author: MR. JUSTICE DAVIS

text:
    Eva Peach, Conservator of Leo Peach, Incompetent, Plaintiff-Appellant, v. Lester Peach, Gonigam-Bass-Hill, Inc., a Corporation, and International Harvester Company, a Corporation, Defendants-Appellees.
    Gen. No. 65-112.
    Second District.
    July 6, 1966.

      Roger V. Pierson, of Princeton, for appellant.
    George F. Nichols and William R. Gunner, of Dixon, and Gerald W. Fearer, of Oregon, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Eva Peach, as conservator of Leo Peach, her son, filed suit against Lester Peach, another son, Gonigam-BassHill, Inc., and International Harvester Company, defendants, to recover for certain injuries sustained by Leo Peach. The injuries occurred when a falling bale of hay struck Leo Peach on the head while he was working near a grain elevator which was being used on the Lester Peach farm. The other two defendants were the manufacturer and seller of the elevator in question.

The injury occurred on July 8, 1960, and this suit was not commenced until November 27, 1962 — more than two years after the date of the injury. The plaintiff was not appointed conservator for Leo Peach until October 23,1962,

The defendants filed motions to dismiss the amended complaint because “at no time during the period from July 8, 1960 to July 8, 1962, was Leo Peach within the age of 21 years or insane or mentally ill or imprisoned on a criminal charge so as to toll the statute of limitations in accordance with the provisions of Chapter 83, Illinois Revised Statutes, section 22.” In its order overruling these motions, the trial court stated:

“In the original complaint and in the amended complaint the plaintiff alleges that ‘Leo Peach, on July 8, 1960, and for many months prior thereto, was by reason of mental deficiency an incompetent person’ and that on July 8, 1960, the plaintiff was injured by detailed negligent acts of the defendants. . . .
“The plaintiff has assumed the burden of proof in this case — that the plaintiff was incompetent on the day of the accident and that, of course, he must prove, together with the other allegations in the complaint before he can hope to effect a recovery. He has, however, stated a cause of action and all motions to dismiss are overruled.”

The trial court ordered that the issue of the mental illness of Leo Peach be severed and tried separately. This single issue was tried before a jury which found for the plaintiff by affirmatively answering the special interrogatory — “Was Leo Peach from the period of time beginning July 8, 1960 up to and including July 9, 1962, an incompetent person?” The trial court set aside the finding of the jury on the special interrogatory as being “against the manifest weight of the evidence,” and then granted defendants’ motions to dismiss the complaint. The order of dismissal read in part:

“As hereinbefore noted the Court overruled the defendants’ motions to dismiss the complaint on the theory that if the plaintiff was incompetent between the dates of July 8, 1960 and July 9, 1962, and could prove it, it would toll the Statute of Limitations.

ORDER

“In the opinion of the Court the plaintiff has failed to make such proof and the Court so finds. The verdict is set aside and the Court overrules itself with reference to the former motions to dismiss. It now grants the motions to dismiss.”

Plaintiff filed neither a motion for new trial of the issue of the incompetency of Leo Peach, nor a motion to vacate the aforesaid order dismissing the complaint, but rather, filed notice of appeal from the order of dismissal on the ground that the special finding of the jury was not against the manifest weight of the evidence.

At the outset we must turn to the defendants’ contention that the order of dismissal was not a final order, and, hence, this appeal will not lie. In this regard, defendants argue that no judgment was entered for defendants containing the formal pronouncements traditional to final judgments, such as, “the plaintiff take nothing by virtue of this action and that the defendants go hence without day.” They also urge that the trial court made no attempt to assess costs or to permit execution to issue for costs.

The new Judicial Article provides an appeal as of right from final judgments of the Circuit Court to the Appellate Court in all cases other than those appealable directly to the Supreme Court, except that after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal. It also provides that appeals to the Appellate Court from other than final judgments of the Circuit Court may be provided for by rule of the Supreme Court. (Constitution of Illinois 1870, art 6, § 7.) Article 6 became effective January 1, 1964, and sections 77 and 78 of the Civil Practice Act were repealed as of that date, and Supreme Court Rules 30 and 31 then became effective (Ill Rev Stats 1963, c 110, pars 77, 78, 101.30 and 101.31).

We acknowledge that the order under consideration in the case at bar is appealable only if it is final. We also concede that there are cases which appear to exalt form over substance with reference to the language in which the order or judgment is couched, in determining its finality. In Johnson v. City of Rockford, 26 Ill App2d 133, 169 NE2d 534 (2nd Dist 1960), at page 137, the court stated:

“An order providing that certain parts of a complaint be dismissed but not adjudging that plaintiff take nothing nor that defendant go hence without day and containing no words or phrases of equal import, does not dispose of the rights of the parties respecting such dismissed portions and is not a final order from which an appeal will lie. (Citations.) Where the order merely sustains defendant’s motion to strike complaint without stating more, such order is not a final appealable order, and appeal therefrom must be dismissed, even though the question of jurisdiction is not raised by the parties.”

However, it has long been the law that “no particular form was required in the proceedings of an inferior court to render their order a judgment. It is sufficient if it be final, and the party may be injured.” Johnson v. Gillett, 52 Ill 358, 360 (1869).

More recently, the Supreme Court in The Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371 (1958), at page 48, defined a final judgment as follows:

“To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. (Citations.) While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.”

In Kita v. Young Men’s Christian Ass’n of Metropolitan Chicago, 47 Ill App2d 409, 198 NE2d 174 (1st Dist 1964), the appellee moved to dismiss the appeal because the order of the trial court was not a final order. The order, which was set forth at page 426, read:

“It is further ordered that the Motion to Dismiss the Second Complaint at Law is sustained and the above-entitled cause is hereby dismissed.”

The court noted that the order lacked the words, “that the plaintiff take nothing or that the defendant go hence without day,” but held that the recital in the order was sufficient to make the judgment final. And, in Green v. Union El. R. Co., 118 Ill App 1, 5 (1st Dist 1905), an order absolutely dismissing a cause without assessing costs, was held to be a final order.

We hold that the only attribute indispensable to the finality of a judgment or order is that it terminate the litigation between the parties to the suit and finally determine, fix and dispose of their rights as to the issues made by the suit. The test of finality lies in the substance and not the form of the judgment or order. The Village of Niles v. Szczesny, supra; Johnson v. Gillett, supra; and 6 Nichols Ill Civ Prac, §§ 5925, 5917, 5907 and 5901. To the extent that Johnson v. City of Rockford, supra, holds to the contrary, it is hereby overruled.

In the case at bar, the incompetency of Leo Peach was essential to plaintiff’s claim that the statute of limitations was tolled. After a trial on this issue, the lower court found that the evidence was not sufficient to sustain plaintiff’s burden in this respect. Absent the incompetency of Leo Peach, the plaintiff’s action was barred by the statute of limitations. The order of the trial court dismissing the cause for the failure to sustain this burden terminated the litigation between the parties and disposed of the case, even though it was not couched in the particular phraseology or form once traditionally used under common-law procedures.

It appears that the defendants did not obtain a judgment for costs because they did not bring the matter to the court’s attention. We concede that if they had done so, they would have been entitled to a judgment for costs; and if the court had refused to enter such a judgment, it would have been error. The defendants do not urge here, however, that the trial court committed error in its order, but only that the order was not final, absent the cost provisions. The presence or absence of cost provisions in an order or judgment may be error, but such circumstance alone cannot be the basis of determining the finality of a judgment, order or decree. 6 Nichols, supra, § 5917.

In the case at bar, the jury made a special finding on the question of the incompetency of Leo Peach. Under section 65 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 65), general verdicts are mandatory except where the nature of a case requires a special verdict. (See: Joint Committee Comments — Smith-Hurd Ill Anno Stats ch 110, par 65.) The special interrogatory is a modified form of the special verdict (McCaskill, Illinois Civil Practice Act Annotated, pp 158-161 and 1936 Supplement, pp 179 and 180) and is a convenient tool often used in connection with the trial of separate issues — as in the case before us.

The law is well settled that a trial court may set aside a special interrogatory inconsistent with the general verdict when such interrogatory is against the manifest weight of the evidence. Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 136, 200 NE2d 128 (1st Dist 1964); Young v. Illinois Cent. R. Co., 319 Ill App 311, 322, 49 NE2d 268 (3rd Dist 1943); Paul v. Garman, 310 Ill App 447, 457, 34 NE2d 884 (2nd Dist 1941), and may also set aside a special interrogatory on a single issue where such interrogatory is against the manifest weight of the evidence. Freeman v. Chicago Transit Authority, supra, 138-140; Paul v. Garman, supra, 457. This places before us the question of whether the special finding of the jury on the issue of Leo Peach’s incompetency was against the manifest weight of the evidence. This requires our consideration of the pertinent evidence.

The plaintiff testified that Leo was born on January 23, 1929, and did not walk until he was 22 months old; that he stayed in school until he was 16 years old, but could not read and there had been no change in his development since the time he left school; and that he merely looks at newspapers and has no interests, hobbies or activities. She stated that he had a checking account until 1944 and signed checks; that he played pinochle at public card parties; that he was a registered voter and last voted in 1964; and that he has a driver’s license and drives a car. She further stated that he lived with her, but when he worked on his brother’s farm he would spend only the weekends with her and would stay the remainder of the week at the farm; and that he had no other employment. Plaintiff also testified that in her opinion he was “mentally deficient.” However, when plaintiff filed a petition to probate her husband’s will in 1951, she did not list her son as being incompetent, but rather, described him as an adult.

Others testified that Leo Peach was slow in his mental processes and his speech impeded. A doctor testified that Leo followed orders well. Two teachers, who had taught in the one-room schoolhouse attended by Leo, testified that he was not a good student, could not read well, was slow, but his conduct was good; that his comprehension was low and his concentration span was short; and that he reached his peak of learning at about the fifth grade level.

A doctor, specializing in neurology and psychiatry, testified that Leo had limited intellectual resources, but was alert and cooperative. He examined Leo on May 1, 1964, and was of the opinion that Leo was “mentally retarded.”

The statute of limitations provides that if a person entitled to bring the action is “. . . insane, or mentally ill . . . , he or she may bring the action within two years after the disability is removed.” (Ill Rev Stats 1963, c 83, par 22.) None of the parties hereto has directed our attention to a comprehensive interpretation of the words “insane or mentally ill” as used in this particular statute. The Historical and Practice Note contained in Smith-Hurd Ill Anno Stats c 83, par 22, states that the section was amended in 1951 by adding the clause “or mentally ill” following the clause “or insane” to conform to the terminology of the Mental Health Code.

The Mental Health Code of 1951 defined a “mentally ill” person as:

“Any person afflicted with mental disease to such an extent that for his own welfare, or the welfare of others or of the community, he requires care, treatment, detention and training, and which renders him incapable of caring for and managing his own estate;” (Ill Rev Stats 1951, c 91½, par 1-8.)

The Code was later amended and sections 1-7, 1-8 and 1-9 provide:

“1-7. ‘Mentally Deficient Person,’ when used in this Act, means any person whose mental abilities have been arrested from birth, or whose mental development has been arrested by disease or physical injury occurring at an early age, who requires care, treatment, detention and training in a hospital or under a guardian or conservator for his own welfare, or the welfare of others or of the community; provided that no mentally ill person shall be regarded as mentally deficient unless he is mentally deficient as herein defined.” (Ill Rev Stats 1963, c 91%, par 1-7.)
“1-8. ‘Mentally Ill Person/ when used in this Act, means any person afflicted with mental disease to such an extent that for his own welfare, or the welfare of others or of the community, he requires care, treatment, detention and training, and which renders him incapable of caring for and managing his own estate; . . . .” (Ill Rev Stats 1963, c 91%, par 1-8.)
“1-9. ‘Person in Need of Mental Treatment/ when used in this Act, means any person afflicted with mental disease to such an extent that for his own welfare, or the welfare of others or of the community, he requires care, treatment, detention and training, without reference to his ability to care for and manage his own estate.” (Ill Rev Stats 1963, c 91%, par 1-9.)

The legislature has limited the exception in the statute of limitations to those who are “insane or mentally ill” as those words are variously defined. It has not seen fit to extend the exceptions to a class of persons who, though not insane or mentally ill, do not possess the mental capabilities expected of or common to persons of their age. No such exception may be implied or created by the courts. Morgan v. The People, 16 Ill2d 374, 379, 158 NE2d 24 (1959).

In 54 CJS, Limitations of Actions, § 242, p 269, in discussing the savings clauses contained in various statutes of limitations, it is stated:

“The party must show the condition of mind contemplated by the statute, which will not be extended to embrace other conditions.”

Other jurisdictions in interpreting the meaning of words such as “insanity” or “mental illness” as used in statutes of limitations, have held that the language contemplates a condition such that the sufferer was incapable of caring for his property or transacting business, or understanding the nature of his acts or his rights, or that which transpired. Gottesman v. Simon, 169 Cal App2d 494, 337 P2d 906, 909 (1959); Barnett v. Ashley, 89 Ga App 679, 81 SE2d 11, 13; Piper v. Hoard, 107 NY 67, 13 NE 632, 634 (1887). These various definitions are not unalike.

We believe that the words “insane” or “mentally ill” as used in the Illinois Statute of Limitations contemplate that the sufferer could not comprehend the nature of the act giving rise to his cause of action or his rights, and that his condition is such as to require care in a hospital or under a guardian or conservator for his own welfare or the welfare of others. It would appear that such a condition would of necessity also render the sufferer incapable of caring for his own estate. Tested by these standards, we cannot say that the trial court erred in setting aside the special finding.

Leo Peach was able to read, play pinochle, pass a driver’s license examination, drive a car, work on a farm, maintain a checking account at a local bank, and write checks. He was able to qualify as a registered voter, and last voted in November, 1964. His doctor testified that he followed directions well and would return as directed for treatment of his injuries. In sum, while he was undoubtedly retarded and of limited intelligence and comprehension capacity, and his concentration span was short, yet apparently, he was alert and cooperative and had judgment, memory, sense and understanding.

Under the facts of this case, the trial court could well conclude that there was not sufficient evidence to sustain a finding that Leo Peach could not comprehend that which transpired or the nature of his acts or rights, or that he was incapable of managing his estate, or that he needed care for the protection of his own welfare or the welfare of others.

Where the special finding is against the manifest weight of the evidence, the court not only has the power — but the duty — to set it aside. Freeman v. Chicago Transit Authority, supra, 137. We believe that the trial court properly set aside the special finding of the jury that Leo Peach was incompetent, as against the manifest weight of the evidence. Absent such finding, the plaintiff’s cause of action was barred by the statute of limitations, and the trial court properly ordered its dismissal. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lewis Eugene Haynes, Defendant-Appellant.
    Gen. No. 10,657.
    Fourth District.
    July 17, 1966.
    Rehearing denied July 29, 1966.
    William L. Fay, of Jacksonville, for appellant.

      Charles J. Ryan, State’s Attorney of Morgan County, of Jacksonville, for appellee.
   SMITH, J.

Defendant appeals from a sentence of 5-14 years on a plea of guilty to the crime of forgery. In this court, defendant asserts the following errors: (a) That the indictment is fatally defective; (b) that the trial court should not have accepted a plea of guilty without determining defendant’s mental competence, and (c) the punishment is excessive.

The indictment is said to be fatally defective because it does not comply with article VI, § 33, of the Constitution of 1870 requiring that all process shall begin “In the name and by the authority of the People of the State of Illinois,” and conclude “Against the peace and dignity of the same.” It is urged that the new Judicial Article, effective January 1, 1964, did not expressly repeal § 33 of the old; that the latter therefore remains in full force and effect, and that our Supreme Court in Parris v. People, 76 Ill 274, held it fatally defective to an indictment to omit this language. We repudiated this argument in People v. Hemphill, 71 Ill App2d 146, 217 NE2d 17, opinion filed June 6, 1966, and adhere to the conclusion and the views expressed therein that old article VI of the Constitution of 1870 has been supplanted by the new Judicial Code in toto as new article VI.

The indictment to which the defendant pleaded guilty reads as follows:

“That on the 10th day of October 1964, in Morgan County, Illinois, Lewis E. Haynes committed the offense of forgery in that he did, with intent to defraud, knowingly issue or deliver to John H. Steele a certain check, a document apparently capable of defrauding another, drawn on the Farmers State Bank & Trust Company of Jacksonville, Illinois, in the sum of $45.00, knowing said cheek to be forged in such manner that it purported to have been made by Leslie Hubert Boots, in violation of Chapter 38, Paragraph 17-3, Illinois Revised Statutes 1963.”

Neither a motion to quash nor a motion in arrest of judgment was directed to this indictment in the trial court. It is here urged that there is no allegation that Leslie Hubert Boots is a living person, that such an allegation and proof was required under the old law (see People v. Gould, 347 Ill 298, 179 NE 848, and People v. Meeks, 55 Ill App2d 437, 205 NE2d 62) to sustain a conviction for forgery and, since the drafters of our new Criminal Code stated they were only codifying the existing law, a like requirement now obtains. This conclusion does not follow. In Gould and in Meeks, the courts were discussing the difference between forgery and fictitious paper, which were then covered by different sections of the Criminal Code, imposed different sentences, and were treated as separate and distinct offenses. Our new Code, Ill Rev Stats c 38, ¶ 17-3, incorporates all forms of forgery into a single crime. This we noted in Meeks and there stated that the problem in Meeks would not have arisen under our new Code. The indictment is here couched in the language of the statute — a practice long since approved — and the complaint now leveled against it might well have been resolved by a bill of particulars if deemed necessary or desirable for a proper defense. In this manner the requirement of due process is adequately served.

The issue as to mental capacity arises from the questioning of the court during arraignment. It appears that the defendant had been a voluntary patient at Jacksonville State Hospital some 3-3½ months before. The court then asked: “And you have been discharged and you have no mental problem at the present time, is that correct?” Defendant answered, “No.” Admittedly this answer is somewhat ambiguous. The court evidently took this to mean that he had no mental problems now. Should this have triggered further initiatory inquiry on the part of the court ? We think not. Neither the trial court, the State’s Attorney, the public defender, the parole officers nor the defendant himself ever raised the issue of defendant’s insanity at the time of the commission of the crime or of his competency during his three appearances in open court. We should, we think, credit each of them with at least a minimal understanding of their responsibilities and duties. The record further discloses a defendant with an 8th-grade education, a 2% month work record prior to arraignment, a self-written summary of his life disclosing a problem with alcohol, but employing a lucid, precise, articulate and commendable style and a remarkable understanding of his predicament and problem. In our judgment, this record falls far short of raising a bona fide doubt of the mental capacity of the defendant and is clearly insufficient to require the trial court to initiate a sanity hearing. People v. Shrake, 25 Ill2d 141, 182 NE2d 754; People v. Harper, 31 Ill2d 51, 198 NE2d 825; People v. Motis, 23 Ill2d 556, 179 NE2d 637; People v. Mitchell, 57 Ill App 2d 238, 205 NE2d 655.

It is urged that the sentence of 5-14 years is unduly harsh and severe where only $45 is involved and the sentence as to maximum is the limit allowed by statute. Ill Rev Stats c 38, ¶ 17-3, and the minimum is well above the one-year lower limit. In his statement, the defendant said: “I have never done anything vicious or mean and yet I’ve spent half my life behind bars.” This is amply supported by a record showing the following:

1942 Larceny 60 days

1942 Forgery 1-14 years

1944 Paroled in January — 1 year

Larceny in April

1945 Returned as a parole violator

1946 Paroled

1948 Forgery 1-14 years

1954 Discharged

1955 Forgery 2 years

1957 Forgery 2-10 years

1962 Paroled

1963 Returned as a parole violator

1964 Discharged from parole

1964 October — arrested for this offense

We recognize without question that reformation and rehabilitation of offenders must ever be a benign goal and purpose of criminal jurisprudence and that the courts should aid society to appropriately achieve these objectives to the end that offenders may be returned to society as useful citizens. This, however, presupposes the desire, the ability and the willingness of the offender to reform and to rehabilitate. The record before us leaves a cloud of real doubt. Society has tried. It would seem that the defendant has not. Society now is entitled to some protection without depriving the defendant of a reasonable opportunity to rehabilitate and return to society if he cares to do so. We see no violation of article II § 11 of our Constitution which requires that all penalties shall be proportionate to the nature of the offense nor do we think that we should disturb the judgment of the trial court. People v. Taylor, 33 Ill2d 417, 211 NE 2d 673. For these reasons, the judgment is affirmed.

Affirmed.

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


author: JUSTICE CRAVEN.

text:
    Carla Comerford, Administrator of the Estate of John V. Comerford, Deceased, Plaintiff-Appellant, v. James A. Jones, Jr., Defendant-Appellee.
    Gen. No. 10,703.
    Fourth District.
    July 7, 1966.
    Rehearing denied August 1, 1966.
    Olsen, Cantrill & Miller, of Springfield, for appellant; Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


author: PRESIDING JUSTICE TRAPP.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl R. Tucker, Defendant-Appellant.
    Gen. No. 10,686.
    Fourth District.
    July 7, 1966.
    Chester Thomson, Public Defender, of Bloomington (Jerome Mirza, of counsel), for appellant; Hugh A. Henry, Jr., State’s Attorney, of Bloomington, for appellee.
   Opinion by

PRESIDING JUSTICE TRAPP.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Junior Lee Blanchett, Defendant-Appellant.
    Gen. No. 10,569.
    Fourth District.
    July 7, 1966.
    Russell R. Goehl, Public Defender, of Quincy, for appellant; Donald G. Adams, State’s Attorney of Adams County, of Quincy (William A. Brown, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


author: GOLDENHERSH, P. J. EBERSPACHER, J.,

text:
    Shirley Wofford, Plaintiff-Appellee, v. Thomas DeVore, Defendant-Appellant.
    Gen. No. 65-16.
    Fifth District.
    July 7, 1966.
    Rehearing denied August 2, 1966.

      EBERSPACHER, J., dissenting.
    Burton C. Bernard and Joseph R. Davidson, of Granite City, for appellant.
    Sandor Korein, of East St. Louis, and Chapman, Strawn & Pratt, of Granite City, for appellee.
   GOLDENHERSH, P. J.

Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $11,000. Defendant contends that the circuit court committed reversible error (a) in the giving of an instruction to the jury; (b) in refusing to permit a witness called by defendant to testify; (c) in its rulings as to certain portions of plaintiff’s opening argument; (d) in refusing to permit defendant’s counsel, in closing argument, to argue the failure of plaintiff to produce a witness.

The evidence shows that at approximately 1:30 a. m. on Sunday morning, an automobile being driven by plaintiff in an easterly direction, and an automobile being driven by defendant in a westerly direction, collided. The collision occurred on By-Pass Route 40, between Collinsville and East St. Louis, Illinois. At the point of collision the highway is straight, concrete surfaced, and there are two eastbound and two westbound lanes. The principal issue as to the occurrence was on which side of the center line the collision took place. The record amply supports the verdict finding the issues for the plaintiff.

Defendant argues that the court erred in giving plaintiff’s Instruction Number 10, (IPI (20.01)). Defendant’s principal contention is that the language used, “The defendant denies that he was guilty of negligence in doing any of the things claimed by plaintiff,” erroneously implied that defendant admitted doing the acts alleged in the complaint, and merely denied that in so doing he was negligent, whereas the pleadings and evidence show that defendant denied doing the acts with which he is charged. Defendant states that the vice of the instruction is not inherent in IPI 20.01, but lies in plaintiff’s failure to heed the admonition contained in the notes on use of the instruction (IPI page 107) that the bracketed materials set forth in the form of instruction must be modified to fit the particular case.

In the Additions and Revisions (1965) of IPI, a new paragraph has been added to the suggested form of IPI 20.01, and a proposed paragraph (number 3) contains language similar to that in the instruction before us, while a proposed paragraph (number 4) is phrased in the manner for which defendant contends here. (See Revision of IPI page 30.) Defendant’s position is well taken and the Supreme Court Committee on Instructions has moved to remedy the situation. Under the pleadings, that portion of the instruction of which defendant complains, did not correctly state the issues, and we must determine whether the giving of the instruction was reversible error.

Plaintiff’s Instruction Number 10 also contained the following:

“The defendant denies that he was guilty of negligence in doing any of the things claimed by plaintiff, and denies that the plaintiff was in the exercise of ordinary care, and further claims plaintiff was negligent in that she drove her automobile on the wrong side of the road which is denied by plaintiff.”

In our opinion, this portion of the instruction adequately informed the jury that defendant contended that plaintiff drove her automobile on the wrong side of the road and eliminated any erroneous implication as to defendant’s contention regarding the cause of the collision.

Defendant offered, and the court gave, an instruction in the language of IPI 21.02. This clearly instructed the jury that plaintiff had the burden of proving that defendant “acted or failed to act.” Under the circumstances, the giving of the instruction was not reversible error.

Plaintiff testified that she had not driven an automobile for more than five months after the collision, and that she wore a neck collar for six months after suffering her alleged injury. During defendant’s case, defendant called Judy Hargrove as a witness. Plaintiff’s counsel objected to her testifying on the grounds that her name had not been furnished by defendant in answer to plaintiff’s interrogatories and defendant had not advised plaintiff whether she was an occurrence, preoccurrence or post occurrence witness. The record shows that plaintiff had filed interrogatories which defendant answered, that on September 27, 1963, plaintiff filed a supplemental interrogatory asking defendant to supply the names and addresses of all persons other than those listed in the answer to the prior interrogatories who purport to have knowledge of facts pertinent to the allegations of the complaint. The supplemental interrogatory was not answered, and no action was taken by plaintiff to compel defendant to answer. The case was tried in June of 1964.

In chambers, out of the presence of the jury, counsel for defendant stated that defendant had received knowledge of the witness on December 2, 1963. The court sustained plaintiff’s objection to the testimony of the witness, whereupon defendant’s counsel offered to produce the witness for conference with plaintiff’s attorney and requested the court to recess the trial for this purpose. The court persisted in its ruling, whereupon defendant’s counsel made an offer of proof, being in substance, that the witness, for a period of two months spent a great deal of time at her mother’s home, that her mother lived next door to plaintiff, that she saw plaintiff drive an automobile before Christmas 1962 and once or twice after Christmas, probably in January 1963, and plaintiff was not wearing a neck collar at those times. The collision in which plaintiff allegedly suffered the injury occurred in November 1962. Defendant argues that the court erred in its ruling and points out that plaintiff failed to move to compel an answer to the interrogatory, that had defendant answered the interrogatory within the time provided by rule, (Supreme Court Rule 19-11), the witness would not have been known to her, in which event there would have been no continuing obligation to furnish her name, unless plaintiff filed another interrogatory.

The parties have cited, quoted from, and argued numerous opinions in which the Supreme and Appellate Courts have discussed the issue here presented. An analysis of these cases leads us to reaffirm the conclusion reached by this court in Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 216 NE2d 14, wherein the court, through Mr. Justice Craven, at page 18, said: “The question of the appropriate sanction, if any, to be employed by the trial court for failure to list a witness in response to a proper interrogatory is within the discretion of the trial court.” As stated in Wright v. Royse, 43 Ill App2d 267, 193 NE2d 340, at page 287, “. . . it is obvious that the intent of the drafters of the rules was not to pre-empt the discretionary powers of the trial judge in his conduct of a trial or to in any way limit the sanctions that might be imposed at that stage of the proceedings. We believe that trial courts have, and must have, broad discretionary power to insure a fair, just and orderly trial. To this extent and for this reason, we believe that the terms and provisions of the Evidence Act are necessarily subject to these powers of the trial judge, to insure fairness in the trial.”

The proffered testimony could have no bearing on the issue of liability and defendant does not contend that the verdict is excessive. Unless we are prepared to hold that the trial court abused its decretion, the sanction imposed is not reversible error. Whether this court, or its individual members, would have reached a conclusion different from that of the trial court is not controlling. Based on the record before us, we cannot say that the trial court abused its discretion.

During the course of plaintiff’s opening argument, plaintiff’s attorney in arguing the extent of pain and suffering, stated that people, in this country “mean something” and pointed out that millions are spent in space research “so that they can get back safely.” Defendant objected, and asked that the jury be instructed to disregard any reference to expenditures for national defense. The objection was overruled, defendant moved for a mistrial, and the motion was denied. Defendant relies on Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136, and Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 176 NE2d 551. These cases are clearly distinguishable in that in Reed the plaintiff’s argument was construed to clearly imply the existence of insurance, and in Jacobson, defendant improperly argued plaintiff’s financial condition, referring to her as “obviously a woman of some means.” The argument here, in context, was merely illustrative of the fact that human pain and suffering is an element to be considered in determining damages. As previously pointed out, defendant makes no claim of excessiveness, and the court’s rulings were not error.

Plaintiff testified that about 9:00 p. m. on the evening before the occurrence, she had picked up her friend, Norma Rains, and they had gone to a steak house. Later that evening they met plaintiff’s present husband, the three of them went for a ride, stopped for coffee, and about 11:30 p. m. they drove Miss Rains to her home. On cross-examination, plaintiff admitted some doubt as to whether they had driven Miss Rains home before or after they stopped for coffee. In any event, Miss Rains was not present at the time of the collision. Defendant’s counsel, in final argument, made reference to the fact that plaintiff had not called Miss Rains as a witness, and on plaintiff’s objection and motion, the statement was stricken and the jury instructed to disregard the comment. Defendant cites no authority in support of his contention that these rulings were reversible error. There is nothing in the record to show that Miss Rains was under the control of plaintiff, or that defendant could not have subpoenaed her. Under the circumstances, the court properly sustained plaintiff’s objection and ordered the argument stricken. Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 146 NE2d 205; In re Estate of Sandusky, 321 Ill App 1, 52 NE2d 285.

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

Judgment affirmed.

MORAN, J., concurs.

EBERSPACHER, J.,

dissenting.

Respectfully dissenting, I would reverse this case and remand for a new trial.

In my opinion, the combination of the erroneous instruction and an abuse of discretion on the part of the trial court in imposing the sanction, were sufficiently prejudicial, to require a new trial.

An examination of the opinion in Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 216 NE2d 14, discloses that there the court held that the failure to invoke sanctions against plaintiff for not listing a witness in response to a proper interrogatory was not abuse of discretion, under the circumstances of that case; the circumstances were entirely different in that case, where no sanction was invoked, from the present case where the most severe sanction was invoked.

In Wright v. Royse, 43 Ill App2d 267, 193 NE2d 340, from which the majority opinion quotes, the interrogatories were answered at the time the names were known to appellant, and appellant failed to list the name of the proposed witness. Here the name of the witness who was denied the right to testify was not known within the time to answer the interrogatory.

In the present case, whether or not Judy Hargrove would be needed as a witness depended upon the evidence presented by the plaintiff. Under such circumstances plaintiff could not have been prejudiced by the failure to furnish the name of the witness, Hargrove.

In Quatrano v. Marrocco, 61 Ill App2d 1, 208 NE2d 632, a dramshop action, a witness was allowed to testify for plaintiffs even though her name had not been listed in the answer to defendant’s interrogatories. The court held that where opportunity to question the witness was given to opposing party prior to trial and where there could be no surprise, it was proper to allow the witness to testify, and held that in deciding whether or not exclusion of witness is proper, the court should consider the suprise to the adverse party.

In Grant v. Paluch, et al., 61 Ill App2d 247, 210 NE2d 35, likewise a dramshop action, plaintiff failed to list in his answer to interrogatories the name of a witness tendered on rebuttal. The court in remanding the case said:

“The other interrogatories asked for the names and addresses of persons who were present or who witnessed the occurrence or who witnessed the gift or sale of intoxicating liquors to the plaintiff in Lefty’s Lounge. Under the interrogatories there could be no objection sustained as to the testimony of Stevens even as a witness-in-chief except if he attempted to testify to the sale of intoxicating beverages to the plaintiff. In the instant case there was sworn testimony of the plaintiff and Bonk as to their presence and that of Stevens in Lefty’s Lounge on the night of the occurrence. This was categorically denied by the bartender. Under those circumstances, even though the interrogatories were controlling (which in this case they are not), Stevens should have been permitted to testify as to the presence of the plaintiff and Bonk at the tavern and that he picked them up that evening and took them to the train. If the jury had then believed Stevens it could have disregarded the testimony of the bartender in whole or in part. In refusing to admit Stevens as a rebuttal witness the trial court abused its discretion.”

Here, the interrogatory referred to required the names and addresses of witnesses purporting to have knowledge of facts pertaining to the allegation in the complaint. Plaintiff’s complaint did not allege that she wore a neck collar for six months constantly after the accident and that she did not drive a car until May 1963; the effect of the excluded testimony was that this part of plaintiff’s testimony was not true. The excluded witness had no knowledge of the occurrence itself. Her testimony could not have decided the issue of who was responsible for the accident. Therefore, her testimony was not such as to place plaintiff in an unfair and unjust position. Plaintiff was offered the opportunity to question the witness before she testified but declined to do so. One of the essential elements of this case was the injury sustained by plaintiff. The medical evidence was essentially based on subjective complaints made by the plaintiff. The trial court by its action, denied the defendant the opportunity of impeachment on an essential issue which very likely could effect the amount of damages awarded to plaintiff. The trier of facts should hear all of the evidence relevant to the cause of action unless it is clearly obvious that the opposing party would be placed in an unfair and unjust position.


author: MORAN, J.

text:
    Mildred Gann, et al., Plaintiffs-Appellants, v. Harrisburg Community Unit School District, Defendant-Appellee.
    Gen. No. 65-78.
    Fifth District.
    July 11, 1966.

      Kern and Pearce, of Carmi, for appellants.
    Arlie O. Boswell, Sr., of Harrisburg, for appellee.
   MORAN, J.

This is an appeal from an order of the Circuit Court of Saline County, Illinois, sustaining the defendant-appellee’s motion to strike the complaint of the plaintiffs-appellants for failure to state a cause of action in a suit brought under Ill Rev Stats, ch 46, §§ 23, 24, to contest a community unit school district election.

The appellants alleged in their complaint that, pursuant to the filing of a petition and a hearing on the petition in accordance with Ill Rev Stats, ch 122, § 11-6, an election was held on May 27, 1965, for the purpose of determining whether or not a community unit school district should be established in certain contiguous areas in Saline County; that each of the appellants had been a resident of the territory included within the proposed district at the time of the election; that, in accordance with the statute, the Saline County Superintendent of Schools designated five precincts for the election; that the precinct designated number 3 did not lie within the territory comprising the proposed school district; and that, therefore, the election, which resulted in favor of the formation of the proposed district, was void and of no effect and that it should be set aside. The appellee made a motion to strike the complaint for failure to state a cause of action. The trial court sustained the motion and dismissed the complaint. The appellants seek to reverse the dismissal in order that the complaint may be heard and be determined on the merits. There are no allegations that any fraud occurred or that any voters were deterred from voting. Nor is there any allegation that persons voted who were not residents of the territory sought to be organized.

The statute governing the formation of community unit school districts expressly provides that the polling place for a particular precinct must lie within the boundaries of the precinct. Ill Rev Stats, ch 122, § 11-6, provides that after a petition has been presented concerning the formation of a school district and after the petition has been approved, the county superintendent “shall call an election to be held in the manner provided in Article 9 of this Act. . . .” Chapter 122, § 9-7, provides in part that:

In elections in all other school districts, including non-high school districts, the board of education shall establish a suitable number of voting precincts and fix the boundaries thereof for the accommodation of the voters of the district. If more than one voting precinct is established the voting precincts shall be designated by number. In each voting precinct there shall be one polling place designated by the board. . . .

At an election called by the superintendent of schools, unless otherwise provided, voting precincts shall be established and polling places designated by the county superintendent of schools in accordance with the provisions of this section. . . .

The appellants contend that this statutory provision is mandatory and, therefore, that the failure to designate polling places within the territory sought to be organized should render the election void.

A similar contention was made and overruled in People v. Graham, 267 Ill 426, 108 NE 699, a case in which the court held that the designation of a polling place for three city wards across the street from the boundary lines of two of the wards would not void a municipal election. In its decision, the court reviewed cases in other jurisdictions and stated, at 440:

The courts of last resort in a majority of these cases have held that where it was shown that no legal voter was thereby deprived of his vote and the location was not selected from any improper motive, no fraud or other harm being shown or charged, such location of a polling place would not avoid the election. (Cases cited.)

Even though there was no express statutory provision governing the location of a polling place in the Graham case, the decision is nonetheless applicable; for the court held that such a provision was implied by the spirit of the election law.

This position has also been taken in 29 CJS, Elections, § 199, where it is stated that:

(T)he rule is that, where the polling place selected by the proper officers is outside the election district, the electors of the district who vote thereat are not disenfranchised on that account if the election is otherwise lawfully conducted.

Generally, an election should be held at the time and in the place provided by law in order that it have validity. Snowball v. People ex rel. Grupe, 147 Ill 260, 35 NE 538. However, a distinction has been drawn between directory and mandatory provisions. Siedschlag v. May, 363 Ill 538, 2 NE2d 836; People v. Crossley, 261 Ill 78, 103 NE 537. The failure to follow a mandatory provision will invalidate an otherwise valid election, while the failure to follow a directory provision will not. People v. Graham, supra. This is not to say, however, that a directory provision may or should be disregarded, but only that an entire election will not be invalidated for the failure to follow such a provision. Hester v. Kamykowski, 13 Ill2d 481, 150 NE2d 196. This analysis has been used not only for general elections, but also for special school elections. People v. Kinsey, 294 Ill 530, 128 NE 561; Carr v. Board of Education of Homewood-Flossmoor Community High School Dist. No. 233, 14 Ill2d 40, 150 NE2d 583; Cashen v. Board of Education Pawnee Community Unit School Dist. No. 11, 2 Ill App2d 490, 119 NE2d 823.

The determination whether a statutory provision is mandatory or directory has depended upon the following criteria: (1) whether the statutory scheme expressly or impliedly provides that the failure to follow the provision shall render an election void; (2) whether the failure interfered in any way with the result of the election; (3) whether any person legally entitled to vote was not permitted to do so; (4) whether any person voted who was not a resident of the territory sought to be organized; (5) whether the polling place was chosen for any improper motive; and (6) whether any fraud occurred in or as a result of the selection of the polling place. People v. Green, 265 Ill 39, 106 NE 504; People v. Graham, supra; People v. Kinsey, 294 Ill 530, 128 NE 561; People v. Brown, 306 Ill 245, 137 NE 854; People v. Quilici, 309 Ill App 466, 33 NE2d 492; Cashen v. Board of Education, supra. Generally, “statutory provisions regulating the conduct of an election are deemed directory after an election in which no improper voting has occurred.” People v. Quilici, supra, at 472.

In this case, the statutory scheme does not expressly or impliedly provide that a failure to follow the provision shall render an election void. In addition, none of the adverse effects mentioned above were alleged to have occurred as a result of the failure. Nor was there any fraud alleged. Hence, the provision is directory, not mandatory, and the election need not be voided.

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

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phil Owens, Defendant-Appellant.
    Gen. No. 49,940.
    First District, First Division.
    July 11, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Mort Zwick 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 Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

After a jury trial, defendant was found guilty of voluntary manslaughter. He was sentenced to the penitentiary for a period of from 5 to 10 years. On appeal, defendant contends that the State failed to prove beyond all reasonable doubt that defendant’s fear that he would suffer great bodily harm at the hands of his aggressor was unreasonable. The Criminal Code provision in point is “Article 7 — Justifiable Use of Force; Exoneration,” which provides:

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

On October 26, 1963, and after a four-hour period of excessive consumption of intoxicating liquors in defendant’s home, an argument developed between defendant and his son-in-law, Walter Powell. In an effort to end the quarrel, defendant walked into the kitchen and was followed by his son-in-law, who was there killed by defendant in a struggle.

Rosie Lee Powell, the widow of the decedent and a daughter of defendant, testified for the State. On October 26, 1963, she was in the home of her mother and father at 441 East 41st Street, and present were the defendant (Phil Owens), her mother, herself, Willie Tutson (a friend of the decedent), Annie B. Russell (her sister), and the decedent, and they had all been drinking. A quarrel ensued between her father and mother, and as her mother was about to give coffee to Willie Tutson, her father knocked it out of her hand. “Tutson and my father were arguing and my husband pushed Tutson out of the way saying that he could do more with him than Tutson could. My father at this time had retreated to the kitchen. My husband told me to take my mother from the room. I heard my sister holler, ‘Oh, Dad, you done killed Walter.’ I came back into the room and my father was standing over him with a knife. He later died at Provident Hospital at 3:20 a. m.”

On cross-examination, she testified as to the excessive consumption of liquor. “My father, Willie Tutson, and my husband were drinking. When I left, my husband wasn’t sober but wasn’t drunk. . . . There were two arguments. The first one started when my mother asked my father to move the dresser. Willie Tutson and my father had some words about the dresser then my husband told my father, ‘Old man, sit down.’ They settled the argument, shook hands and started to drink again. I was outside when the altercation between my husband and father took place. I heard my husband say to my father, ‘You too old a man to carry on like that.’ I heard my husband tell Willie Tutson he could do more with him than he (Tutson) could. My husband weighed 250 to 261 pounds. He was a big, strong man.”

Willie Tutson, also a witness for the State, testified as to the excessive drinking and the quarrel between the defendant and the decedent. “Walter Powell then came in and asked his wife to take Mrs. Owens out, pushed me back and said to me about Owens, T can do more with him than you can.’ Mr. Powell then raised his hands and said to Owens, ‘You too old a man’, then Owens stabbed Powell in the shoulder. I was seven feet away. The stabbing occurred in the living room.”

On cross-examination, he testified there were “two hours between the first and second arguments. Owens and I drank in between the arguments. I was tipsy from the liquor I drank at that time. At the time of the final argument I told Owens he didn’t stick to his promise not to argue anymore; then Powell came in and pushed me down, got about a foot and a half away from Owens, raised his hand against Owens and pointed at him. I saw Owens stab Powell. About three minutes elapsed between the time Powell pushed me aside and the time Owens stabbed him.” On redirect, he testified, “Mr. Powell did not have a weapon in his hand at the time he was stabbed.”

The evidence for the defense consisted of the testimony of the defendant and Annie B. Russell, another daughter of defendant. Defendant testified as to the excessive drinking, and that “then I called my wife to come to me and Walter Powell told her if she didn’t want to go she didn’t have to. I told him I had been married 36 years and he had no business saying anything about what I say to my wife. That got him angry. He came in the kitchen, grabbed me by the arm. I didn’t know what he was doing. I didn’t intend to kill him. I intended to cut him to keep him off me. I am 66 years old, five foot nine and 149 lbs. Powell had previously told me he weighed 250 lbs. The fight took place in the kitchen. I had been there for 2% minutes before I was attacked. I was walking away from Walter Powell. He came in the kitchen behind me and said, ‘Old man I will shake you to death.’ I was afraid of Walter Powell. I never intended to kill Walter Powell.”

On cross-examination, he testified, “Just prior to the stabbing Walter pushed Tutson out of the way and then he grabbed me under both arms and started shaking me.”

Annie B. Russell testified, “Walter told daddy to lie down and daddy told Walter that he wasn’t speaking to him. Tutson then told Walter if he got into trouble in Chicago he couldn’t get him out of it. Tutson called to Walter who pushed him (Tutson) around. My father went into the kitchen. Walter went into the kitchen, grabbed my father under both arms and they tussled by the sink. My father picked up the knife that was on the sink and hit Walter with it on the side of the neck. My father and Walter were drunk and Tutson was high.”

On cross-examination, she testified, “I was in the bedroom doorway looking at the time of the stabbing. Walter did not have a weapon. They were tussling. My brother-in-law grabbed my father under both arms. They were facing each other. They were about two feet apart.”

Defendant argues that the issue is solely “whether this fear of great bodily harm by the defendant was a reasonable one under the facts. . . . The deceased, Walter Powell, was a big, strong man. His wife estimated his weight at 250 to 260 pounds and that he was 35 years of age. . . . Phil Owens was, at the time of the occurrence, 66 years old, five feet nine inches tall and weighed 149 pounds. It certainly cannot be seriously contended that the physical disparities between the defendant and his son-in-law are insufficient to place a reasonable fear in the defendant’s mind of great and serious bodily harm if his son-in-law should decide to do battle with him.”

As argued by the State, whether a killing is justified under the law of self-defense is always a question of fact to be determined by the jury under proper instructions. (People v. Jordan, 18 Ill2d 489, 165 NE2d 296 (1960); People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965); People v. Golson, 392 Ill 252, 64 NE2d 462 (1946).) In People v. Jordan, the Supreme Court affirmed a judgment of murder against a plea of self-defense and said (p 492):

“In order that a killing be justified on the grounds of self-defense it must appear that the danger was so urgent and pressing that in order to save the defendant’s own life or to prevent his receiving great bodily harm the killing of the other was absolutely necessary and it must appear also that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given.”

In People v. Bush, 414 Ill 441, Ill NE2d 326 (1953), the Supreme Court said (p 444):

“We have repeatedly held that one who is unlawfully assaulted and put in apparent danger of his life or of great bodily harm need not attempt to escape but may repel force with force, even to the taking of assailant’s life, if necessary or apparently so, to prevent bodily harm.”

In the instant case, it is not contended that decedent had or threatened to use any weapon of any nature. The physical proportions and ages of the decedent and the defendant were obviously disparate, and the advantage was with decedent. They had been quarreling off and on for a number of hours, with each being the assailant from time to time. It is also not disputed that the defendant struck the decedent with a knife and inflicted the mortal wound, which action defendant explains was because “I was afraid of Walter Powell.” Whether this killing was justified was a question of fact to be determined by a jury under proper instructions, and “once a jury has decided this question and has reached a verdict this court will not disturb that finding unless the evidence is palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory that it justifies entertaining a reasonable doubt of the defendant’s guilt.” (People v. Jordan, supra, pp 492, 493.)

No contention has been raised as to whether the jury was properly instructed, and as there was sufficient evidence presented to the jury to establish defendant’s guilt, beyond a reasonable doubt, of the crime of voluntary manslaughter, and as we cannot say that the evidence is palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory that it justifies entertaining a reasonable doubt of the defendant’s guilt, we see no basis for substituting our judgment for that of the jury.

Finally, defendant questions the severity of the sentence imposed, urging that he had a previous unblemished record and was “an honest, upright citizen who raised his family, worked hard and feared God, ... is 68 years old and has been incarcerated away from his family since November 25, 1963, and has been sentenced since July 1, 1964.” Defendant further argues that “his crime at most is one of being in greater fear than he should have been. Under these facts the trial court should have sentenced defendant to a sentence containing a minimum of one year.”

The State argues that as there is nothing in the record to indicate that the sentence is manifestly excessive, the sentence should be allowed to stand. In People v. Cage, 34 Ill2d 530 (1966), our Supreme Court recently said (p 535):

“The power lately given reviewing courts in this State to reduce sentences was clearly not intended as a substitute for a fair trial. Exercise of such power is intended for and restricted to the circumstances indicated in People v. Taylor, 33 Ill2d 417.”

In People v. Taylor, 33 Ill2d 417, 211 NE2d 673, in discussing the power granted to reviewing courts to reduce sentences imposed by trial courts where circumstances warrant, it is said (p 424):

“Such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

With these pronouncements in mind, we believe the circumstances portrayed by this record, in view of the age of defendant, with no previous criminal record, warrant the exercise by this court of the power to “reduce the punishment imposed by the trial court.” Ill Rev Stats 1963, ch 38, § 121-9 (b) (4).

For the reasons given, the conviction of the defendant is affirmed and the sentence of 5 to 10 years in the penitentiary is reduced to 2 to 4 years in the penitentiary. Therefore, the judgment of the Criminal Division of the Circuit Court of Cook County, as modified, is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. PRESIDING JUSTICE KLUCZYNSKI

text:
    Clarence Gallaway, et al., Plaintiffs-Appellants, v. Barbara K. Schied, Defendant-Appellee, and Apex Mutual Insurance Co., Garnishee Defendant-Appellee.
    Gen. No. 50,325.
    First District, First Division.
    July 11, 1966.

      Warren J. Hickey, of Chicago (William J. Harte, of counsel), for appellants.
    Zlatnik, Gaines, Boyer & Shepp, of Chicago (Alan I. Boyer, of counsel), for garnishee defendant-appellee.
    No brief filed for defendant-appellee.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Plaintiffs obtained default judgments in the aggregate sum of $6,050 on January 20, 1960, against defendant, Barbara Schied for personal injuries and property damage suffered by them through her alleged negligence in the operation of a motor vehicle. To satisfy said judgments, plaintiffs filed garnishment proceedings against Apex Mutual Insurance Company, her insurer. Apex defended on the ground that it was not liable due to Barbara’s failure to comply with the cooperation clause of the policy and the court sustained this defense, discharging the garnishment action. Plaintiffs appeal from this order.

We review the essential facts and events in their chronological order. The accident occurred on December 12, 1959, within the effective period of the policy. On December 15, 1959, Barbara reported the incident to 'Apex by phone and on December 28, 1959, she forwarded her written report. It was a regular accident report form which she filled in as required, except that in lieu of giving details of the accident she wrote: “The accident is on police report.”

Plaintiffs filed their suit for injuries and damages and caused summons to be served on her which summons she promptly forwarded to Apex. The record indicates that Gillin and Richter, attorneys hired by Apex, filed appearance for Barbara on February 29, 1960, and an answer contesting the action on March 7, 1960. In the meantime, Apex forwarded a letter dated March 4, 1960, to Barbara addressed to 3419 N. Lowell Avenue, Chicago, the address given in the policy and in the report as her place of residence. Apex informed her that Gillin and Richter had been retained to represent her in the suit; that it would be necessary to give the attorneys full cooperation; that she contact them within five days relative to the defense, giving the attorneys’ phone number, and that she keep Apex fully apprised of her whereabouts, specifically if she intended to leave her present address for a period in excess of two days. Her attorneys proceeded to file interrogatories and take depositions of the plaintiffs.

In a letter dated June 24 and addressed to Barbara at the Lowell Avenue address, the attorneys advised her that her deposition was scheduled for July 19, 1960, and that she appear at their office on the latter date.

On July 23, 1960, a letter similarly addressed to the insured, advised her that the deposition was rescheduled to August 15, 1960, and that it was necessary for her to appear at counsels’ office a half hour before the time designated.

On September 7, 1960, another letter was addressed to her at the Lowell Avenue address and to “General Delivery, Chicago” by the attorneys wherein it was stated that when she failed to appear on August 15, 1960, counsel phoned her employer and was informed that she had terminated her employment; that a call to her mother resulted in being informed that Barbara had moved away two weeks previously and had given her new address as “General Delivery, Chicago”; that it was imperative that she immediately contact the attorneys’ office relative to her deposition. The letter concluded with a warning that it was necessary for her to cooperate under the terms of her policy with Apex; that if they received no cooperation from her in the future they would have no alternative but to withdraw from the defense of the litigation; and that the insurance company would assume no liability for any judgment rendered against her or be liable for costs in defending the action against her. Both letters, the one addressed to Lowell Avenue and the one addressed “General Delivery” were returned unclaimed.

Apex forwarded a “Reservation of Rights” letter dated September 8,1960, to Barbara at the Lowell Avenue address and to “General Delivery.” These were returned unclaimed.

A telegram dated September 30, 1960, and forwarded to the Lowell Avenue address by Apex, contained a statement that she failed to cooperate and unless this was corrected Apex would remove itself from her defense. This telegram was returned unclaimed.

In a letter dated October 4, 1960, addressed to Barbara and forwarded to the Lowell Avenue address, the attorneys enclosed copies of plaintiffs’ notice and petition filed on October 17, 1960, for a rule to show cause based upon her failure to appear for deposition. The letter referred to the prior letters and the necessity for her to cooperate with Apex and the attorneys. This letter was returned with the legend “Move, Left No Address.” On October 17, 1960, a rule to show cause issued returnable October 25, 1960. Presumably, the rule was continued to a later date because the record discloses that on November 17, 1960, a hearing on the rule was had and the court, finding defendant at fault, struck her pleading and declared her in default. A default against her was entered with an order that the complaint be taken as confessed against her.

In the meantime, on or about October 27, 1960, Apex hired a private investigator to locate the insured. The investigation was not effective in locating the whereabouts of Barbara and written reports, submitted on January 18 and January 26, 1961, reported some information that she could be on the West Coast, possibly San Francisco or Los Angeles.

At the garnishment stage, counsel stipulated that a police officer investigating the incident would state that Barbara “was driving along, fell asleep, and was involved in the accident” and that he would further say that he “observed” an odor of alcohol on her breath.

It is elementary that any suit brought by the plaintiffs on the policy would be subjected to all defenses against liability Apex might have if the insured had sued. Plaintiffs had no greater rights than those of the insured. Zitnik v. Burik, 395 Ill 182, 69 NE2d 888 (1946); Firebaugh v. Jumes, 341 Ill App 1, 92 NE2d 790 (1950); Schneider v. Autoist Mut. Ins. Co., 346 Ill 137, 178 NE 466 (1931). Therefore, any material breach by Barbara would relieve Apex of liability.

Plaintiffs argue, however, that the undisputed evidence demonstrates that the absence of the insured was not a material breach of the insurance contract. They say that an absolute compliance is not necessary, especially “where cooperation is not only not beneficial but harmful to the insured.” [sic] (insurer.)

It is generally held that the lack of cooperation by an insured in failing to attend the trial or to testify, must be substantial or material and that a technical or inconsequential lack of cooperation is insufficient to void the policy. 60 ALR2d p 1150. Whether the failure to appear, attend the trial, give testimony, or whether any other conduct and actions of the insured create a substantial or material breach of the policy, is a question of fact to be determined from the facts and circumstances of the particular case.

In Schneider, our Supreme Court made the statement (p 140) that: “Without the presence of the assured and his aid in preparing the case for trial the insurance company is handicapped and such lack of cooperation must result in making the action incapable of defense.” In Shalita v. American Motorists Ins. Co., 266 App Div 131, 41 NYS2d 507, ret and app den 266 App Div 885, 44 NYS2d 101, where the insured disappeared prior to the commencement of a personal injury action against him, it was held that he had breached the policy even though his testimony as to the cause of the accident might have been adverse to the insurer, since his absence was a serious handicap to the insurer in a settlement of the claim or upon a trial for the determination of damages.

In Indemnity Ins. Co. of North America v. Smith, 197 Md 160, 78 A2d 461 (1951) the court stated that the failure of the insured to comply with the condition requiring him to attend hearings and trials precludes recovery from the insurer by the person injured, even though cooperation might not have defeated the plaintiff’s claim for damages. See also, Royal Indemnity Co. v. Rexford, 197 F2d 83 (1952 CA 5th Fla) wherein the court approved, arguendo, the statement that the very fact that an insured is absent from the trial without explanation is prejudicial to the rights of the insured and has a material effect on the verdict.

In the case at bar, because of the failure of the insured to appear for deposition, her pleadings were stricken and the issue of liability was determined adversely. The opportunity to contest the issues of contributory negligence, due care, proximate cause, and of cross-examination, etc., were precluded. The circumstances concerning the degree of impact, res gestae reaction, if any, and incidents that might assist in the true determination of damages were denied to the defense. There can be no doubt that the conduct of the insured in failing to cooperate substantially and materially affected the insurer and its rights.

Plaintiffs next contend that Apex must demonstrate that it was actually prejudiced by the failure to cooperate. Allstate Ins. Co. v. Keller, 17 Ill App2d 44, 149 NE2d 482 (1958) dealt with the defense of failure to comply with a cooperation clause. The court found that misrepresentation by the insured as to the identity of the car constituted a breach of the clause. The issue of whether the insurer must show prejudice was raised. The court found no clear Illinois precedence in this area and further that there was a divergence of opinion stemming largely from the characterization of the clause as either a condition precedent or a condition subsequent, with prejudice necessary only to establish a breach of the latter. The court said (p 48):

In the Schneider case [346 Ill 137 (1931)], there was unquestionable prejudice to the insurer; in the Harrison case [255 Ill App 263 (1929)] the court recognized the conflict among the court of other jurisdictions and held that the question of the insured’s co-operation was for the jury to determine; in the Rowoldt case [305 Ill App 93 (1940)], the court held that the insurer had waived the benefit of any breach and indicated further, in strong dictum, that prejudice to the insurer had to be shown before a breach could be established.

The court after reviewing automobile liability insurance and its relationship to the public, said (p 49):

The courts cannot condone or support a doctrine that might ultimately make the cost of insurance protection prohibitive. Compliance with its terms is therefore vital to all who may benefit, either directly or indirectly, from its provisions. For this reason we are of the opinion that strict compliance is in the best interest of the public and not defendant’s [insured’s] theory that failure to comply with the co-operation clause must be shown to be prejudicial to the insurer in order to constitute a breach which would allow the insurer to disclaim liability.

In Potomac Ins. Co. v. Stanley, 281 F2d 775 (CA 7th Ind) the failure of the insured to attend the trial and aid in the defense was held to be prejudicial per se. Other cases have held that at least prejudice will be presumed as a matter of law from the substantial wilful breach by the insured of the cooperation clause. 7 Am Jur2d, § 176, p 509.

We believe the conclusion expressed in the Keller case to be sound law and hold that if there is a substantial or material lack of cooperation found as a matter of fact, the insurer is not required to establish prejudice or detriment thereby in order to disclaim liability.

Plaintiffs further contend that Barbara did cooperate with Apex, having promptly notified it of the occurrence, forwarded the summons and complaint and filed the insurer’s accident report. They question the proof that she did know she was required to give her deposition. Plaintiffs say that “she had some time in the summer of 1960 merely departed from the Chicago area for San Francisco. She did not, at any time refuse to cooperate.”

The letters addressed and mailed to Barbara prior to August 15, 1960, that is, on March 4, March 7, June 24, and July 23, 1960, were not returned. In the absence of evidence to the contrary, such proof raises the presumption that they were received by the addressee in due course of the mail. Loving v. Allstate, 17 Ill App2d 230, 149 NE2d 641 (1958). When the receipt thereof is not denied it becomes a presumption of fact. 18 ILP Evidence, § 28, p 166. The proof established the fact that Barbara left the Lowell Avenue address, where she lived with her mother, about two weeks prior to August 15, 1960, and presumably was there when the prior letters were addressed and forwarded.

The trial court indicated that Apex exercised good faith and reasonable diligence to contact its insured when it specifically remarked: “I don’t see they could do anything more than they did.” The conduct of the insured here clearly indicated a wilful refusal to respond and cooperate. Apex, in our opinion, used reasonable diligence in its attempt to ascertain her whereabouts and to procure her assistance as required by the policy.

The record indicates that the hearing on the question of damages and judgment for plaintiffs was had on January 20, 1961, “after due notice to all parties and their counsel,” and that plaintiffs had previously, on December 20, 1960, upon due notice, waived their right to trial by jury, having withdrawn their jury demand. It is further conceded that counsel for the insured was present but was prevented from cross-examining the plaintiffs relative to the issue of damages. The court instructed counsel to sit down and not examine the witnesses and so he remained present but did not participate.

Plaintiffs, conceding the court’s ruling was error, say: “Still they did not withdraw, nor did they make objection to the judge’s ruling, nor did they appeal his action. And with good reason. While they ostensibly were representing the insured, they were in fact representing the insurer.”

Plaintiffs contend that “since Apex’s counsel continued to represent and still represent insured following the purported breach of her insurance contract, it has waived the breach of the cooperation clause.” They argue that the attorneys continued to defend the insured after her disappearance and still do, having not withdrawn; that the attorneys were present during all hearings in the case in chief and most significantly during the hearing on damages; and that “an insurance company which continues in a case after notice and knowledge of a purported violation of the ‘non-cooperation’ clause and where it has never informed the insured of a ‘reservation of rights’ thereby waives the defense of non-cooperation.”

It has long been settled that an insurer will not be estopped from setting up the defense of noncooperation by participating in the defense of the action against the insured, if, at the same time, it gives notice to the insured that it does not waive the benefit of such defense. Hinchcliff v. Insurance Co. of North America, 277 Ill App 109, 125 (1934); Ancateau v. Commercial Cas. Ins. Co., 318 Ill App 553, 48 NE2d 440 (1943).

When the insured herein failed to cooperate by not appearing for the deposition hearing on August 15, 1960, and did not communicate with Apex, it forwarded, on September 8, 1960, a disclaimer of liability and a reservation of all rights and defenses which it had and stated that any further investigation or defense by it in her behalf was not to be considered a waiver of its rights. This, in our opinion, constituted a prompt disclaimer of liability and a proper reservation of insurer’s rights as to preclude any claim of waiver. As to the contention that there was no proof that the insured received the letter of September 8, we find, in 7 Am Jur2d, § 184, p 523, the following statement:

And in a case where the insured has disappeared and the insurer makes diligent but unavailing efforts to find him, the insurer’s mailing of a notice of disclaimer to the insured will generally be held sufficient to protect the insurer against a waiver or estoppel to assert a breach of the co-operation clause by the insured, even in the absence of affirmative evidence to show that the insured actually received the notice of disclaimer. (Citing authorities.)

This, to us, is sound law and we adopt it to the situation in this cause. Barbara’s wilful disappearance cannot be allowed to prevent Apex from disclaiming liability and proceeding under a reservation of rights. Furthermore, the insured suffered no damage by the efforts of Apex in her behalf and the doctrine of waiver, or estoppel in pais can have no application under the circumstances in this case. See Durbin for Use of Ferdman v. Lord, 329 Ill App 333, 68 NE2d 537 (1946).

For the reasons herein expressed the judgment of the Circuit Court is affirmed.

Affirmed.

MURPHY and BURMAN, JJ„ concur.

       “We reserve all rights and defenses which we have under the above numbered policy.
      “We further notify you that any investigation we may undertake or any defense on your behalf arising out of any action or actions instituted against you in any Court of law does not, and shall not be constituted and considered a waiver of any of our rights nor admission of any obligation or liability to defend such action on your behalf.
      “The intent of this notification is to preserve the rights of all parties hereto and to permit an investigation by us of the cause of the accident without regard to the liability, or admission of any liability on our part.”