. Plaintiff, his wife, and Bligh all testified that the truck obscured their vision to the left as the vehicles were stopped for the red light so that they could not see the traffic control light governing traffic on First Street, although they could clearly see the traffic control lights governing traffic on Joliet Street. Plaintiff testified that he remained stopped until the traffic light to his right turned green, and that he then started forward at an estimated speed of twelve to fifteen miles an hour. Mrs. Dobson testified that her husband did not accelerate his vehicle until about three seconds after the light had turned green, and that the truck started forward a little bit before them, and then suddenly stopped after going about four feet into the intersection, after which defendant’s vehicle suddenly passed from the left in front of the truck and the collision occurred. Defendant testified that he saw the truck at the intersection, but did not see plaintiff’s car until an instant before the collision. He stated that the light controlling traffic on First Street was green when he entered the intersection, and that it changed to amber when he was in the center of the intersection. He stated that he was traveling at approximately fifteen miles per hour as he approached the intersection, although witness Bligh estimated defendant’s speed at approximately twenty-five to twenty-eight miles per hour as it traveled in the intersection.

After the accident, plaintiff, defendant and Bligh got out of their automobiles. Bligh testified that he then said to Rosencranz: “Fellow, you just run a red light.” Bligh said that Rosencranz replied: “I guess I did.” Defendant Rosencranz admitted at the trial that Bligh had made this accusation, but testified that he then denied the charge, and stated that he did not run a red light. Dobson, in his testimony regarding this conversation, stated that defendant replied: “Yes, but I thought I could make it.”

Both parties agree that the only issue before this court is whether the trial court properly exercised its discretion in granting a new trial. This issue has frequently been presented to us, and in the recent case of Dunlavey v. Patti, 79 Ill App2d 442, 223 NE2d 858, we stated the applicable rule of law to be as follows:

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

In the instant case, the defendant’s post-trial motion sought a judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied the motion for a judgment notwithstanding the verdict, but granted a new trial for the stated reason that the plaintiff did not sustain his burden of proof by a preponderance or greater weight of the evidence. The trial judge prepared a memorandum of opinion which contained his evaluation of the evidence and his reasons for concluding that the plaintiff had failed to sustain the burden of proof. In this memorandum he observed that it was plaintiff’s burden to prove that he had the right-of-way and that defendant was not lawfully in the intersection. The evidence admitted to meet this burden was noted in said memorandum to consist of the conversation between plaintiff, Bligh, and defendant immediately after the collision wherein Bligh charged defendant with having proceeded through a red light, and the evidence concerning the speed and the time and the distances traveled by the several vehicles at the intersection, which was argued by plaintiff to prove or corroborate that defendant entered the intersection on a red light. With respect to the conflicting testimony regarding the conversation between Bligh and defendant, immediately after the accident, the trial judge remarked:

“This then leaves as the only evidence concerning the color of the stop light when the defendant entered the intersection the positive statement [at the trial] of the defendant that it was green and changed to yellow. This is opposed by the alleged admission of the defendant [at the scene]. As pointed out above there is a vast difference between the exact language used by the defendant in the admission as related by Bligh from that related by the plaintiff himself. If we are going to have the jury determine what the defendant meant by such an admission then the words used must be submitted to the jury for their interpretation. The variance in the wording of this alleged admission as related by these two witnesses is substantial, if not contradictory. Admittedly admission will constitute strong evidence of a fact to be proven, however, admissions must be specific and not some witness’s interpretation of what was said. These two statements were given as exact language used by the defendant and obviously they do not constitute the exact language of the defendant.”

With respect to the testimony of the several witnesses who gave estimates of time, speed and distance, the trial court commented as follows:

“No one’s power of recall is so perfect that he can some three years after an accident with precision detail whether one, two, three or four seconds are involved in a particular transaction, or whether a particular distance involved is ten, fifteen, or twenty feet, or whether the speed of the vehicle, as he recalls it, was ten, fifteen or twenty miles per hour, and a slight deviation in any of these variables could be used to prove or disprove either side of the case. Accordingly, I am not going to split hairs, and I consider any evidence based on these computations to be of the very weakest kind.”

It is a matter of interest to us that while one trier of fact, on one occasion, will give as a reason for minimizing the value of certain testimony that “no one’s power of recall is so perfect as to permit such accurate recall after the lapse of so much time as was demonstrated here,” the same, or another trier of fact, on a different occasion, will sometimes give as a reason also for discounting the value of similar testimony the opposite premise that “the inability of the witnesses to be consistent on such points cannot be unnoticed.” The premise that no one’s power of memory is so perfect as to permit exact recall might have been applied here by the trial court, as perhaps it was by the jury, to reasonably explain the variations in the versions of plaintiff and Bligh as to the alleged admissions made by defendant at the scene. But the trial court did not apply this premise in that instance; rather it found the variations substantial and unreasonable, suggesting that consistency should be required here, while consistency in the testimony as to distances and speed was thought suspect. We do not doubt that some reasonable men will agree with the inferences and conclusions of the trial court in this respect as to when perfect consistency should be required and when it is cause for suspicion, and as to the value of opinion testimony on distances and speed. It also seems apparent, however, that other reasonable men would agree with the opposite conclusions reached by the jury, that is, that the variation in the testimony of plaintiff and Bligh as to the admissions of defendant is only slight, the gist of both being that defendant candidly acknowledged having entered the intersection unlawfully, and that the testimony of distances, time, and speed are corroborative of this admission. We think there is reasonable basis in the record for the determination made by the jury, and we conclude that the trial court usurped the function of the jury by substituting for the jury’s conclusions its conclusions as to whether the testimony of Bligh, Dobson, or Rosencranz was true and/or accurate regarding the conversation after the accident, and the reliability and weight to be given to this and the evidence of distances and speeds.

Bernard Rosencranz, defendant, was called as a witness by plaintiff under section 60 of the Illinois Civil Practice Act. In commenting on this testimony, the trial judge stated:

“The type of cross-examination which Mr. Rosencranz was subjected to under § 60 may have had the effect of weakening his testimony in the minds of the jury, and counsel may have, by the asking of his questions and the tone of his voice, been able to implant in the minds of the jury that what Mr. Rosencranz was saying was not the truth. . . .”

No objections were made during the trial by defendant to the method and manner of this cross-examination, and he did not raise the issue in his post-trial motion, and we do not find that the method and manner of this examination was objectionable. Section 60 permits an adverse party to be questioned as if under cross-examination, and during this type of examination leading questions are permissible. Cleary, Handbook of Illinois Evidence (2d Ed), § 6.11. The record here discloses that Rosencranz was examined by the plaintiff under § 60 by the usual method of using leading questions. Again, it was for the jury to determine the credibility and weight to be given his testimony.

It is argued by defendant, again in reference to the § 60 cross-examination of the defendant, that the printed record cannot reveal the tone of voice of plaintiff’s counsel, or the unfairness of the mode of his questioning on cross-examination reflected by his attitudes, all of which were observed by the trial judge to support an order for a new trial, and that the judgment for new trial must be sustained in the absence of any clear showing that it derives from an abuse of discretion. We find this argument illusory. The demeanor of the witnesses and of plaintiff’s counsel were equally apparent to the jury. The evidence in the record supports the verdict, and the argument that the trial court for reasons or considerations that do not appear of record, has the authority to refuse a judgment on that verdict and to order a new trial suggests, in our opinion, an unlimited and arbitrary power, not a judicial discretion. If an exercise of “discretion” may be rested purely upon such matters not of record, as defendant suggests to be so, then such an order is not subject to review at all and is for that reason an arbitrary power. It is misleading to assert in such circumstance that an abuse of discretion could ever be shown. Defendant has stated that “historically, and to the present time, the trial judge has had virtually the unlimited power ... to grant a new trial when deemed warranted.” This is, perhaps, an accurate observation of the historical circumstance where, prior to the Civil Practice Act, orders granting new trials were not appealable. The purpose of the Civil Practice Act in making such orders appealable, however, was to abolish an unlimited and arbitrary power in this area, and to substitute therefor, a judicial discretion exercisable within the confines of what is reasonable on the record as measured against the restraints imposed by the power of review. The record must, in our judgment, demonstrate a reasonable basis for an order granting a new trial, in the absence of which showing, we feel required to regard such an order as error. In Magnani v. Trogi, 70 Ill App2d 216, 218 NE2d 21, we considered that greater latitude is allowed a trial court in granting a new trial than in denying it, and accordingly, that error in a record made by the court or jury is appropriately corrected by an order for a new trial even where such error would not constitute reversible error to a court of review. But some error must appear in the record as the purpose for granting a new trial. The record herein demonstrates that this case was fairly tried by competent counsel. As the jury’s verdict is supported by the evidence, and no error appears of record, a new trial should not have been granted by the trial court.

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

Reversed and remanded with directions.

STOUDER, P. J., concurs.

ALLOY, J.,

dissenting.

I cannot agree with the conclusion of my colleagues in this case. I do not believe that determination of the propriety of the action of the trial judge in the granting of the new trial involves a substitution by the trial court of his conclusion in opposition to one which the jury has properly reached.

Both parties agree that the only issue before this court is whether the trial court properly exercised the trial court’s broad discretion in allowing a new trial. It is apparent that a trial judge is justified in granting a new trial where the plaintiff fails to prove his case by the preponderance or the greater weight of the evidence (Read v. Cummings, 324 Ill App 607, 609, 610, 59 NE2d 325; Mesich v. Austin, 70 Ill App2d 334, 352, 217 NE2d 574). As indicated by the court in the case of Read v. Cummings, supra, at page 609:

“But after the verdict is returned a different question arises. It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. It is his duty to set aside the verdict if he is of opinion that the plaintiff has not sustained his case by a preponderance of the evidence, while the question of the preponderance of the evidence does not arise at all in this court.”

Accordingly, unless there is a clear abuse of discretion, a court of review will not set aside the order of a trial court granting a new trial, although as we have said in Foster v. VanGilder, 65 Ill App2d 373, 377, 213 NE2d 421:

“The trial judge, however, should not set aside a verdict and grant a new trial merely because he would have decided the case differently if he had been the trier of fact. Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448; Bobtex Industries v. Continental Baking Co., 4 Ill App2d 377, 124 NE2d 78; Read v. Friel, 327 Ill App 532, at 538, 64 NE2d 556; Finley v. New York Cent. R. Co., 19 Ill2d 428, at 436, 167 NE2d 212; or because he feels that inferences or conclusions other than those drawn by the jury might be more reasonable. Rouse v. New York Cent. & St. L. R. Co., 349 Ill App 139, at 146, 110 NE2d 266; Kahn v. James Burton Co., 5 Ill2d 614, at 623, 126 NE2d 836.”

We are confronted in this case with the typical concern which arises when a trial court allows a motion for a new trial. In the cause before us, the trial court, in a written memorandum of opinion, emphasized that the jury was unduly confused by inferences and statements made by counsel in examination of witnesses, which inferences were not based on evidence, and the court apparently felt that a new trial was required by reason of such examination as well as the feeling of the court that there was a failure of proof by a preponderance of the evidence.

The arguments and discussions of counsel in this case, and in many cases which have been determined in the courts of this State, have disclosed a confusion as the role of the trial court in determining whether to grant a new trial, notably where the trial court determines that the verdict is not based upon the preponderance of the evidence. This right of the trial court to grant a new trial where there is a failure to establish plaintiff’s cause of action by a preponderance of the evidence is not an empty gesture, but is a realistic implementation of the obligation of a plaintiff in proving his case by a preponderance of the evidence, as expressed under the law of this State and in appropriate instructions to the jury as to such law. If the jury in fact fails to heed such instruction relating to preponderance, the trial court has the right to order a new trial. This right, however, is not based upon a substitution by a trial court of his interpretation of the facts or a conclusion that the jury’s interpretation of the facts or inferences were not such as he would reasonably have concluded. The position of the trial court in this respect is entirely different from that of this court on appeal where the verdict is required to be contrary to the manifest weight of the evidence before the court would reverse. The trial judge has the primary role in determining whether a fair trial has been conducted and whether the basic principles of law applicable have been adhered to. In certain areas, such as the granting of a new trial, he is given a broad, though not unlimited, discretion. Unless such discretion is abused, the court of review would not set aside an order granting a new trial.

To say, in effect, that a trial court has no alternative other than to arbitrarily direct a verdict or enter a judgment notwithstanding a verdict or let the verdict stand would eliminate that unabused discretionary power of the trial court, and would permit the jury to be the conclusive arbiter in all cases unless the verdict of the jury is completely contrary to the manifest weight of the evidence. This would be a departure from a basic legal principle governing liability in this State that a cause of action is required to be established by a preponderance or greater weight of the evidence.

The test, therefore, becomes whether or not the trial judge abused his discretion in granting the new trial under the facts in the instant case. If the only issue in this court was whether or not the verdict was contrary to the preponderance of the evidence, I would concur with the conclusion of my colleagues. In this cause, however, the trial court obviously felt that, as a result of innuendos or misleading forms of questions, the jury may have been misled not only as to the condition of the lights but as to the other issues. While objections were not shown to have been specifically made so that the testimony was not ordered stricken, the effect thereof could still have been considered by the trial court in determining whether to allow the motion for the new trial (Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 43, 176 NE2d 551; Mattice v. Klawans, 312 Ill 299, 143 NE 866; Paliokaitis v. Checker Taxi Co., 324 Ill App 21, 51 NE2d 216).

Since the trial court had the benefit of observing the appearance and demeanor of the witnesses and the manner in which they testified and all the circumstances attending the testimony, the trial court is obviously in a better position to weigh the evidence than is a court of review. The right of the trial court to determine whether or not a new trial should be granted for failure to establish plaintiff’s case by a preponderance of the evidence or because a jury was misled by counsel’s questioning is underscored by the precedents referred to in this opinion. In analyzing all of the evidence relating to the issues as to failure to yield the right of way, failure to keep a proper lookout, and failure to stop or slow or turn defendant’s automobile to avoid the collision, or in the determination of whether the jury was misled by counsel’s questioning, I feel we cannot say the trial court abused its discretion.

As indicated, the trial court is allowed a broad discretion in granting a new trial and such motion is addressed to the sound judgment of the court. Unless we find that an abuse of discretion is affirmatively shown, a trial court’s decision in granting a new trial should not be reversed. In such cases, the courts of review have uniformly concluded that the trial judge, principally because he can observe the witnesses and their manner of testifying and the circumstances aiding in determination of credibility and the effect of questioning on jurors, is in better position than a court of review to weigh the evidence or determine the ultimate question of whether the trial was fairly conducted. It is not a question of whether our conclusion would be the same under such circumstances. Unless there has been a clear abuse of discretion, the granting of the new trial by the trial court should not be disturbed on review.

On the basis of the record before us, therefore, I believe that the granting of a new trial in this cause does not constitute such an abuse of discretion as would justify us in setting aside such action of the trial court. I feel that the order of the trial court should be affirmed.