author: MR. JUSTICE MURPHY KLUCZYNSKI, P. J„

text:
    Mary Borries, Plaintiff-Appellant, v. Z. Frank, Incorporated, and Ronald Schultz, Defendants-Appellees.
    Gen. No. 50,408.
    First District, First Division.
    July 11, 1966.
    Rehearing denied August 1, 1966.

      KLUCZYNSKI, P. J., dissenting.
    Delbert T. Been, of Chicago (Ely Hefter, of counsel), for appellant.
    Menk & Johnson, of Chicago (John Cadwalader Menk, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury case, in which the jury returned a $30,000 general verdict for plaintiff. The jury also returned a special interrogatory, which found that plaintiff was “guilty of negligence which proximately contributed to cause the occurrence in question.” The trial court denied plaintiff’s motion to set aside the answer to the special interrogatory and entered judgment for defendants. Plaintiff appeals.

On September 27, 1960, at approximately 4:30 to 5:00 p. m., plaintiff, a pedestrian, was struck by the rear end of a car, which backed into her. The scene of the occurrence was mid-block on Bryn Mawr Avenue, a busy thoroughfare in Chicago. She sustained a hip fracture and was hospitalized. She was treated by various doctors, was in a walker for 6% months and on crutches until August 1961. At the time of her injury, plaintiff was employed as a waitress. She was unable to resume work until July 1, 1962, when she commenced working as a desk clerk in a motel.

Plaintiff’s determinative contention is that the trial court erred in failing to set aside the special finding, the answer to the special interrogatory, and enter judgment for plaintiff on the general verdict, as no evidence was offered to refute plaintiff’s evidence, or, in the alternative, to grant plaintiff a new trial, as the special finding was against the manifest weight of the evidence.

Defendants contend that the purpose of the special interrogatory is to test the general verdict and “to complain that the two ‘verdicts’ were inconsistent is simply to say that the special interrogatory served its function as provided by the statutory provision. The point is well illustrated by the court’s decision in the case of Wise v. Wise, 22 Ill App2d 54-58, 159 NE2d 500-502. The court there said, in .answer to the same argument made here by the plaintiff:

“The statute expressly provides that the answer to the special interrogatory controls the general verdict. Ill Rev St, Ch 110, Sec 65. This statute would be completely nullified if a court disregarded its mandate and ordered a new trial on the ground the inconsistency showed ‘confusion’.”

“In short, it is pointless to be arguing about the inconsistency between the jury’s special finding and the general verdict, since the possibility of such a result is clearly contemplated by the statutory provision which authorizes the use of such special interrogatories. See 35 ILP Trial, Sec 331-339.”

The occurrence witnesses were plaintiff, an eyewitness named Mildred Koontz, and defendant Schultz. Plaintiff’s testimony shows that she lived in the Bryn Mawr Hotel on the southwest corner of the intersection of Bryn Mawr and Kenmore. Plaintiff came out of the hotel on the Bryn Mawr side, through a cleaning shop, intending to visit a beauty shop, which was located on the north side of Bryn Mawr at about the middle of the half-block which runs from Kenmore on the east to the alley on the west. The front entrance of the hotel is on Kenmore, a short distance from the intersection of Kenmore and Bryn Mawr, where there was a marked crosswalk protected by traffic lights. The cleaning shop was about in the center of the block on the first floor level of the Bryn Mawr Hotel, east of the scene of the occurrence.

On cross-examination, plaintiff testified, "... I actually saw the car just as it hit me. I saw this car that was parked there; as it hit me I saw it and fell right to the street. . . . Instead of coming out of the front entrance I came out through the cleaning shop. I was not late for my appointment. I came out and walked west, to a point further down from the beauty parlor, further down to the alley. The beauty parlor was about three or four buildings up further east. I could see it by looking across the street. I wasn’t directly across from the beauty shop because I had gone down to the alley to cross. I remember this car that was parked there at the curb. There was no car parked back of it. There were a number of cars parked along there, and I noted particularly this car as I passed it. I looked at it to see if someone was in it before I stepped — went by it, so if he —see if somebody was in it, because I was going to cross. ... I looked into because I was going to cross at the alley . . . and if somebody had been in it, I wouldn’t have done it. I thought someone might back up so I didn’t step in. I walked down about seven or eight feet in back of the car. I was standing close to the alley; I would say a couple of feet, two or three feet. I was in line with the door of the TV shop when I stepped off. I was looking north; that would be straight in the direction in which I was going. As I walked behind this car, I looked again at this car, as I walked in back of it. I did not see anybody in it. I did not see anybody around it. I continued walking and walked about five feet out off the curb. . . . I was standing in back of the driver’s seat in the car. ... As I walked out I looked again, and I did not see anybody. When I reached this five feet mark I stood there for several minutes — a couple of minutes, then just — well, just standing there waiting to cross the street. I looked both ways, up and down watching the traffic to wait for the red light to come on up at Kenmore so I could cross. I was watching the light up at Kenmore to see if I would be able to cross. I was particularly interested in the light at Kenmore. I did not see a man come around this car, open the door, or put anything in the driver’s side or get into the car on the driver’s side. I did not hear any motor start. I was about seven or eight feet back of the car. I did not see the car begin to move towards me. I did not notice Mrs. Koontz across the street.”

Mildred Koontz testified that she was employed as a beautician at 1044 West Bryn Mawr Avenue, just west of Kenmore on the north side of the street. She knew plaintiff, who had an appointment with her “around 4:00 or 4:30 in the afternoon.” She had finished with her last customer and was waiting for plaintiff to come in. “I had occasion to look out and I was watching for Mary Borries. I did not see her at that time. While I was standing there I observed a man coming out of the liquor store across the street and get into his car. He got into his car, and then I see him get out of his car and walk toward the back of his car, and then I notice there was a person lying back of the car on the street. At that time I did not recognize this person. When I saw him pick her up I realized that it was my customer, Mary Borries, so I went over to assist her. . . . The first time I saw Mary Borries on that day she was lying on the street ... in front of the door of the radio store generally. I saw the driver of the car where the car was parked prior to the time that it was moved, and the car was parked in front of the liquor store .... I observed the man (defendant Schultz) walk in front of his car and walked around to the driver’s side, got into the car on the driver’s side. He had a carton of something, I don’t know what it was; it was just a carton. The door of the beauty shop was open. I did not hear any horn at any time prior to the time that he backed his car up.”

On cross-examination, she testified, “ . . . The beauty shop is east of the alley, in about the middle of the block between the alley and Kenmore; that is, the middle of the half block. There is a traffic signal at Bryn Mawr, and there are marked pedestrian crosswalks there.”

Defendant Schultz, called by plaintiff as if under cross-examination, testified that he had parked his car two parking spaces from the alley, and there was a car between his car and the alley, with a normal space of three or four feet. He went to the supermarket, came back to his car, and his recollection was that he got in on the driver’s side. He turned on the ignition, looked back, then went forward, put the car in reverse and looked back again. At that time he saw an arm going up at the right rear of the car, toward the curb. He immediately stopped his car and went around to the back, where he found the plaintiff lying by the curb in the street. At no time before the occurrence did he see plaintiff. “I didn’t pass her on the sidewalk. I didn’t see her standing behind the car when I got in. The first time I saw the plaintiff was when an arm went up to the right rear of the car.”

Testimony was introduced by plaintiff as to her injuries and her physical condition prior to the occurrence and after the occurrence, and it is not material to any of the issues raised on appeal.

At the close of all of the evidence offered on behalf of plaintiff, the defendants moved to adopt the testimony of defendant Schultz, called under section 60 as an adverse witness, and offered some photographs of the scene of the occurrence, which were received in evidence.

The special interrogatory given on behalf of defendants was the following: “Interrogatory — Was the plaintiff guilty of negligence which proximately contributed to cause the occurrence in question ?” Answer — “Yes,” and signed by the foreman and eleven other jurors.

The instructions to the jury included IPI 21.02:

“The plaintiff has the burden of proving each of the following propositions:
“First, that the plaintiff before and at the time of the occurrence was using ordinary care for her own safety;
“Second, that the defendants acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendants were negligent;
“Third, that the plaintiff was injured in her person;
“Fourth, that the negligence of the defendants were a proximate cause of the injury or damage to the plaintiff.
“If you find from your consideration of all the evidence that each if these propositions has been proved then your verdict should be for the plaintiff, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendants.”

Plaintiff contends that the special finding and the general verdict are inconsistent with one another and indicate that the jury was confused, and that there is no evidence to support the special finding. Plaintiff’s authorities include:

Young v. Illinois Cent. R. Co., 319 Ill App 311, 49 NE2d 268 (1943), in which it is said (p 322):

“The affirmative finding of a special verdict of negligence is not binding upon the trial court upon defendant’s motion to set it aside, if it is not supported by any evidence, or if, as here, it is contrary to the manifest weight of the evidence.”

Todd v. Borowski, 25 Ill App2d 367, 166 NE2d 296 (1960), (at p 375):

“The affirmative or negative answer of the jury to a proper special interrogatory of either party as to a material question of ultimate fact, such as the alleged wilful and wanton acts of either party, is binding on the trial court (upon the other party’s motion to set it aside) unless such is not supported by any competent evidence, or unless it is against the manifest weight of the evidence. . . .

And, on page 381, it is said that the special finding cannot be said to be against the manifest weight of the evidence if “an opposite conclusion is not clearly apparent, and the finding is not clearly or palpably against the manifest weight of the evidence. . . .”

Defendants contend that the trial court’s action in denying plaintiff’s motion to set aside the jury finding on the special interrogatory was justified by the evidence. Defendants argue that plaintiff failed to keep a proper lookout, and the law does not permit plaintiff to say that she failed to see that which she had to see if she had looked.

Defendants point out that there are serious differences between the testimony of plaintiff and Mildred Koontz, in that Miss Koontz saw the defendant and all of his actions and failed to see the plaintiff until after the occurrence, although plaintiff stood in the street for several minutes almost opposite the beauty shop. Miss Koontz saw defendant come out of the store with a carton and walk around the front of his car and open the door on the driver’s side and get in. Defendants argue, “How could Miss Koontz from across the street, see all this activity around defendant’s car, and the plaintiff see none of it, although plaintiff is supposed to have been standing only about seven or eight feet from the car, looking to the east (toward the car) watching for a change in the traffic lights? The jury could well conclude, and we so urged in our closing argument, that plaintiff either kept no lookout at all or actually never did stand out in the street for several minutes, but simply quickly stepped off the curb, in back of defendant’s car, without looking, and so unexpectedly that defendant Schultz had no chance to see her.”

Defendants further argue the jury was not compelled to accept plaintiff’s testimony at face value in the absence of direct contradiction by the defendant. Cited in support of this point is Hadley v. White, 367 Ill 406, 11 NE2d 813 (1937), where it is said (p 412):

“As this court has frequently pointed out, the testimony of a witness may contain, within itself, its own impeachment, and he may be contradicted by what he states as well as by adverse testimony, and there may be so many omissions, discrepancies and improbabilities in his testimony as to justify a court or jury in disregarding it in its entirety.”

We agree with the foregoing contentions of defendants, but we are not persuaded, under the cireumstances of this case, that the court was correct in denying plaintiff’s motion to set aside the answer of the jury to the special interrogatory, nor are we persuaded that the answer to the special interrogatory was against the manifest weight of the evidence, and that the general verdict for plaintiff should prevail.

Plaintiff’s testimony is that defendant’s car was parked and unattended immediately before she was struck, and that it was being driven in the reverse, without any warning to pedestrians, as she was attempting to cross the roadway at a point other than a marked crosswalk. Reasonable men might differ as to whether plaintiff was in the exercise of due care for her own safety under the circumstances portrayed here. Reasonable men might believe lack of due care is demonstrated by any attempt to cross a busy thoroughfare, at mid-block, even though the pedestrian maintains a conscious and continued effort to keep a proper lookout. Others might defend a pedestrian crossing a roadway in heavy traffic at any point other than a marked crosswalk, if the crossing is performed with due care, because of the provisions of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1965, c 95½, §§ 170-172), which cover “Pedestrians’ Rights and Duties.”

These divergent views as to crossing a highway at other than a crosswalk show that the giving of the instant interrogatory was not improper in this case, and we cannot say that the jury finding on this issue was against the manifest weight of the evidence, even though defendants offered no evidence to refute plaintiff’s testimony. However, the manifest inconsistency of the two findings of the jury on a basic and material issue, plaintiff’s negligence, after the giving of the special interrogatory and IPI Instruction No. 21.02, indicates the jury was confused or not fully instructed on that issue. Therefore, the established rule that a special finding controls an inconsistent verdict should not be applied here. Stefan v. Elgin, J. & E. Ry. Co., 2 Ill App2d 300, 309, 120 NE2d 52 (1954).

This case presented a difficult liability question. A $30,000 verdict for plaintiff is quite substantial and shows that the jury gave plaintiff’s injuries much consideration, and for the jury to also find that plaintiff was “guilty of negligence which proximately contributed to cause the occurrence in question” shows conclusively that the jury was either confused or unable to grasp the inconsistency in its verdicts. A trial court is allowed greater latitude in granting a new trial than in denying one, and in the instant case, where the inconsistency in the verdicts clearly demonstrates an unawareness of the issues by the jury and of the conflicting nature of the verdicts being returned, we think that justice demands that a new trial be granted. Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 140, 200 NE2d 128 (1964).

The judgment of the Circuit Court is reversed and the cause is remanded for a new trial and proceedings not inconsistent with the views expressed herein.

Reversed and remanded with directions.

BURMAN, J., concurs.

KLUCZYNSKI, P. J„

dissenting.

Section 65 of the Civil Practice Act prescribes that the jury “must be required on request of any party to find specially upon any material question or questions of fact stated to them in writing.” Ill Rev Stats, c 110, § 65 (1963). Defendants did request and the court did submit a special interrogatory on the basic and material question of whether plaintiff was guilty of contributory negligence. The trial court entered judgment in accordance with the answer to the special interrogatory, applying the provision of section 65 that it controlled the general verdict.

My colleagues of the majority found that the special interrogatory was not improperly given. They also accepted defendants’ contentions that there was proof substantiating the jury’s answer to the interrogatory and they rejected plaintiff’s contention that the answer was against the manifest weight of the evidence. Yet they rule that the trial court erred in not setting aside the answer to the special interrogatory because the awarding of substantial damages by its general verdict and its special finding against the plaintiff on the basic material issue of due care is so inconsistent as to show conclusively that the jury was not fully instructed and was confused and unable to grasp the inconsistency.

The effect of such ruling is to say that whenever 21.02 of the IPI or any similar instruction is given regarding the burden of proof or any ultimate fact, the jury cannot be required to find specially upon any of the propositions therein mentioned; that such situation regardless of the nature of the case would require a general verdict only.

I cannot agree. Section 65 specifically contemplates inconsistency between general verdicts and special interrogatories. In fact, the authorities hold that the inconsistency under that section must be absolute and wholly irreconcilable. In Moyers v. Chicago & E. I. R. Co., 43 Ill App2d 316, 193 NE2d 604 (1963), the trial court denied the request for a special interrogatory on the question of contributory negligence and the jury returned a general verdict awarding $65,000 in damages. The plaintiff’s objection to the giving of the special interrogatory was that the issue was covered by other instructions and would be included in the jury’s verdict. The court, on page 317, held:

This objection is without merit. No matter how completely and accurately the jury is instructed, this is no ground for objection to a proper interrogatory, and, since the interrogatory must be on an ultimate issue of fact, it always is covered by the general verdict. The important point is, that the answer to the special interrogatory controls the general verdict and will nullify the verdict if inconsistent therewith.

Section 65 of the Practice Act provides that the jury may be required by the Court “and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing”.

It is uniformly held that this provision of the statute is mandatory and the court has no discretion to refuse the request if it is on a material ultimate fact. Jones v. Phillips, 349 Ill App 393, 110 NE2d 758; Todd v. Borowski, 25 Ill App2d 367, 166 NE2d 296; Millsap v. Central Wisconsin Motor Transp. Co., 41 Ill App2d 1, 189 NE2d 793.

These cited cases also clearly demonstrate that the negligence of a defendant and contributory negligence of a plaintiff are material ultimate facts. The tendered interrogatory and accompanying instructions should have been given. For this reason the judgment is reversed and the cause remanded for a new trial.

It was held in Hulke v. International Mfg. Co., 14 Ill App2d 5, 51, 142 NE2d 717, 741 (1957) that:

A special interrogatory is not proper unless it relates to one of the ultimate facts upon which the rights of the parties directly depend and unless the answer responsive thereto would be inconsistent with some general verdict which might be returned upon the issues in the case. Interrogatories which ask for a special finding as to evidentiary facts are never proper, even though ultimate facts may be deduced therefrom by reason or argument.

See also, Brackett v. Osborne, 44 Ill App2d 441, 456, 195 NE2d 8 (1963).

And so the purpose of special interrogatories is to test the general verdict against the jury’s conclusions as to the ultimate controlling facts, and must necessarily be accompanied by a general verdict. Haywood v. Swift & Co., 53 Ill App2d 179, 181, 202 NE2d 880 (1964).

In North Shore Sanitary Dist. v. Schulik, 12 Ill2d 309, 312, 146 NE2d 25, 26 (1957), after finding that the special interrogatory relating to the ultimate fact (depreciation of the property by condemnation) upon which the rights of the parties depended, the court said:

Section 65 of the Civil Practice Act . . . reads in part as follows: “When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly”. We have held under an early similar statutory provision that the failure to enter a judgment on the special finding rather than the general verdict was reversible error. (Crosse v. Knights of Honor, 254 Ill 80.) Here, the existence of depreciation is a prerequisite to an award of substantial damages. The special finding of the jury (that there was not any depreciation) precludes such an award, and the judgment should have been entered on the special finding unless it was manifestly against the weight of the evidence.

In the instant case, where the special finding was founded in proof and was not against the manifest weight of the evidence and the interrogatory was proper, if the trial court had failed to enter judgment on the special finding as against the general verdict, it might be held to constitute reversible error. But when the trial court enters judgment according to the special finding, it is imperative to note for purposes of review that it is acting within the discretion given by the express language of section 65 which provides that “the court may render judgment accordingly.” Hence, on review, in absence of a showing of an abuse by the trial court of this discretion, the trial court’s judgment should not be overturned. There is no basis in the present case for finding that the trial court abused its discretion; therefore, I would affirm.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Kelly, Defendant-Appellant.
    Gen. No. 50,953.
    First District, First Division.
    July 11, 1966.

      Ira Bell, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Two indictments, charging armed robbery, were returned against defendant, Charles Kelly, and James Randall. Randall pleaded guilty and testified against defendant Kelly in a jury trial, in which the two indictments were consolidated. Defendant was found guilty on both indictments and was sentenced to the penitentiary for a period of four to eight years on each indictment, with the sentences to run concurrently.

On appeal, defendant Kelly contends the court committed prejudicial error (1) “when it denied defendant the right to cross examine a confessed accomplice with regard to whether the confessed accomplice had pending before the court an application for probation”; and (2) “when it refused to give the jury instructions explaining the law applicable to accomplice testimony.”

The five witnesses who testified on behalf of the State included two victims of the alleged offenses, two arresting police officers, and the accomplice Randall, who, at the time he testified, had previously pleaded guilty to the indictments and had an application for probation pending before another trial judge.

Randall testified that on the morning of November 2, 1962, defendant Kelly, Randall and a third person named Wallace planned to hold up Spike’s Tavern at 4308 South Ashland Avenue. Wallace drove defendant Kelly and Randall to Spike’s Tavern and, in the course of the ride, Wallace gave Randall a gun. It was agreed that Randall would go into the tavern first and force the owner into the washroom in the tavern. Thereafter, defendant Kelly would come into the tavern and help Randall complete the holdup, since Kelly was familiar with where the money was kept. The driver was to stay in the car, and the money was to be split evenly. The reason for Randall going into the tavern first was because defendant Kelly said he was known by the tavern owner.

When they arrived near Spike’s Tavern, Randall got out of the car and went into the tavern and saw the owner and two patrons. Randall ordered and drank two bottles of beer. He then walked toward the door and pulled out his revolver and told the two patrons and the owner that it was a “stick up.” He ordered them into the washroom, closed the door and asked for their money. The owner gave his bankroll to Randall, and one of the patrons gave him a handful of change. Randall dropped the owner’s wallet, and as Randall was reaching down to pick it up, the patrons grabbed him and his revolver. While they were wrestling for possession of the revolver, the owner ran out of the washroom to the bar to get his revolver, and as he was going behind the bar, Randall heard the owner holler, “ ‘Say, there is another one,’ and I turns and looks and I get a glimpse of Kelly going out the door.” On further examination, Randall identified Kelly as the man “who rode in the car and who you saw going out of the tavern.”

After defendant Kelly left the tavern, the tavern owner and the patrons captured Randall, and he was turned over to the police shortly thereafter.

The tavern owner, Stanley Howaniec, testified that after he served Randall a beer, he went to a window and noticed defendant walk by. When he turned around, Randall was pointing a gun at him and ordered him and the patrons into the washroom. While they were in the washroom, Randall demanded their wallets, and as Randall was examining Howaniec’s wallet, Chester Mack, one of the patrons, pushed him toward the door, and “the door opened, and Charles Kelly over there was behind the bar. He jumped out from behind the bar. ... he ran out the door, I ran behind the bar and got my gun and I fired four or five shots in the air, and a motorcycle policeman come in. I told him, ‘Got a stickup man in there.’ Then he told me to call the police.” He saw defendant Kelly enter the car and drive away. He further testified that he had seen Kelly before in the tavern, “the last few months he was coming in pretty regular on Friday night,” and that defendant “jumped out in front of the bar and was facing the gun toward us . . . .”

Chester Mack, one of the patrons, testified that he saw Randall come into the bar and order two bottles of beer. When he got the second bottle of beer, he turned around and said, “This was a stick up, go in the ladies’ washroom .... We got in there, he asked me for my money, so I gave him $10. ... So he took the wallet [Howaniec’s]. As he was looking through the wallet I made a grab for the gun, and Stanley and Louie helped me, and we overpowered him. At the same time the door opened up in the washroom and we could see this man now known as Kelly. I could see him coming from behind the bar, and he stood in the doorway. The door was opened in the tavern, and he was pointing a gun at us.” He further testified as to the overpowering of Randall and his subsequent arrest.

Defendant testified that on the morning of November 2, 1962, he and Wallace met Randall at Randall’s home, and that thereafter Wallace, Randall and defendant drove to a restaurant on 43rd Street, where they had coffee. Wallace, Randall and defendant Kelly then drove to the College Inn, where Randall got out of the car to make an application for a job. Thereafter, defendant and Wallace drove to a service station, where they purchased gasoline. At the same time they also attempted to purchase cigarettes, but the service station did not have any cigarettes. At defendant’s suggestion, Wallace and defendant then drove to Spike’s Tavern, in order to get cigarettes for 21 cents a package. Defendant walked into Spike’s, rapped on the bar for service, and “as soon as I pecked on the bar they tumbled out the bathroom, Spike, Randall, and the other two fellows. . . . Yes, that is when I left.” Defendant took nothing from the tavern.

Defendant further stated that on the night of November 1, he spoke by telephone with Randall, and at that time advised him that defendant thought he had a job for Randall. Defendant told Randall that defendant had to go to Wilson & Company the next morning because Wilson & Company had called defendant back to work. Defendant told Randall that he would see him the next morning. Defendant denied having any discussion with Randall concerning the robbery of Spike’s Tavern or any other robbery.

Defendant also testified that he had been convicted of a felony in January 1962, “assault with a robbery charge.” He pleaded guilty and got five years’ probation and was on probation on November 2,1962.

On cross-examination, defendant testified that he had been going into “Spike’s Tavern” for about three years, “on Friday nights, payday,” and had seen the tavern owner cash checks, and when Wallace drove the car “from Randall’s house to Spike’s Tavern at 4308 South Ash-land Avenue,” defendant sat in the back seat and Randall and Wallace sat in the front seat. In response to the question, “What were you and Randall talking about in that car from the time you left Randall’s house until he got out of the car at the home — in the vicinity of 4308 South Ashland Avenue ?” defendant answered, “Talking about girls, jobs, and things like that.” While he was in the tavern and the men, including Randall, came out of the washroom, he testified, “Yes, I seen a gun. They all had their hands on it. I don’t know who had the gun, but all had their hands on it.”

Defendant’s principal contention of reversible error is grounded on the assertion that Randall’s testimony was crucial to the State’s case against defendant, and “defendant was prevented by the Court from inquiring as to whether Randall, an admitted accomplice and participant in the commission of a felony, had an application for probation pending with the Court.”

The record shows that when Randall was cross-examined by the defense, he was asked, “You have an application for probation?” The court sustained the objection of the State, and in a conference between court and counsel, outside of the presence of the jury, the trial court finally said, “The Court answers you this way. The jury is not permitted to speculate whether the Court is going to give this defendant probation or time in jail. The Court will allow you to put in evidence that the witness on the stand now has pleaded guilty and is awaiting sentence. Never mind the probation. . . . Waiting sentence does not mean he is going to be put on probation or he is going to be sent to jail. It is all speculative, and the jury has no right to speculate.”

The record further shows that in the presence of the jury, and on the resumption of the cross-examination of Randall, Randall was asked, “Did either of them [Assistant State’s Attorneys] tell you what sentence they would recommend in return for your testifying in this case against Mr. Kelly?” The State, after the court sustained its objection, withdrew the objection, and on the question being repeated, the witness answered, “No, they didn’t.” Further cross-examination on this question of probation resulted in the court stating in the presence of the jury, “Well, strike the word probation and don’t talk about probation.” Defendant’s motion for a mistrial was denied. The court permitted further cross-examination of Randall as to the two State’s Attorneys with whom he spoke prior to the trial and during the trial, but sustained further questions as to what consideration he was to receive for testifying, the basis of the State’s objection being, “This man already said he was going to get no consideration.” Prolonged cross-examination in this area brought the further remark from the trial court, “He has no right to assume he is going to get probation because that is something for the Court to decide.”

The authorities cited by defendant on this contention include People v. Maggio, 324 Ill 516, 155 NE 373 (1927), where the court said (pp 525, 529):

“It is apparent that the conviction depends in large measure upon the relative credibility of Backley and the plaintiff in error, — the former a co-defendant though not on trial, a confessed accomplice guilty of the murder and an active participant in the crime, .... If Backley was granted immunity from punishment for the crime in consideration of his testimony, every person accused of the crime against whom he testified had the right to show that he had been granted such immunity, ... in order that the jury might, in weighing his testimony, draw such inferences from it as were proper, considered in connection with all the circumstances of his guilt and of the promise of immunity.

“The testimony of an accomplice is competent evidence, and, although uncorroborated, may be sufficient to sustain a conviction if it is of such a character as to prove guilt beyond a reasonable doubt. It is always, however, subject to grave suspicion and should be acted on with great caution. ... A defendant against whom an accomplice in the crime testifies is therefore entitled to cross-examine such witness and interrogate him freely as to his motives, bias and interest, his relation to the crime and the persons connected with it, and any matters which tend to impeach his fairness or impartiality. The jury were denied the information that Backley had been promised freedom in consideration of his testifying against DeFranco, and the State’s attorney presented him as being what he professed, — a defendant who had offered himself as a witness without promise of immunity or upon any consideration but a desire to tell the truth, and who had voluntarily undertaken to testify as a witness for the People solely from such desire to tell the truth and accept such punishment as the court might see fit to impose, without any restriction.”

In People v. Hermens, 5 Ill2d 277, 125 NE2d 500 (1955), the court said (pp 285, 286):

“At common law the uncorroborated testimony of an alleged accomplice was sufficient to warrant a conviction if it satisfied the jury beyond a reasonable doubt. This rule has always been followed and has frequently been pronounced in Illinois. . . . This court has also said that where it appears that the witness has hopes of reward from the prosecution, his testimony should not be accepted unless it carries with it absolute conviction of its truth.”

As to this contention, the remarks made in People v. Durand, 321 Ill 526, 152 NE 569 (1926), are in point. There, the Supreme Court, after stating that the widest latitude of cross-examination of an accomplice ought to be permitted, and that the jury are entitled to know what inducements have been held out to the accomplice as a reward for his assistance to the prosecution and anything else that in any way affects his credibility, said (p 530):

“In this case the court unduly restricted the cross-examination of Miller and Patterson, and if the conviction rested upon the uncorroborated testimony of these accomplices this error would require a reversal of the judgment. Under the circumstances, however, we think the error was harmless. The testimony of the accomplices was fully corroborated by other facts and circumstances which point to the guilt of plaintiff in error. His explanation of the possession of this stolen property is not convincing and evidently the jury did not give it any credit.”

In the instant case, we think it can be reasonably argued that the court somewhat restricted the cross-examination of Randall, but the prolonged cross-examination in this area, together with the statement by Randall that the State’s Attorneys did not tell him what sentence they would recommend in return for his testimony against defendant, resulted in a fair interrogation of Randall “as to his motives, bias and interest, his relation to the crime and the persons connected with it, and any matters which tend to impeach his fairness or impartiality.” We also note that defendant’s conviction does not depend on the testimony of Randall. Defendant’s participation in the robbery was fully corroborated by two victims of the robbery. We find no reversible error here.

We consider next the refusal of the trial judge to give the following instruction tendered by the defendant:

The Court instructs the jury that when determining the evidentiary worth of the testimony of an accomplice, the jury must not judge that testimony as it would that of another type witness. The jury must look upon accomplice testimony with great suspicion, and act upon it with great caution, and unless the jury is satisfied from the accomplice testimony and all of the circumstances in evidence of the guilt of the defendant beyond all reasonable doubt, it is the sworn duty of the jury to return a verdict of not guilty.

The authorities cited in support of this contention include People v. Rongetti, 338 Ill 56, 170 NE 14 (1930), where the Supreme Court said (p 65) :

“The jury are not to pass upon the testimony of an accomplice as ‘they do upon any other witness,’ but they are to consider it as subject to grave suspicion and must act upon it with great caution, and only when they are satisfied from the testimony of such accomplice and all the circumstances in evidence that the guilt of the defendant is proven beyond a reasonable doubt will they be warranted in convicting a defendant on such testimony.” [Emphasis added.]

The State argues “the instruction tendered by defendant forbids the jury to convict on the weight of the accomplice’s testimony alone, but requires some other corroboration. Such is clearly not the law of Illinois which allows conviction upon the testimony of an accomplice even if not corroborated. People v. Rudnicki, 394 Ill 351 (1946).”

The record shows that in the conference held by the court with counsel, to settle the instructions, the State, in objecting to the instant instruction, objected to the following part of the last sentence “unless the jury is satisfied from the accomplice testimony and all of the circumstances in evidence of the guilt of the defendant beyond all reasonable doubt, it is the sworn duty of the jury to return a verdict of not guilty.” The court suggested that part of the sentence be taken out of the instruction, and as defendant’s counsel refused to do so, the court refused the instruction for that reason, and no substitute instruction was offered.

The instructions given to the jury did include an instruction on the credibility of witnesses, which instructed the jury that it might take into consideration “the opportunities of the several witnesses for knowing the things about which they testify, their age, discretion and experience; their bias or lack of bias; their interest, if any, in the result of the trial, the probability or improbability of the truth of their several statements; the relation which they bear to either side and the extent to which any witness is contradicted or corroborated by any other credible evidence, if at all, and any evidence that tends to shed light on his or her credibility.”

Although we think it was error to refuse the proffered instruction of defendant, we believe the jury was sufficiently instructed in this case. This is not a conviction which rests upon the uncorroborated testimony of the accomplice. The testimony of the two victims of the offense was sufficient to identify defendant beyond a reasonable doubt as being at the scene, behind the tavern bar, and with a gun.

In the instant case, defendant chose to explain his presence in the tavern at the time of the robbery, and statements made in People v. Lane, 29 Ill2d 326, 194 NE 2d 272 (1963) apply here. There, the court said (pp 329, 330, 331) :

“We have frequently stated that the uncorroborated testimony of an accomplice is attended by infirmities which require the utmost caution, yet we have also held that such testimony is sufficient to convict if it satisfies a court or jury, as the case may be, beyond a reasonable doubt. . . . Furthermore, the accomplice testimony of Woods was substantially corroborated by the defendant’s own testimony as to his acts on the night of the crime, by defendant’s conduct as observed by the victims of the robbery and the police, and by the defendant’s unexplained possession of the robbery weapons. Except for his denial of participation in the robbery, the defendant’s testimony as to his actions on the night of the crime is almost identical with the description of his conduct by Woods. He admitted driving Woods and Blevins to the scene of the robbery and driving with them shortly thereafter when the money taken from him was admittedly returned. . . . The defendant’s own testimony was implausible and contradictory. We have held that when a defendant elects to justify or explain his presence at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.”

Defendant’s testimony fairly shows that he went to the tavern with both Randall and Wallace. He admitted being in the tavern, seeing the struggle for Randall’s gun, and hearing shots fired, yet he proceeded to the car and drove away with Wallace. He testified that when they heard the shots, Wallace said, “ T better stop to see what it was.’ I told him, ‘Ain’t going to stop to see what was happening there.’ ” Defendant’s explanation as to his presence at the scene of the crime is most improbable and undoubtedly was so considered by the jury. In People v. Pelkola, 19 Ill2d 156, 166 NE2d 54 (1960), it is stated (p 162):

“Where the record contains sufficient competent evidence to establish the guilt of a defendant beyond reasonable doubt, the judgment will not be reversed for error in admitting evidence unless it can be seen that the error was prejudicial.”

We think that pronouncement applies here. This record contains sufficient competent evidence to establish the guilt of defendant Kelly beyond reasonable doubt, and the alleged errors by the trial court do not justify a reversal of the judgment of conviction.

For the reasons given, the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MORAN, J.

text:
    Helen Mick, Plaintiff-Appellee, and Jack Mick, Plaintiff, v. The Kroger Company, a Foreign Corporation, Defendant-Appellant.
    Gen. No. 65-65.
    Fifth District.
    July 12, 1966.
    Rehearing denied August 3, 1966.

      Hill & Hill, of Benton, for appellant.
    Benedict W. Eovaldi, of Benton, for appellee.
   MORAN, J.

This is an appeal from the Circuit Court of Franklin County, Illinois, from a jury verdict for one of two plaintiffs in a negligence action.

The original action, based upon the alleged negligence of the defendant-appellant, was brought by the appellee, Mrs. Helen Mick, to recover damages for personal injuries received by her while a customer and business invitee on defendant’s premises, and by her husband for moneys spent and for loss of services and consortium. The complaint set forth the “custom, usage, and habit with reference to the customers of the defendant’s store for many years, and a violation of its duty to exercise reasonable care for the safety of the plaintiff while upon its premises,” alleging that:

The plaintiff had traded for years at said place of business of defendant, during all of which time defendant, without being requested to do so, furnished one or more of its employees to help its customers, including plaintiff and her husband, Jack Mick, to carry their groceries and meats and other commodities from the store proper to defendant’s said parking lot immediately East of the store building, and to other places on East Main Street, in said City, where its customers had parked their cars,

and that the defendant was negligent in that it had “failed to assist plaintiff in carrying out of said store the groceries, meats and commodities which she had purchased therein.”

For several years, the appellee had shopped at the defendant’s self-service grocery store in Benton, Illinois. During that time, the store had provided a carry-out service for its customers. On September 3, 1963, after finishing her shopping, she pushed her cart into the check-out aisle. Her purchases were tabulated, the amount due collected, and the groceries placed in a large bag. The cashier then told her that she would have to manage by herself because there was no one else in the store and that he could not leave the cash register. She then said that she didn’t know if she could manage it, but that she would try.

Mrs. Mick then picked up the bag containing about thirty pounds of assorted groceries and carried it out to the sidewalk, when she discovered that her husband had left to pick up one of their children at a nearby high school. She rested the bag of groceries on the fender of a nearby car until she saw her husband drive into the lot. Mrs. Mick then picked up the bag again and stepped from the sidewalk to the parking lot pavement, whereupon she turned her ankle and began stumbling forward until the weight of the bag pulled her down. She suffered a broken foot and resulting permanent injuries.

The jury returned a verdict for Mrs. Mick in the sum of $4,000 and against her husband. The jury also answered a special interrogatory finding that Mrs. Mick was not guilty of contributory negligence at the time and place of the occurrence in question. Judgments were entered on the verdicts, from which only the defendant appeals. The trial court refused to strike all the allegations of negligence and overruled the defendant’s motions for a directed verdict, in arrest of judgment, for judgment notwithstanding the verdict, and for a new trial.

On appeal, the Kroger Company first contends that the plaintiff failed to offer sufficient evidence to allow a jury to find it guilty of any negligence which proximately or contributorily caused the plaintiff’s injuries and seeks a reversal.

Negligent conduct consists in the failure to exercise the care that a reasonable man of ordinary prudence would exercise in order to guard against any reasonably foreseeable, unreasonable risks of harm which flow or might flow from his conduct. The essential element of negligence is the exposure of another person to an unreasonable risk of harm. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill 95, 197 NE 578; Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836; Harper and James, The Law of Torts, § 16.9 (1956).

In fact, the very concept of due care contains within it the implication of due care under certain circumstances, one of which is the presence of a reasonably foreseeable, unreasonable risk of harm. Once it has been established that a duty to exercise due care exists, the question what constitutes due care under particular circumstances remains and must be determined by an analysis of all the facts. Thus, the determination of due care is essentially factual.

Generally, questions of due care, including the question of unreasonable risk, are for the jury to determine. Once a determination is made, a verdict will be set aside only if the verdict is against the manifest weight of the evidence or if reasonable minds would not differ as to the presence of due care under the circumstances. The mere fact that a jury could have reached a different conclusion or that a judge disagrees with the verdict does not suffice. Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847; Kahn v. James Burton Co., supra; Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804; Levanti v. Dorris, 343 Ill App 355, 99 NE2d 398; Wallace v. Radovick, 55 Ill App2d 264, 204 NE2d 835; These principles are well emphasized in Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE 2d 74, at 84:

Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our state and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vt. Ry. Co., 319 US 350.

In support of its first contention, the defendant alleges that the allegations of negligence in the complaint are “at most allegations of a deviation from a customary practice of this particular store . . .” and that “proof of a deviation from customary practice is not negligence and cannot in itself sustain a recovery.” However, a deviation from customary practice is sufficient to furnish an evidentiary basis for a finding of negligence by a jury whenever there is some evidence in the record from which a jury could infer that the deviation may have resulted in an unreasonable risk of harm to the plaintiff. Turner v. Chicago Housing Authority, 11 Ill App2d 160, 136 NE2d 543.

There was evidence that the bag of groceries which Mrs. Mick carried from the store was twelve inches in width and eighteen inches in height, that it was “big” and “heavy,” and that the top of the bag reached her chin when she carried it. Mrs. Mick testified that the bag “was too heavy for me to carry,” that she told the check-out boy that “I don’t know if I can manage it,” that she normally did not carry “heavy ones like that,” but that the store personnel carried them, and that she fell because “the bag weighted me down.” In addition, there was evidence that the store personnel would normally help customers when there were large packages similar in size to the one which Mrs. Mick carried from the store. Her testimony was corroborated by the store manager, who testified in part as follows:

In my seventeen years with Kroger, it would be common practice to offer to help carry out groceries if they had a bag of considerable size.

Limiting it to the Benton store, it is the practice if the bag is cumbersome enough that they need assistance, they are instructed to get some help. The normal practice was that they were instructed to do that without any request from the customer.

I would say a bag which contained four half-gallons of milk, five grapefruits and a large round steak weighing five or six pounds would be a large parcel. If I saw a woman with a bag that size I would have insisted on one of my employees helping her out of the store.

If one of my employees had gone out with a parcel like the one this plaintiff had here and there had not been a car there, he would either bring the groceries back into the store and put them in a cart or he would have went out with the cart and put the groceries in it, so that the customer would not have been loaded down with large parcels.

The evidence concerning custom, as the plaintiff’s brief so well indicates, is competent in that the customs of a business constitute a part of the circumstances which are to be taken into consideration by a jury in determining due care.

In a series of cases, our courts have held that evidence tending to show a general custom and usual manner of conducting a business is competent, and the degree of care required of the defendant should be determined in view of the general practice of those rightfully upon the premises.

In Yeates v. Illinois Cent. R. Co., 145 Ill App 11, the appellate court sustained a verdict for $22,500 in favor of the plaintiff, stating at

syl. 1 — Customs—how proof of may be made. The usual manner of conducting a business at the place of an accident established by rule or rules duly promulgated by persons in authority or growing out of the practice of employees long-continued, is competent to be shown as shedding light on the acts and conduct of the parties and has a bearing on the question of negligence.

On appeal, the Supreme Court affirmed, Yeates v. Illinois Cent. R. Co., 241 Ill 205, 89 NE 338, saying at 210:

The evidence was that there was a uniform custom on the part of the switch tender to hold out engines going north and not let them go upon the track until the road engine had come out; but it is insisted that the custom was not binding on the defendant because it was not the result of any rule promulgated by it, and when the switch crew saw the train on track No. 5 they were bound to anticipate a probable meeting with the road engine. It is the duty of a master conducting a business with different branches, to make, publish and enforce reasonable rules and regulations to promote the safety of servants (at 211) and no rule was ever made or published by the defendant governing the movement of trains at this switch. There was no rule of the defendant on the subject, but in considering the question whether the act of the switch tender was negligent and whether the switch crew ought to have anticipated meeting the road engine it was proper to consider the existence of the custom. (Cases cited.) The violation of a practically uniform custom tended to prove negligence on the part of the switch tender, by which the switch crew was misled and in consequence of which they encountered the danger which they had no reason to expect.

Harper and James, The Law of Torts, § 17.3 (1956) states that “custom is generally admissible as bearing on what is proper conduct under the circumstances. . . .” In addition,

Custom represents the judgment and experience and conduct of many and therein rests its probative force. . . . (One author states that) evidence of custom may have great bearing on the reasonable feasibility of a precaution. . . . Wigmore finds its probative value in its bearing directly on what is reasonable average conduct — it reflects the reaction of many to a similar situation and so has a tendency to show a composite judgment as to the risks of the situation and the precautions required to meet it.

The Kroger Company owed to Mrs. Mick, an invitee on its premises, the duty to exercise reasonable care under the circumstances. Pauckner v. Wakem, 231 Ill 276, 83 NE 202; Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 173 NE2d 443. From the evidence taken as a whole, a jury could and did find that the failure to provide a carry-out service for Mrs. Mick constituted an unreasonable risk of harm and a breach of its duty to exercise reasonable care for her protection as a customer. In this day and age, shoppers generally frequent the modern, self-service supermarkets, where they are furnished with a large cart which they wheel through the store and in which they place large amounts of groceries. It is not unreasonable for a jury to find that, under some circumstances, it would be the duty of a store to furnish assistance to its customers in carrying out their groceries, especially where it has been the custom and practice to do so. Indeed, courtesy, politeness, and proper consideration for a customer’s needs are inducements for a customer’s trading in a particular store.

This is not to say that the Kroger Company should insure the safety of its customers, Olinger v. Great Atlantic & Pacific Tea Co., supra, but only that, from all the evidence presented in this case, a jury could find that there was an unreasonable risk of harm and a failure to provide reasonable protection against the harm. A jury also could and did find that the negligence of the Kroger Company was the proximate cause of Mrs. Mick’s injuries. All of these questions are essentially factual and within the proper scope of a jury. Their findings should be disregarded only if “the verdict of the jury is manifestly and palpably against the weight of the evidence. . . .” Wallace v. Radovick, supra. Here, sufficient evidence was presented.

The appellant also contends that there was no proof of freedom from contributory negligence and that, therefore, Mrs. Mick was guilty of contributory negligence as a matter of law. However, as emphasized in Simaitis v. Thrash, 25 Ill App2d 340, 166 NE2d 306, at 350:

The question of contributory negligence ordinarily and preeminently presents a question of fact. It can become a question of law only when from the undisputed facts, all reasonable minds, in the exercise of fair and honest judgment, would be compelled to reach the conclusion that there was contributory negligence. Lasko v. Meier, 394 Ill 71, 67 NE2d 162.

The facts in this case are not so clear that all reasonable minds would be compelled to reach the conclusion that there was contributory negligence. There was evidence which made the question of contributory negligence one for a jury determination. One of the factors which the jury considered was the availability of a cart for Mrs. Mick’s use. However, as indicated clearly by the special interrogatory, the jury found that, even though she did not make use of an available cart, she was not guilty of contributory negligence. And, from what has been said earlier, a jury determination should not be set aside unless it is palpably erroneous. Wallace v. Eadovick, supra.

The defendant also contends that evidence concerning its offer to pay the plaintiff’s hospital bills should not have been admitted. A similar contention was overruled in Hanlon v. Lindberg, 319 Ill App 1, 48 NE2d 735, wherein the court held at 7:

Where the parties are strangers under the law, and the one charged with being the wrongdoer promises to pay or does pay for hospital and medical care, it is a proper circumstance for the consideration of the jury. Sullivan v. Heyer, 300 Ill App 599, 601, 21 NE2d 776.

This case still represents the law in Illinois. Then too, the defendant fails to point out that this testimony was elicited, first, in an extended cross-examination of Mr. Mick by the defendant, and, second, in answer to specific questions by the defendant’s counsel, asked twice, both as to the offer of payment and as to the signing of a release. The following questions and answers constitute a part of this cross-examination:

Q. Were you at home, Mr. Mick, on the day the representative of Kroger Company talked to your wife about the doctor bills and about signing a release?

A. He was there one time when I was home, but I was busy working outside, I never, I wasn’t there when—

Q. Isn’t it a fact, Mr. Mick, the Kroger Company offered to pay this Doctor’s bill, but you and your wife would not sign a release for payment of that, payment against the Kroger Company ?

A. That is right, we wouldn’t sign no release.

The defendant also contends that the court erred in giving the plaintiff’s Instruction No. 6 (IPI 21.01) and in refusing the defendant’s Instructions Nos. 3 and 4. As indicated by the plaintiff’s brief, it was only after the defendant insisted upon its Instruction No. 5 (IPI 21.02) that it became necessary for the plaintiff’s Instruction No. 6 to be given; for it is suggested in IPI that 21.01 be given whenever 21.02 is given. In fact, plaintiff offered to withdraw plaintiff’s Instruction No. 6 if defendant would withdraw defendant’s Instruction No. 5. Defendant’s Instructions Nos. 3 and 4 were properly refused because they were argumentative and did not apply to the facts in this case. In addition, they were non-IPI Instructions, the subject matter of which was amply covered by IPI Instructions Nos. 120.05, 120.06 and 120.07.

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

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Edward Nordstrom, Defendant-Appellant.
    Gen. No. 65-88.
    Second District.
    July 13, 1966.
    Rehearing denied August 31, 1966.

      James B. Sloan, of Chicago, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan (Jack Hoogasian, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Albert Edward Nordstrom, was convicted on July 29, 1964, for misbranding drugs, in that he knowingly and unlawfully sold a dangerous drug at retail without a prescription, contrary to the provisions of sections 17 and 29 of the Uniform Drug, Device and Cosmetic Act. (Ill Rev Stats 1963, c 111½, pars 417 and 429.) The offense was a second offense, yet the defendant was placed on probation on August 12, 1964. On April 30, 1965, his probation was revoked; he was sentenced to the penitentiary for a term of not less than one year and six months and not more than two years; and he filed notice of appeal on April 30, 1965, to review both the original judgment of guilty and the order revoking probation.

The State contends that the defendant has lost the right to review his original judgment by failure to file a notice of appeal therefrom within thirty days after August 12, 1964 — the date the probation was granted. This threshold question will be first considered.

The pertinent sections of the Criminal Code provide:

“The judgment of guilty entered prior to the admission of defendant to probation shall be a final judgment subject to review under Article 121 of this Code.”
“If the defendant is admitted to probation a judgment of guilty shall be entered.”

Sections 117-1 (d) and 118-1 (d) of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1963, c 38, pars 117-1 (d) and 118-1 (d)).

The procedures for review under article 121 of the Code were in part superseded and replaced by Supreme Court Rule 27 (Ill Rev Stats 1963, c 110, par 101.27) which became effective in its final form on January 1, 1964. Supreme Court Rule 27 (7) (a) provides:

“Appeals from the trial court shall be perfected within 30 days from the entry of the order or judgment from which the appeal is taken, provided that if the appellant applies for probation or files a motion for a new trial or in arrest of judgment, the appeal shall he perfected within 30 days after the ruling of the court on the petition for probation or the denial of the motion. Except as provided in the next paragraph, no appeal may be taken from a trial court to a reviewing court after the expiration of 30 days from the entry of the order or judgment from which the appeal is taken.” (Emphasis ours.)

Subparagraph (b) of Rule 27 (7) provides for an appeal after the expiration of 30 days and within 14 months from the entry of the judgment or order appealed from, upon the filing of a petition within one year from the entry of such order of judgment, which petition must show a meritorious claim and the absence of culpable negligence in the failure to prosecute the appeal within 30 days. No such petition was filed and it is not claimed that defendant is before this court under the provisions of this subparagraph.

There has long been confusion as to whether and when an appeal will lie if probation is granted. Prior to the adoption of the present Criminal Code, it was thought that the granting or denying of probation to an accused rested solely in the discretion of the trial court (The People v. Stover, 317 Ill 191, 196, 197, 148 NE 67 (1925)); that upon the entry of an order for probation, the cause stood continued in the trial court during the probationary period and a reviewing court was without jurisdiction to hear any phase of the matter (The People v. Mayfield, 414 Ill 146, 148, Ill NE2d 164 (1953)); and that the defendant had waived his right to appeal a conviction if he accepted probation (Committee Comments, SHA ch 38, § 117-1). Such views were finally put to rest in 1965 by the decision in The People v. Sims, 32 Ill2d 591, 593, 208 NE2d 569 (1965). Presently an appeal will lie from the original judgment of conviction after probation is granted, and from an order revoking probation, if perfected according to the provisions of applicable statutes and court rules. The issues are separate and independent. An accused should not be coerced into waiving an appeal by accepting probation.

As to when the time for an appeal starts to run, there likewise has been uncertainty. In the absence of a statute providing otherwise, an appeal will lie only from a final judgment. The Village of Niles v. Szczesny, 13 Ill2d 45, 48, 147 NE2d 371 (1958); Eva Peach, etc. v. Lester Peach, et al., 73 Ill App2d 72, 218 NE2d 504 (2nd Dist 1966); 24 CJS, Criminal Law, § 1643, page 240. In criminal cases, the sentence, in the legal sense, is usually treated as synonymous with final judgment. The People v. Becker, 414 Ill 291, 295, Ill NE2d 491 (1953). In Illinois, it has been the practice, both prior to the adoption of the Code (The People v. Collins, 353 Ill 468, 471, 187 NE 450 (1933); The People v. Andrae, 295 Ill 445, 454, 129 NE 178 (1920)) and under the Code (Ill Rev Stats 1965, c 38, § 118-1 (d)), to grant probation before sentence is imposed. If the defendant is admitted to probation, sentence is not then imposed.

This has led to the contention that if probation is granted there is no final judgment from which an appeal will lie and, hence, the period for appealing a conviction cannot start to run until sentence is imposed. In Toyosaburo Korematsu v. United States, 319 US 432 (1943), the Supreme Court considered the question. Previously in Berman v. United States, 302 US 211 (1937) it had decided that an appeal would lie where sentence had been imposed but was suspended, and the defendant placed on probation. There was language in Berman, however, which indicated that the court accepted the proposition that in a criminal case the sentence was the final judgment, and thus by implication, the opinion suggested that an appeal would not lie if probation were granted prior to the imposition of a sentence.

In Korematsu, probation was granted prior to the imposition of sentence; and the court held that the judgment of guilt was equally final when the imposition of the sentence itself was suspended and the defendant placed on probation. The court noted that the probationary surveillance is the same whether or not sentence is imposed; that in either case the granting of probation follows a finding of guilt and is an authorized mode of mild and ambulatory punishment intended as a reforming discipline; that whether or not sentence is imposed in the granting of probation, the liberty of one “judicially determined to have committed an offense” is abridged in the public interest; and that probation is intended to be a means to restore offenders who are good social risks to society and to afford the unfortunate another opportunity by clemency. The court concluded on page 435, quoting in part from its prior decision in Berman, as follows:

“ Tn criminal cases, as well as civil, the judgment is final for the purpose of appeal “when it terminates the litigation ... on the merits” and “leaves nothing to be done but to enforce by execution what has been determined.” ’ . . . Here litigation ‘on the merits’ of the charge against the defendant has not only ended in a determination of guilt, but it has been followed by the institution of the disciplinary measures which the court has determined to be necessary for the protection of the public.”

For a judgment to be final and appealable, it must terminate the litigation between the parties on the merits of the cause. It need not dispose of all the issues presented by the pleadings, but it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or some definite part thereof. The Village of Niles v. Szczesny, 13 Ill2d 45, 48, 147 NE2d 371 (1958); Eva Peach, etc. v. Lester Peach, et al., 73 Ill App2d 72, 218 NE2d 504 (2nd Dist 1966). Certainly the judgment of guilty terminates the cause on the merits, and it is a final adjudication that the "offense charged in the indictment was, in fact, committed by the defendant. If an accused is found guilty or enters a plea of guilty and is granted probation, the execution of the judgment is the continuance of the probation. We hold that the judgment of guilty is a final judgment and the time within which to perfect an appeal therefrom is not extended to such time as when the probation may be revoked.

It is assumed in the Committee Comments to § 117-1 (SHA ch 38, § 117-1) that subsection (d) provides for an appeal from an interlocutory order, since final judgment is not rendered until sentence. We agree that subsection (d) provides for an appeal from a judgment of guilty, but believe that the language of said subsection clearly provides for an appeal from such judgment as a final judgment or order and not as an appeal from an interlocutory order of guilty when probation is granted. The language is, “The judgment of guilty . . . shall be a final judgment . . . (Emphasis ours.)

If there was doubt as to when the 30-day period within which to appeal from the original judgment of guilty begins to run, Supreme Court Rule 27(7) (a)— adopted subsequent to the Code of Criminal Procedure of 1963 — is now explicit. It provides that an appeal “shall” be taken within 30 days from the entry of judgment. It then adds a provision that if appellant applies for probation, the appeal “shall” be perfected within 30 days from the “ruling” on the petition for probation. The language is mandatory and provides for an appeal upon the “ruling” on the petition — not merely upon the denial of the petition. Thus, an accused must perfect an appeal from the judgment of guilty within 30 days from the entry thereof unless the accused applies for probation, and if such application is made, he must then perfect an appeal from the judgment of guilty, as well as from the order granting or denying probation, within 30 days from the date of the order which rules on the petition for probation.

In the same sentence, the Rule provides for an appeal from a motion for a new trial or in arrest of judgment only upon the “denial” of the motion. We would not be warranted in assuming that the Supreme Court meant to limit the time for appeal only if the petition for probation were denied and employed the word, “ruling” inadvisedly or unintentionally. In the case at bar, we hold that the defendant did not file notice of appeal in apt time to review his original judgment of guilt and that we cannot now review such judgment.

The defendant has also appealed from the order revoking his probation and the terms of imprisonment as permitted by section 117-3 (e) of the Code and Supreme Court Rule 27(16). He contends that certain evidence, seized at the time of his arrest and when on probation, was improperly seized and should not have been admitted into evidence at the revocation hearing.

At the hearing on the motion to suppress, there was testimony that Inspector Ware went to the defendant’s drugstore on February 9, 1965, and purchased some dangerous drugs without a prescription; that he paid $40 for these drugs with marked bills; that he returned on the following day with other officers; that the other officers waited outside while Ware entered the store and purchased additional dangerous drugs without a prescription, for which he paid $275; that the drugstore was on the second floor of a building; that as Ware was leaving the drugstore he gave a signal at the door; and that other officers approached and arrested the defendant at the doorway.

The officers then searched the surrounding area of the premises, recovered the $275, a portion of the $40 paid to the defendant the previous day, a quantity of drugs, and certain receipts and papers. The drugs confiscated bore labels stating that federal law prohibited their being dispensed without a prescription. The defendant’s license to be in possession of such drugs had previously been revoked. A state pharmaceutical inspector was present directing which drugs to confiscate. The money seized in defendant’s store was introduced in evidence.

The defendant does not contend that his arrest was unlawful. An officer making a lawful arrest has the right to search the person arrested. In a proper case, the right to search extends beyond the person and to the surrounding area. The permitted scope of such a search is that which is reasonably necessary to protect the officers from attack, to prevent escape, or to discover the fruits of the crime or the means by which it was committed. The People v. Alexander, 21 Ill2d 347, 352, 172 NE2d 785 (1961); The People v. Burnett, 20 Ill 2d 624, 625, 626, 170 NE2d 546 (1960); The People v. Van Scoyk, 20 Ill2d 232, 235, 170 NE2d 151 (1960); The People v. Heidman, 11 Ill2d 501, 508, 144 NE2d 580 (1957); The People v. Tillman, 1 Ill2d 525, 529, 116 NE2d 344 (1954).

The multitude of cases involving the question of the reasonableness of searches made incidental to a lawful arrest, do not lay down a uniform rule as to the scope permitted. Bather, the cases established that the critical issue in each case is whether the nature of the offense and surrounding circumstances warranted the search made. The People v. Watkins, 19 Ill 2d 11, 18, 166 NE2d 433 (1960). Subsequent to his lawful arrest, the defendant refused to disclose the whereabouts of the fruits of the crime — the money. Under such circumstances, we believe that the officers were justified in searching the immediate area — behind the counter and in the cash register on the premises — to recover the money. Such a search was well within the limits of the right to search after a lawful arrest. The People v. Van Scoyk, supra, 235, 236.

The defendant also contends that the manner in which the hearing on the revocation of probation and the motion to suppress evidence were conducted, when considered in their entirety, constituted a denial of due process. We disagree! On the motion to suppress, the State called its witness first. The defendant now contends that this was error. Aside from the important fact that no objection was voiced to this procedure, the trial court apparently treated the motion to suppress the evidence in the same manner as a motion to suppress a confession. (Ill Rev Stats 1965, c 38, § 114-11 (d).) By directing the State to proceed first, the trial court obviously assumed — though erroneously — that the State had the burden of establishing that the evidence was lawfully seized. While this assumption as to the burden of proof was incorrect (Ill Rev Stats 1965, c 38, § 114-12(b)), it can hardly be said to have prejudiced the defendant.

The defendant also now contends that the incorporation of the testimony taken on the motion to suppress the evidence into the hearing on the revocation of probation was a denial of due process. However, the defendant made no objection and stated that since there was no jury it would shorten the proceedings and only requested that he be given leeway in cross-examination of these same witnesses. It also appears that either the transcript of the previous testimony was read to defendant’s counsel to assist him in his cross-examination, or he denied the need therefor. Defendant agreed to this manner of presenting the evidence and cannot now complain. The People v. La Bostrie, 14 Ill2d 617, 619, 153 NE2d 570 (1958).

The defendant complains of the failure of the State to call as a witness or to identify at the hearing, the informant who accompanied the agent on February 9, 1965 — when he made the first purchase. Defendant cites Thompson v. The People, 410 Ill 256, 102 NE2d 315 (1951) for the proposition that the failure of the State to call a competent witness with material testimony is a denial of due process. In Thompson, however, the defendant sought to subpoena two individuals, and delivered subpoenas to the sheriff for that purpose. The sheriff then had conversations with the two subpoenaed individuals, but did not serve the subpoenas. He and the State’s Attorney also threatened the witnesses and indicated that they should get out of town until after the trial.

In United States v. Ragen, 86 F Supp 382, ND Ill (1949), also cited by the defendant, a negro allegedly had raped a white woman. A doctor, who had examined the supposed victim, positively concluded from his examination that the victim had not been raped. The doctor further stated that he knew the supposed victim and believed her to be mentally irresponsible. His report was submitted to the police, and the prosecuting attorney was aware of it. The prosecuting attorney did not call the doctor as a witness. The defendant in the case could neither read nor write and had been in no prior difficulty with the police. The prosecuting attorney warned the defendant of prompt action by the Klan if he took the stand; stated that he was a member of the Klan and threatened reprisal if the defendant posted bond. Defendant’s attorney was apparently likewise threatened and refused to bring in twelve persons who were able to testify that the defendant was far from the scene of the alleged crime. The Thompson and Ragen cases are not persuasive authority for the argument of defendant that the failure of the State to call the informant as a witness or to identify him at the hearing, was a denial of due process.

The defendant further argues that he was denied due process in that the State amended its petition to revoke the probation at the beginning of the hearing, and that he was thus denied notice and an opportunity to prepare his defense. While we do not condone the action of the State in being dilatory in presenting its amendment to the petition, we note that the amendment only changed the name of the dangerous drugs purportedly purchased on February 9 and 10. Such amendment conformed the allegations of the petition to the testimony of the State’s witnesses on the hearing to suppress the evidence which was held about a month earlier.

The amendment could not have taken the defendant by surprise. His only objection to the amendment was that if he had known of it earlier he would have obtained a transcript of the testimony of one of the State’s witnesses. The court then asked counsel for the defendant how long he wanted for this purpose, and counsel suggested that they proceed with the hearing at that time and that the transcript be made available later so that he could advise the court of any discrepancy in the testimony as to the drugs purchased. Thus, the court was willing to give defendant any additional time necessary to prepare his defense, but counsel finally concluded that he didn’t need it.

The defendant contends that the manner of conducting the cross-examination of the defendant and the admission of certain evidence was error, and a denial of due process. We have examined the entire record, which included the proceedings at the original trial and in connection with the petition to revoke probation. We find that there was compelling and substantial evidence to warrant the action of the trial judge in revoking the probation; and that the proceedings were not conducted in such a manner as to indicate a lack of concern for defendant or to violate any of defendant’s basic rights, including due process.

The defendant also charges that his representation by counsel was so inadequate as to be a denial of due process. It is undisputed that the conduct of counsel in a criminal case may be such as to deny the defendant the fair trial contemplated by the due process clauses of both the State and Federal Constitutions. The People v. De Simone, 9 Ill2d 522, 524, 138 NE2d 556 (1956). However, our courts have repeatedly held that where the defendant is represented by counsel of his own choice, the judgment of conviction will not be reversed merely because his counsel failed to exercise the greatest of skill or for the reason that it might appear in looking back over the trial that he made some tactical blunder. In order to vitiate the trial, the whole of the representation must be of such low caliber as to amount to no representation and reduce the trial to a farce. The People v. Stephens, 6 Ill2d 257, 259, 260, 128 NE2d 731 (1955); The People v. Morris, 3 Ill2d 437, 443, 448, 121 NE2d 810 (1954). Defendant here was represented by counsel of his own choice and the record indicated that counsel creditably conducted the defense against insurmountable factual odds.

The defendant also argues that the imposition by the court of an imprisonment term of from not less than one year and six months to not more than two years, upon the revocation of the probation, was excessive. The sentence was within the maximum penalty for the offense of which the defendant had been convicted. (Ill Rev Stats 1963, c 38, § 117-3 (d); and c 111%, par 441.) We recognize that this court may reduce the punishment imposed by the trial court if the circumstances warrant such reduction. Ill Rev Stats 1965, c 38, § 121-9 (b)(4).

The power to reduce a sentence is one that is to be exercised with caution. The imposition of sentence is peculiarly within the discretion of the trial court. This discretion should not be interfered with unless clearly abused. People v. Stevens, 68 Ill App2d 265, 273, 215 NE2d 147 (2nd Dist 1966); People v. Burks, 68 Ill App 2d 275, 215 NE2d 144 (2nd Dist 1966); People v. Brown, 60 Ill App2d 447, 450, 208 NE2d 629 (1st Dist 1965); People v. Hobbs, 56 Ill App2d 93, 98, 99, 205 NE2d 503 (1st Dist 1965).

Prior to imposing sentence, the trial court stated, among other things, that it appeared from the evidence that the defendant had made a mockery of its probation order; and that the defendant’s testimony at the revocation hearing was fantastic and beyond belief. Under the circumstances of this case, we find no abuse of discretion in imposing sentence, and, accordingly, the judgment must be affirmed.

Judgment affirmed.

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