author: HR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Peter Najera (Impleaded), Defendant-Appellant.
    Gen. No. 50,047.
    First District, Third Division.
    September 22, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Burnham, Assistant State’s Attorneys, of counsel), for appellee.
   HR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a non jury trial defendant was found guilty of robbery and sentenced to one to five years in prison. On appeal he raises two points: (1) that the story of the complaining witness is incredible, thus raising a reasonable doubt as to the defendant’s guilt, and (2) that the trial court should have examined the State’s file to determine whether it contained impeaching statements alleged to have been given by the complainant to the police.

At approximately 4:00 a. m. on August 11, 1963, Peter Najera and his uncle, Raul Rodriguez, entered a restaurant at 92nd Street and Commercial Avenue in Chicago. They had been drinking and, according to their testimony, had decided to have a bowl of chili before going home and had gone to the restaurant for that purpose. The complaining witness, James Gountanis, an employee in the restaurant, testified that there were from three to five people in the restaurant. The defense estimated there were between fifteen and twenty. After Najera and his uncle had been served, Gountanis presented them with a bill for $1.04 (two bowls of chili, one cup of coffee and four cents sales tax). Najera gave him a $1 bill, which Gountanis took to the cash register at the end of the counter and rang up. According to Gountanis, Najera at that time approached him and asked, “Do I owe you anything else ?” to which Gountanis replied, “Four cents. If you haven’t got it, it is all right.” Najera then offered Gountanis a quarter with his left hand, drew out a pistol with his right hand and said, “Open it up [meaning the cash register] and give me all the money.” Gountanis told Najera there was no money in the register, and Najera replied, “Give me my dollar.” The complaining witness handed over the $1 which Najera took and ran from the restaurant. After hesitating a few seconds, Gountanis went to the door and saw Najera enter a white car and drive away. Ten or fifteen minutes after the incident, a police officer entered the restaurant for a cup of coffee and Gountanis told him of the robbery. The officer, whose identity was not established, asked Gountanis if he wished to file a complaint. The officer then took down the description of the defendant and his uncle and left. Up to that time Gountanis had informed a waitress in the restaurant of the holdup, but had done nothing to arouse or inform the patrons.

The police found and arrested Najera and Rodriguez at about 5:25 a. m. the same morning. At the scene of the arrest the officers found a revolver which was subsequently identified as the one used by Najera at the restaurant. Gountanis was brought to the station at about 7:25 a. m. and there identified Najera and Rodriguez.

According to Najera, he gave Gountanis a $2 bill and there was an argument over the change, Najera contending that Gountanis was trying to charge him for food ordered by several other customers; that he walked out without his change and met his uncle Raul and a longtime friend, one Candido Mendoza, and that the three of them proceeded to a tavern next door to the restaurant where they resumed drinking. He consistently denied threatening Gountanis and denied possession of a revolver. Rodriguez corroborated defendant’s story and testified that he did not see Najera pull out a pistol.

Mendoza, a friend of the defendant’s for ten years or so, testified that he was in the restaurant when the argument took place and that there were quite a few people in the restaurant (at least a dozen). Mendoza said he observed the argument but did not see defendant draw a pistol. On cross-examination Mendoza said, “Well, he was waving his hand, bring up his hands. I didn’t see nothing in his hands.” After the argument, Najera walked out of the restaurant and Mendoza walked out right behind him. Outside they met Rodriguez, adjourned to a tavern next door and drank some beer. Mendoza further testified that after drinking in the Central Tavern for about half an hour, they left together and he took a bus home.

Ned Tarver, a Chicago police officer, testified that he arrested the defendant and his uncle in the vicinity of 92nd Street and Burley Avenue and that at that place he found the revolver which was later identified by Gountanis as the weapon used in the alleged robbery.

There is nothing contradictory or conflicting in the testimony of Gountanis and the arresting officer. On the contrary, the finding of the gun corroborates Gountanis’ testimony on that important aspect of the case. Nor are the events described by the complaining witness inconsistent with human experience when we consider that they occurred at 4:00 a. m. after a night spent by defendant in drinking. The fact that the robbery yielded only one dollar, while lending a bizarre atmosphere to the case, does not reflect unfavorably upon the credibility of the complaining witness. Indeed, if Gountanis had decided to concoct a story of robbery, he would not have made the proceeds $1. While defendant’s behavior may have the aspect of drunken recklessness, the possibility of tragedy under such circumstances is too grave to be overlooked.

The credibility of witnesses is solely a question for the trial court and will not lightly be disturbed. People v. White, 63 Ill App2d 105, 112, 211 NE2d 9; People v. Palumbo, 5 Ill2d 409, 125 NE2d 518; People v. Griffin, 48 Ill App2d 148, 198 NE2d 115. When conflicting evidence is presented, it is within the province of the trier of fact to decide which story is to be believed and whether the evidence offered by the State is credible, unconflicting and not inconsistent with human experience. A court of review will not substitute its judgment for that of the trial court. People v. Tensley, 3 Ill2d 615, 122 NE2d 155; People v. Kirilenko, 1 Ill2d 90, 115 NE2d 297. The evidence was adequate to support the finding of guilty beyond a reasonable doubt.

The second point raised by defendant is that the trial court erred by not conducting an investigation of the State’s file in order to determine whether a statement by Gountanis existed and whether such statement was in the possession of the State’s Attorney. The prosecution is required to furnish on demand to defendant for impeachment purposes specific statements in its possession made by a State’s witness which have been established to exist and which are in the witness’ own words or substantially verbatim. People v. Neiman, 30 Ill2d 393, 397, 197 NE2d 8; People v. Wright, 30 Ill2d 519, 198 NE2d 316; People v. Moses, 11 Ill2d 84, 142 NE2d 1. In the instant case, defense counsel contended that Gountanis had made a statement to one of the police officers, and counsel asked the Assistant State’s Attorney to tender the alleged document. The State denied knowledge of any such statement and offered its file to the defense. The prosecutor even recalled Gountanis to the stand in an attempt to determine whether the witness had signed a statement or whether he was mistakenly referring to the complaint. The court thought the witness might have been confused and that what was referred to as a “statement” was the complaint. Counsel for defendant did not pursue the point by requesting the court to examine the State’s file.

Defendant relies on People v. Wright, 30 I112d 519, 198 NE2d 316, for the proposition that the trial court should have inspected the State’s file on its own motion, and defendant urges us to remand the cause so that a search for the alleged documents may be conducted. In the Wright case it was undisputed that a statement signed by a witness did at one time exist and was at one time in the possession of the State. The court, in a very limited ruling, ordered the cause remanded strictly for the purpose of searching for the missing document.

The holding of the Wright case is further discussed in People v. Marshall, 74 Ill App2d 472, in which this court decided that the trial court was not required to determine the whereabouts of certain longhand notes made by a police officer pursuant to an interview with a witness for the prosecution. The notes in question were transcribed for the police file and at the time of the trial it was not known where the original notes were. The typed document was tendered to the defense, but defense counsel insisted that the trial court was obliged to conduct a search for the longhand notes. We dismissed that contention, holding that, absent a request from defense counsel, the trial court was not required to examine the State’s file nor was the trial court obliged to compel the police to produce the statement or explain its absence.

In the instant case the State denied knowledge of any statement, offered its file to defendant and extended its examination of the complaining witness in order to find out whether a statement existed. There is no indication in the record that the witness or the prosecution had access to any statement or that defendant’s right to cross-examine was impaired.

Judgment affirmed.

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


source: Caselaw Access Project

author: CRAVEN, J.

license: Public Domain

text:
    Doris Sidwell, Plaintiff-Appellant, v. Roy Sidwell, Defendant-Appellee. Doris Sidwell, Petitioner-Appellant, v. Roy Sidwell, Respondent-Appellee.
    Gen. Nos. 10,668, 10,685. (Consolidated for Opinion Only.)
    Fourth District.
    September 26, 1966.

      Ryan & Heller, of Mattoon (Harlan Heller and John W. Huffman, of counsel), for appellant.
    Massey, Anderson, Gibson & Rearman, of Paris, for appellee.
   CRAVEN, J.

These two appeals were consolidated for opinion by order of this court. Both cases are by the same parties, Roy Sidwell and Doris Sidwell, who are husband and wife. The first appeal, No. 10,668, involves a divorce action brought by Doris Sidwell in Cumberland County, the county of her residence. The second appeal, No. 10,685, concerns a separate maintenance action subsequently brought by Doris Sidwell in Clark County, Roy Sid-well’s then county of residence.

The Cumberland County proceeding is an appeal by the plaintiff and a cross-appeal by the defendant from a decree entered by the circuit court denying relief to either party in the divorce action. The plaintiff, Doris Sidwell, first brought suit for divorce alleging extreme and repeated cruelty and adultery. The defendant, Roy Sidwell, counterclaimed for divorce alleging adultery. Thereafter the plaintiff attempted to amend her complaint by adding a count for separate maintenance. The court denied the plaintiff’s motion to amend. Both parties now ask that the court’s decree denying relief be reversed and that the court remand with directions to enter a decree of divorce in their favor.

Subsequent to the entry of the above decree, the plaintiff, Doris Sidwell, filed an action for separate maintenance in Clark County. The circuit court of Clark County granted the defendant’s motion to dismiss under section 48(1) (c) of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 48(1) (c)) because another action “between the same parties for the same cause” was on appeal. The plaintiff appeals this order.

The evidence in the Cumberland County divorce action constituted twenty-two witnesses’ testimony concerning the conflicting allegations of the two parties. After the hearing was concluded, the trial court, in a letter to opposing counsel, informed them:

“I have carefully considered the above matter which was completed last week and I cannot escape the conclusion that the plaintiff presented a preponderance of the evidence and it was sufficient to award her a divorce on the grounds of adultery. I will, therefore, enter a decree to this effect.”

Thereafter the defendant filed a motion for rehearing alleging newly discovered evidence. The motion was granted. At the second hearing the defendant produced the following evidence:

1. An anonymous letter written to Larry Sidwell, the son of the parties, suggesting that one of the witnesses could have amnesia or take an out-of-State vacation in payment of a fee of $400.
2. A statement given by the plaintiff’s witness, Edgar Markwell, to the State’s Attorney of Cumberland County on October 9, 1964, admitting authorship of the above letter.
3. The testimony of Mark Hunt concerning his conversation with Edgar Markwell on the same date wherein Markwell confirmed that he had lied under oath.
4. A written statement of Edgar Markwell on the same date wherein he admitted his testimony was false.
5. A statement made by plaintiff’s witness, Christine Chapman, on October 17, 1964, stating that she based her identification of Roy Sidwell entering the apartment of Ernestine Perry upon “town gossip.”
6. A criminal charge of solicitation to commit subornation of perjury to which Edgar Markwell pleaded guilty on October 13,1964.

After the hearing the court, in a letter dated November 16,1964, notified opposing counsel that:

“I have carefully considered the additional evidence presented by the defendant in the above entitled cause and after such consideration, it is my opinion that the testimony of the witness Markwell can be substantially ignored as a factor in the plaintiff’s case. Without this evidence, I do not feel that there is sufficient evidence to support the plaintiff’s contention, and I will therefore enter an order denying the petition for divorce, . . . .”

The issue presented is whether the testimony of the witness Markwell was properly impeached. The plaintiff alleges that no foundation was laid to impeach Markwell’s testimony and, therefore, the record, as presented at the original hearing, is controlling. The defendant argues that interest, bias or influence affecting a material witness’ testimony may always be shown. (Citing Ill Rev Stats 1965, c 51, § 1.) We agree with this proposition. However the question is not what may be shown but how it is properly established. Here it is not the end but rather the means to that end that is in issue.

The defendant attempted to impeach the plaintiff’s witness Markwell in two respects:

1. That he made subsequent inconsistent statements.
2. That he had a propensity to commit perjury.

This was attempted to be done through extrajudicial statements which purported to convey the truth of the matter contained in the statement itself. This is the classic definition of “hearsay.” 5 Wigmore, Evidence, § 1361 (2nd ed 1923). To be admissible as independent evidence the statement must qualify as an exception. To be admissible for impeachment purposes a proper foundation must be laid through the witness while under oath. People v. Perri, 381 Ill 244, 44 NE2d 857. These principles are outlined in the following rules (Card, Elinois Evidence Manual) :

484 (p 614) — “If the witness is a party to the action so that his statements are admissible against him as admissions, it is not necessary to lay a foundation on cross-examination by giving him an opportunity to admit, explain, or deny having made a former inconsistent statement. As to any other witness, such foundation is necessary before evidence of the inconsistent statement will be admissible,”
485 (p 615) — “Where the former statement contradicting the testimony is in writing it must first be produced and shown to the witness so that he may admit or deny having made or signed it, before it is admissible in evidence to impeach him.”

We cannot accept the defendant’s claim that the statements of the witness are admissions and could thus be received in evidence as an exception to the “hearsay rule.” An “admission” has been defined as words or acts of a party-opponent offered in evidence against him. McNealy v. Illinois Cent. R. Co., 43 Ill App2d 460, 193 NE 2d 879. As such, they are received as original or substantive evidence. Woodruff v. Pennsylvania R. Co., 52 Ill App2d 341, 202 NE2d 113. The additional evidence received, relating to the testimony of the witness Markwell, was not an admission by a party to this proceeding nor by anyone authorized to speak for a party and, properly, could not have been received in evidence as an admission.

We next turn our inquiry to the area of declarations against interest. We understand it to be the general rule that a declaration against the interest of the person making it is admissible, notwithstanding its hearsay character, if the declaration is relevant and the declarant has died or, for some other reason, is not available as a witness. 20 Am Jur, Evidence, § 556, at 467. Clearly, the evidence received, classified as newly discovered evidence, failed of qualification either as an admission or declarations against interest. It was pure hearsay and not falling within recognized exceptions, and could provide no substantial basis upon which to determine the respective rights of the parties to the controversy.

The record clearly establishes that the trial court considered this evidence in reaching his conclusions as to the final decree. We are aware that there is a presumption that the trial court would consider only the competent evidence. The record here, howrever, negatives the presumption by the affirmative recitation that the subsequently received incompetent evidence was the basis for a determination of a close and controverted question. In view of this state of the record, it is necessary that the Cumberland County proceeding be reversed for a determination of the issues without consideration of the subsequently received evidence.

The plaintiff also appeals the court’s denial of her motion to amend the divorce complaint and add a count for separate maintenance. The defendant contends that Cumberland County was not the county of proper venue, as the defendant resided in Clark County at the time of the above proceedings. Section 22 of chapter 68, Ill Rev Stats 1963, establishes venue for separate maintenance action in the county of residence of the defendant. Our courts have held that an objection that the defendant is not a resident of the county where the action is brought goes to the jurisdiction of the court. Briney v. Briney, 223 Ill App 119. However, an objection to venue has been held to be waived where the defendant files an answer admitting residence in the county where the action was filed. Augenstein v. Augenstein, 275 Ill App 18. De Salvo v. De Salvo, 7 Ill App2d 16, 128 NE2d 594. In this case the defendant admitted residence in Cumberland County in his answer to the divorce complaint. Therefore, venue in that county was properly established for purposes of bringing the separate maintenance action by amendment to the divorce proceeding.

The next issue presented is whether the plaintiff was entitled to amend her complaint, as a matter of right, and plead an additional count for separate maintenance in the same action. The Civil Practice Act should be liberally construed. (Ill Rev Stats 1963, c 110, §§ 4, 33(3).) Inconsistent causes of action may be pleaded in the alternative. (Ill Rev Stats 1963, c 110, §43(2).) Urnest v. Sabre Metal Prods., Inc., 22 Ill App2d 172, 159 NE2d 512. However, whether or not to grant leave to amend under the circumstances of each case rests within the sound discretion of the trial court. Village of Averyville v. City of Peoria, 335 Ill 106, 121, 122, 166 NE 488. Soltysik v. Soltysik, 317 Ill 247, 249, 148 NE 40. Buehler v. Buehler, 305 Ill App 609, 612, 613, 27 NE2d 1008. We recognize the desirability of one court’s determining all the rights concerning the marital status of the parties before it.

The trial court, as a matter of discretion, may or may not permit amendment, and in the absence of a showing of abuse of discretion, we must affirm the action taken. Here, however, the plaintiff was denied the right to amend and add a count for separate maintenance because the court determined that separate maintenance and divorce could not be joined. This is a misapprehension. It was error on this record to deny leave to file the amended and alternative complaint for separate maintenance.

The Clark County proceedings were properly dismissed and that court properly dismissed the separate maintenance suit. Our Civil Practice Act, § 48(1) (c) (111 Rev Stats 1965, c 110, par 48(1) (c)), provides for a dismissal of an action when “there is another action pending between the same parties for the same cause.” In construing this section, the court, in Skolnick v. Martin, 32 Ill2d 55, 57 (203 NE2d 428, 429, 430 (1965)), stated:

“. . . . The section refers to ‘the same cause,’ not to the same ‘cause of action,’ and it has been held that actions are ‘for the same cause,’ when relief is requested on substantially the same state of facts. (Leven v. Birrell, 91 NYS2d 729, 731; cf. Meier v. Hilton, 257 Ill 174 [100 NE 520 (1913)]; Carlin v. City of Chicago, 262 Ill 564 [104 NE 905 (1914)] ; James v. Langley, 323 Ill App 268 [55 NE2d 297 (1944)] ; Marco v. Dulles, (DCNY) 177 F Supp 533, 549-550.) Measured by this test, the two actions here were ‘for the same cause.’ And in any case, we have held that identity of cause of action depends upon identity of transaction or occurrence. Geneva Construction Co. v. Martin Transportation [sic, Transfer & Storage] Co., 4 Ill2d 273, 288 [122 NE2d 540, 548 (1954)].”

As we have observed, an action for divorce is a separate action from one for separate maintenance, but they are for the same cause and the relief requested relates to substantially the same state of facts.

It follows, therefore, that the Cumberland County appeal must be remanded for determination of the respective rights of the parties with directions to allow the filing of a count for separate maintenance, if renewed, and for such further proceedings consistent with the views herein expressed. The judgment of the circuit court of Clark County in dismissing the separate maintenance proceeding is affirmed.

Finally, in the Cumberland County proceeding, the defendant counterclaimed for divorce on the grounds of adultery, alleging that earlier-admitted adultery that had been condoned was revived by the subsequent marital misconduct of the plaintiff. The only evidence in the record on the subsequent marital misconduct is the testimony of the defendant. No useful purpose would be served in a recitation of this testimony. We find nothing in the record that would warrant this Court in disturbing the findings of the trial judge on this point. Day v. Day, 33 Ill App2d 247, 178 NE2d 203 (1961); Curran v. Curran, 19 Ill2d 164,166 NE2d 13 (1960).

Judgment of the circuit court of Cumberland County affirmed in part, reversed in part, and remanded with directions; judgment of the circuit court of Clark County affirmed.

TRAPP, P. J. and SMITH, J„ concur.


author: TRAPP, P. J.

text:
    Decatur and Macon County Hospital Association, a Corporation Not For Profit of Illinois, for the Use of Niagara Fire Insurance Company, Phoenix Assurance Company, Standard Fire Insurance Company, Rochester American Insurance Company, American Insurance Company, United States Fire Insurance Company, Hartford Fire Insurance Company, and Merchants Fire Assurance Corporation, Plaintiff-Appellee, v. Erie City Iron Works, a Foreign Corporation, T. A. Brinkoetter & Sons, Inc., a Foreign Corporation, and Illinois Power Company, an Illinois Corporation, Defendants, Erie City Iron Works, a Foreign Corporation, Defendant-Appellant.
    Gen. No. 10,679.
    Fourth District.
    September 26, 1966.
    Rehearing denied October 24, 1966.

      Earl S. Hodges, of Springfield, and Greanias & Owen, of Decatur (Marshall A. Susler, of counsel), for appellant.
    Gif fin, Winning, Lindner & Newkirk, of Springfield (James M. Drake, of counsel), for appellee.
   TRAPP, P. J.

Defendant Erie City Iron Works, hereinafter designated Erie, appeals from a judgment in the sum of $30,818.50 entered in favor of the plaintiff upon the verdict of a jury against Erie and T. A. Brinkoetter & Sons, Inc. Other disposition has been made as to the case against the latter and we consider only the appeal of Erie.

Plaintiff’s action was for property damage in the approximate amount of the judgment incurred as the result of the explosion of a gas-fired boiler manufactured by Erie and installed by Brinkoetter. At the time of the explosion installation had just been completed and was at the stage of the initial start-up and adjustment of the boiler. Title to it had not yet passed to the plaintiff.

The defendant’s theory is that defendant was not guilty of the negligence that was the proximate cause of plaintiff’s damages; that the court should have directed a verdict in favor of this defendant, or granted defendant’s post-trial motion for judgment notwithstanding the verdict of the jury or, in the alternative, should have granted defendant a new trial of the issues, because of error committed by the court in submitting, to the jury, both Count I and Count II of plaintiff’s complaint, which respectively were predicated upon a res ipsa loquitur theory and specific negligence theory; that there was error by the court in denying defendant’s motion for mistrial because of prejudicial conduct of counsel; that conduct of a juror was prejudicial to defendant; and that there was error by the court in giving certain instructions to the jury; and other errors hereinafter discussed.

Plaintiff purchased the boiler as a “package” boiler fabricated by Erie at its plant and shipped assembled for installation as a complete unit with automatic firing controls built on.

The fire control unit and the main motorized valve were not manufactured by Erie but were purchased by it and affixed to the fabricated boiler. The Brinkoetter contract called for it to install the boiler and connect it to the line bringing gas into the building.

In making the installation, Brinkoetter did not install what has been called a “dirt leg,” i. e., a trap consisting of a length of pipe extending beyond the point where a vertical gas line is turned so that it travels horizontally. Its function is to catch condensed moisture and debris in the gas line. Plaintiff had retained consulting engineers to design and supervise installation of the boiler. The schematic drawing provided by the engineer did not show a “dirt leg.” The latter testified that the contractor should install a “dirt leg” whether drawn in the plans or not. Officers of Brinkoetter say that it puts in dirt legs when the plans call for them, otherwise it does not.

Neither the fabricated boiler nor the connecting line, as installed, included a “strainer,” which is described as a distinctive appearing section of pipe containing a screen, the function of which is to catch debris which might be carried through the line by the flow of gas. When used, it is installed in the line ahead of the valves and controls. A brochure of the valve manufacturer recommended that a strainer be placed ahead of the main valve. Such a strainer was not included in the unit fabricated by Erie. The consulting engineer’s schematic drawing did not include a strainer. He testified that he would have included it if he had known that a strainer was recommended. An officer of Brinkoetter testified that he had never heard of a strainer in a gas line. In behalf of the latter, its foreman and employes testified that as the gas line was being installed, steps were taken to knock loose the scale and clean the connecting pipe. It appears that the installation was nearly completed when the contractor was advised by the gas company foreman that it would be necessary to install a regulator, i. e., a device which lowered the pressure from the 35-pound pressure in the main to some 10 pounds as specified by the boiler. A used regulator was available at the hospital and was installed. At first it did not function, but after some adjustment was observed to be reducing the pressure. It was not tested after the explosion. In installing the regulator at this time, it was necessary to cut the gas line with a torch and weld on a section of pipe. It does not appear what, if anything, was done to inspect for and remove debris in the pipe following this operation. There is some conflict in the evidence as to whether or not welding slag would enter the pipe by reason of this work.

Under the terms of its contract with Erie, plaintiff elected to have the services of a start-up engineer. Upon notification of the completion of the installation such engineer, one Enders, was sent by Erie. The explosion in issue occurred at 11:40 a. m. on Thursday, September 25,1958. In summary, it appears that Enders had arrived on the preceding Tuesday, that the boiler was started up and fired for some 20 hours and then shut down, and that on the morning of the 25th it had been started up and fired for some 2 hours preceding the explosion. Enders died following the explosion, apparently as the result of injuries sustained.

With regard to the things done during this period, one Binns, a member of the hospital maintenance staff, testified that Enders started the boiler operation, handled the controls and made adjustments, and that immediately prior to the explosion Enders was making an adjustment of the water level in the boiler. Charles Fearn, foreman of the gas distribution crew of the utility company which was working on the exterior gas line, testified that he had been in the boiler room during the morning and Enders had told him that the boiler was on low fire or “no load” firing, and that he was going to test the boiler on high fire, asking Fearn to time the meter outside so that there could be a measurement of the cubic feet of gas entering the boiler on high fire. No specific arrangement was made as to when this would be done.

Following the explosion, a State boiler inspector, and representatives of the interested parties, together with engineers and experts retained by them, assembled at the scene to examine the boiler which had been kept undisturbed. Several of them testified that they had noticed the absence of the dirt leg and the screen in the gas line connected to the boiler. The main valve was examined as to its external indicator and the testimony varies from the statement that it was apparently closed, through slightly open to one-third open. The boiler inspector testified that he assumed that it was open. It does not appear that any organized procedure was followed so that each expert present observed all of the matters testified to.

The main valve was then disassembled. Most witnesses testified to observing some scale and several pieces of welding slag on both the upstream and downstream sides of the valve.

There is testimony that upon examination of the several parts of the valve, a resilient neoprene seal was observed to be indented and that the stainless steel seat of the valve was scored to a depth of %6th of an inch or so, the width of the indentation being that of a blade of a table knife. There is other testimony that the seat bore only normal scratches. It does not appear that tests were made to determine whether the indentations on the neoprene seal coincided with the scoring of the valve seat. At the trial the neoprene seal no longer bore any indentation. This was explained as being due to the resilient nature of the substance. The steel valve seat was not produced at the trial.

The consensus of the testimony is that there was a gas explosion followed by an explosion of the boiler itself. The opinion testimony is that the first explosion resulted from the ignition of a surplus of gas within the combustion chamber, which gas was somehow ignited. Paul Wilson, an employe of Erie in charge of their service department, testified that he did not believe it possible to find the actual cause of the majority of explosion cases, and George Harper, a professor of engineering at the University of Illinois, testified that in such an explosion things are so disrupted that it cannot be ascertained with certainty what happened, but that it was necessary to draw deductions.

From the record it appears that a variety of factors inducing the explosion may have existed. There is, of course, the contradictory nature of the testimony as to whether or not the motorized main valve was closed or open, whether or not slag from welding had lodged in the main valve so that it was not completely closed, and whether such slag would be sufficient to hold the valve open with the pressures concerned without distorting the valve stem, which apparently was in normal condition.

There is testimony by Ted Brinkoetter that the control system, upon being tested, did not always work, but there is also testimony that it functioned correctly upon tests. Harry Reynolds, an investigating engineer retained by the plaintiff, testified that it would take a very small amount of gas to cause an explosion in this boiler, and that it was particularly hazardous to operate the boiler on a “no load” basis as the mixture of air and gas gets out of balance and becomes explosive. He also testified that upon initial examination, the oil burning switch was on instead of the gas burning switch. A witness, testifying in behalf of Brinkoetter, stated that shortly before the explosion, Enders flipped a switch and that the flame in the boiler went out and did not come on again.

It is one of defendant’s arguments that by this contract it was to furnish a package boiler but had no responsibility for its installation. This position was taken in its first motion to the complaint and is argued here.

The nature of defendant’s disclaimer seems to be based upon its Exhibit #1 contained in a foreword to the instruction manual which Erie shipped with the boiler. A relevant part includes the following:

“When the service of an Erie City Iron Works Engineer is provided for the customer, it is for the purpose of aiding in the training of the customer’s personnel and not to replace them or assume any of their duties. It should be understood that the responsibility for operation rests solely with the customer’s operators and the Erie City Iron Works assumes no responsibility for the customer’s operators’ failure to properly perform their respective duties, and the presence of an Erie City Iron Works Engineer at the customer’s plant in no way relieves the customer’s personnel of any of their responsibilities.”

The following also appears in slightly varying form in several places in the contract for the purchase of the boiler:

“With respect to all preliminary operations, initial start-up, demonstration of capacity and performance guarantees, representatives of the Company are authorized only to advise and consult with the Purchaser or its representatives and no representative of the Company is licensed to operate the equipment. In the event the Purchaser shall operate the equipment specified hereunder prior to final acceptance, the Purchaser shall indemnify and save harmless the Company against any loss or expense and against any liability imposed upon the Company, resulting from the operation of such equipment by the Purchaser prior to final acceptance, except any such loss, expense or liability for injury or damage resulting from the negligent acts or omissions of the Company or its agents or employees.” (Emphasis supplied) .

It appears from the testimony that the package boiler is not operational upon delivery but requires adjustment to make it perform properly. Paul Wilson, who is in charge of field service for defendant, testified that the linkage of the butterfly valve regulating the ratio of air and gas must be adjusted and that the damper linkage must be “positioned.” He testified that the service engineer never operates the boiler but that it is the obligation of the purchaser to make such adjustments according to the engineer’s instructions. He testified that it was the service engineer’s duty to make a visual check of the gas line installed, check the controls and firing equipment, consult and assist placing the boiler in service, instruct in operating the boiler and its controls and assist in making the final adjustments.

Brewster, a witness for Brinkoetter, testified that Enders examined the pipeline but made no suggestions for changes in the work as installed, and the record is that Enders did, in fact, start-up and fire the boiler, make adjustments, and made or had arranged to make the tests, including the testing of its capacity on the high fire. Binns, an employe of the hospital, testified that no one other than Enders handled or adjusted the controls. The manual submitted by Erie contains a section A designated “Preparing the boiler for service — Inspection of unit.” Section A-l states that prior to placing equipment in service a complete inspection should be made to determine its condition and continues:

“In case of newly constructed power equipment, this inspection should insure that the unit has been correctly completed.”

Section A-2 is as follows:

“Responsibility for the completion of construction normally rests with the customer’s construction engineer working in conjunction with the manufacturer’s erection or service engineer. At completion of construction work, an inspection should be made in the presence of the customer’s construction engineer, operating engineer, the construction superintendent and the manufacturer’s engineer (if one is present) and agreement reached that the equipment is in a satisfactory condition for placing into service.”

There is no evidence that such inspection or agreement was reached or called for by defendant’s service engineer.

As to the contention that by contract Erie had no responsibility, claimed under its Exhibit #1, the “foreword” to the instruction manual and the several provisions set out in the contract should not control under these circumstances. The effect of these documents might be that Erie could not be required to perform the tests and effect the start-up of the boiler, but they should not control liability where under the evidence it might be reasonable to conclude that they did, in fact, undertake and perform the work. The contract provision quoted does not attempt to exclude negligence of Erie employes.

Erie discusses Count I of the complaint as involving the principles of res ipsa loquitur under a pleading of general negligence. These principles are thoroughly discussed in Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305, and need not be reiterated.

Erie urges that the inference of negligence under Count I should not be allowed because the boiler was not under its exclusive control. The defendant points out that the evidence discloses that Enders, Brewster, an employe of Brinkoetter, Binns, an employe of the hospital, and Robert Brinkoetter were all present at the time of the explosion. The evidence has been examined to determine what, if anything, these individuals were doing to exercise control of the unit. We cannot say that it is contrary to the manifest weight of the evidence for the jury to conclude that Erie’s man Enders was, in fact, in control of the proceedings incident to the start-up and testing of the boiler. There is no evidence that any person other than Enders participated in any phase of the work.

In May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394, the complaint alleged the purchase and delivery of a new rope which broke shortly after placing the rope into use. There was judgment n. o. v. entered by the trial court. The Appellate Court reversed, holding that the inference of negligence under the theory of res ipsa loquitur was properly applicable. As to that defendant’s contention that it was not in control of the rope at the time of the injury, the court said:

“Decisions from other states and recent cases here reject this inflexible application of a rule of control and hold that a defendant in a res ipsa loquitur case cannot automatically defeat an allegation of negligence with a bare showing that, before harm struck, it had parted with control of the harmful instrumentality. (Prosser, Torts 206 (2d ed 1955).)
“The demonstrable trend of these authorities is to determine from the nature of the defective instrumentality and the surrounding circumstances whether the inference of the defendant’s negligence is strong enough to survive the fact that, between the defendant’s control and the plaintiff’s injury, another possession intervened.”

The court continued to say that it was for the determination of the jury as to whether the permissive inference of negligence arising from the facts was to prevail over defendant’s countervailing proof of due care.

As stated in Prosser, Law of Torts, 2d ed 1955, p 206, chap 7, § 42, the word “control” may be the wrong word. It is said:

“Some courts have said that it is enough that the defendant was in exclusive control at the time of the indicated negligence. It would be far better, and much confusion would be avoided, if the idea of ‘control’ were discarded altogether, and we were to say merely that the apparent cause of the accident must be such that the defendant would be responsible for any negligence connected with it.”

In Schroeder v. City & County Sav. Bank of Albany, 293 NY 370, 57 NE2d 57, the defendants were several contractors and the owner of a building under repair. The court noted:

“It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage.”

Amongst other cases defendant relies upon Kirchner v. Kuhlman, 334 Ill App 339, 79 NE2d 628. There defendant’s employes were working on plaintiff’s premises but we find no evidence that these defendants had control of the trash container belonging to the plaintiff in which the fire started. Again, in Krump v. Highlander Ice Cream Co., 30 Ill App2d 103, 173 NE2d 822, the collision of two automobiles caused one of them to strike and damage plaintiff’s building. While the court said that the doctrine of res ipsa loquitur did not apply, it did hold that there was a presumption of negligence where an accident occurred which would not ordinarily occur if due care had been taken, and that it was proper to call upon the defendants to exculpate themselves. The distinction between this conclusion and the theory of res ipsa loquitur appears slight.

Defendant argues that Count I of the complaint alleged general negligence stating a cause of action upon the theory of res ipsa loquitur, while Count II alleges certain acts of specific negligence, and that under the authorities in this State the inference of negligence which arises under res ipsa loquitur, “vanishes” upon the introduction of evidence of specific negligence. Amongst the authorities cited are Bollenbach v. Bloomenthal, 341 Ill 539, 173 NE 670. This rule has been categorically overruled by our Supreme Court in Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305. In that case the complaint charged general negligence in one count employing the theory of res ipsa loquitur, and in a second count alleged specific negligence. At the close of the evidence plaintiff was required to, or did elect, to rely upon the charge of negligence and the theory of res ipsa loquitur. The verdict for the plaintiff was reversed in the Appellate Court on the theory that res ipsa loquitur did not apply as other parties had access to the area of the gas main. In reversing the Appellate Court, the Supreme Court remarked upon the conflict amongst the Illinois decisions. We may note that many of these decisions are in broad language open to a variety of interpretations, and frequently they do not indicate the reason for the decision. In Metz the Supreme Court concluded that the more studied, more just view is that the inference of negligence does not vanish when contrary evidence appears, but that it remains to be considered and weighed by the jury against the direct evidence offered by the party charged, citing Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520; Illinois Pattern Jury Instruction, 22.01 with comment on pages 128, 129; Prosser, 20 Minn L Rev, 241. See also O’Hara v. Central Illinois Light Co., 319 Ill App 336, 49 NE2d 274; May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394.

Defendant’s contention that plaintiff should have been required to elect as between the counts is controlled by the rule of Metz. Defendant’s authorities are Wm. Wrigley, Jr. Co. v. Standard Roofing Co., 325 Ill App 210, 59 NE2d 510; and Simmons v. South Shore Hospital, 340 Ill App 153, 91 NE2d 135. In the former case the Appellate Court undertook to specify what may be described as the requirements that plaintiff elect between the general negligence count and the count for specific negligence. The only cited authority for such procedure was Bollenbach v. Bloomenthal and its rule that the inference of negligence vanished upon the introduction of evidence of specific negligence. By reason of the Metz decision, this reason for such rule no longer exists. Simmons v. South Shore Hospital, as well as Jackson v. 919 Corp., 344 Ill App 519, 101 NE2d 594, simply relied upon the rule of Wrigley as authority without discussing it.

There is, in fact, persuasive opinion contrary to the contention of Erie regarding the theory of election in Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42. There premises were damaged by an explosion of gas leaking from the company lines. The complaint alleged only specific negligence and there was some evidence of a failure of periodic inspection. The trial court gave an instruction authorizing the jury to apply, or employ, the inference of negligence under res ipsa loquitur. The Appellate Court reversed since there was no pleading of general negligence, but stated that upon a new trial the complaint should be amended to include such an allegation. The court there said:

“An inference of general negligence arising from the doctrine of res ipsa loquitur is not necessarily inconsistent with proof of specific negligence. To hold that proof of specific negligence precludes the application of the res ipsa doctrine could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence. . . . If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should then be for a jury to determine under which theory, if any, the plaintiff should prevail. McCormick v. Kopmann, 23 Ill2d 189, 205, 161 NE2d 720 (3rd Dist 1959).”

The Illinois courts recognize that the doctrine of res ipsa loquitur is but one form of circumstantial evidence. May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394.

It has been suggested that the doctrine that requires election assumes that the inference arising through res ipsa loquitur must be an alternative to direct proof rather than a type of circumstantial evidence to be weighed with other evidence, and it has been criticised as an assumption that the pleader must be totally ignorant of the facts. 2 ALR3d 1335, at 1340. There is reason in the hypothesis that there should not be a penalty imposed upon the pleader for placing before the court all facts known to him. 27 Fordham L Rev, 411-415; Foster v. Union Starch & Refining Co., 11 Ill App2d 346, 137 NE2d 499. This is particularly true when an allegation notifies the defendant of the intent to rely upon the inference of negligence arising under the doctrine of res ipsa loquitur. It is the policy under the rule of Metz v. Central Illinois Electric & Gas Co., 32 Ill2d 446, 207 NE2d 305, that once the inference of negligence arises through allegations of general negligence, it remains for the consideration of the jury, unless and until the precise cause of the injury is established. 27 Fordham L Rev 411. In Prosser, Law of Torts, 2d ed, chap 7, § 43, p 214, it is suggested:

“It is quite generally agreed that the introduction of evidence which does not purport to furnish a complete explanation of the occurrence does not deprive the plaintiff of res ipsa loquitur.”

In Cassady v. Old Colony St. Ry. Co., 184 Mass 156, 68 NE 10, at p 12, the court said:

“The defendant also contends that, even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine, because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, (citing authorities), there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it.”

We believe that this position was approached in Krueger v. Richardson, 326 Ill App 205, 61 NE2d 399, when the court noted that the plaintiff was not required to prove the specific acts of negligence as alleged, but they had a right to rely upon the proof and its reasonable inferences to establish a prima facie case of general negligence.

In this case it seems proper to say that reasonable men might differ as to the effect of the evidence heard by the jury. Expert witnesses would not even undertake to announce an hypothesis, but rather advised of the virtual impossibility of reaching a specific determination of what caused the explosion. This situation here appears to be precisely that contemplated in the language of Erckman v. Northern Illinois Gas Company.

In its reply brief Erie contends that the doctrine cannot be followed because there are multiple defendants. No Illinois cases seem applicable as precedent. In Schroeder v. City & County Sav. Bank of Albany, 293 NY 370, 57 NE2d 57, it was held error to dismiss a complaint seeking to apply res ipsa loquitur as against three def end-ants. See also Burr v. Sherwin-Williams Co. (Cal App), 258 P2d 58, 38 ALR2d 905 et seq. Again in Zichler v. St. Louis Public Service Co., 332 Mo 902, 59 SW2d 654, general negligence was pleaded against the service company while specific negligence was pleaded as to another defendant who was found not guilty by the jury. It was contended that it was improper to permit the res ipsa loquitur inference to be applied to one joint tort feasor, but not the other. Pointing out that the rule was one of evidence rather than pleading, the court said:

“A plaintiff should not be compelled to confine his action to one joint-feasor only in order to be accorded the rights which the law gives to him.”

It being the policy under the rule of Metz that the inference of negligence is to be weighed by the jury with other evidence, we see no reason why the benefit of such rule should be denied to the plaintiff where under the events at issue, more than one party may be the source of injury to the plaintiff for otherwise he would be limited in the use of, or be completely denied the benefit of the rule. In Metz the Supreme Court said that whether the doctrine applies in a given case is a question of law for the trial court. We believe that these conclusions dispose of the contentions of Erie that the court erred in refusing to strike par 8 to Count I.

Defendant contends that the case must be remanded for error in the giving of instructions. His objection to plaintiff’s instruction #20 is that it permits the jury to consider the case upon the theory of res ipsa loquitur, as well as upon the allegations of specific negligence. The matters hereinabove discussed dispose of this contention.

There is objection to Brinkoetter’s instruction #6 which may be summarized as an issues instruction relating to negligence alleged as to Erie and as to the defendant Brinkoetter. It is contended that as to Erie there is no evidence in the record as to certain matters stated in the instruction to be alleged in the complaint. The Abstract discloses that at the conference on instructions Erie simply made the objection that the evidence did not support all of the charges. This does not meet the rule that specific objections to instructions must be made at the conference on instructions. Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 180 NE2d 347. The court’s comment indicates that he believed that those matters not supported by the evidence had been omitted from the instruction. Under such circumstances we do not believe that there is reversible error.

Erie urges that the cause must be reversed and remanded by reason of the fact that a juror on voir dire indicated that he was not interested in any lawsuits then pending in court, but that subsequent to the trial, counsel discovered that he had been defendant in a lawsuit and was, at the time of trial, a plaintiff in a pending cause. Erie does not contend that it was, in fact, prejudiced by the juror sitting upon the panel, but says that the prejudicial effect cannot be calculated. It indicates that it could have challenged the juror, though it is not claimed that it would have done so. In Department of Public Works & Buildings v. Christensen, 25 Ill2d 273, 184 NE2d 884, it was alleged that the party would not have accepted the juror if a true answer had been given. The Supreme Court there held that the motion for a new trial would be denied unless it was shown not only that the juror answered falsely, but also that prejudice resulted. Erie cites the case of People v. Ortiz, 320 Ill 205, 150 NE 708, which may be distinguished because in that case the juror had actually expressed hostility to the defendant which he had concealed.

Erie urges that the judgment must be reversed because of a reference to insurance introduced during cross-examination in behalf of the defendant Brinkoetter. One George Harper testified in behalf of the plaintiff as an expert witness who had examined the boiler following the explosion. It appears that he had originally been requested to make the examination by a representative of the company insuring Erie. The name of the insurance company was given in answer to a question to whom he had delivered his report. The trial court sustained an objection to a question as to what party was covered and an objection as to whether the insurance company represented Erie. The trial court, while indicating disapproval of counsel’s action, denied the motion for a mistrial.

It is clear that plaintiff did not, in any way, precipitate this issue. Under the circumstances of this case, the proceedings clearly indicated to the jury that certain insurance companies were to be the beneficiaries of a judgment for plaintiff. This fact would seem to indicate little probability of prejudice as between insurance companies upon the issue of liability. Edwards v. Hill-Thomas Lime Co., 378 Ill 180, 37 NE2d 801.

Upon the possibility of prejudice regarding the issue of damages, the amount of the verdict is slightly less than the amount paid by plaintiff to Erie for the boiler. Insofar as counsel may have attempted to create prejudice as between the parties defendant, the verdict of the jury is joint and they seem to make no distinction. Under the circumstances of this case, we conclude that there was no abuse of discretion by the trial court in refusing to grant a mistrial. Isenhart v. Seibert, 6 Ill App2d 220, 127 NE2d 469.

Upon consideration of the issues of law, we conclude that the trial court did not err in refusing to direct a verdict or enter a judgment n. o. v. upon the several motions made by Erie, and that, from an examination of the evidence, the verdict of the jury is not contrary to the manifest weights of the evidence.

Taken with the case was plaintiff’s motion to dismiss as a “use plaintiff” the Niagara Fire Insurance Company. The effect of such dismissal is to reduce the amount of the judgment in the sum of $4,873.05. The motion is allowed and the judgment ordered reduced in said amount.

The judgment of the trial court is affirmed, but the cause is remanded with directions to enter judgment in the amount due by reason of the dismissal of the party plaintiff pursuant to motion.

Affirmed as modified.

SMITH and CRAVEN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William A. Wax, Defendant-Appellant.
    Gen. No. 10,730.
    Fourth District.
    September 26, 1966.
    Rehearing denied October 24, 1966.

      Charles A. Bellows, of Chicago, for appellant.
    Carl A. Lund, State’s Attorney, of Paris, for appellee.
   TRAPP, P. J.

Defendant appeals from a conviction of a charge of murder upon the verdict of a jury with a sentence of imprisonment of not less than 20 years nor more than 35 years.

It is not denied that shortly after 7:00 a. m. on August 10, 1964, the defendant shot the deceased with a shotgun at a distance of some 20 feet as the decedent was walking away, and that as the decedent lay on the ground following such shot, the defendant approached and discharged 2 more shells into him.

It is defendant’s theory that as a matter of law the State did not prove him guilty beyond a reasonable doubt in that there was failure to prove that he was sane at the time of the offense; that the trial court improperly admitted into evidence the testimony of lay witnesses to rebut the defendant’s evidence of lack of criminal responsibility; that the trial court improperly limited cross-examination of lay witnesses for the prosecution upon the question of defendant’s sanity at the time of the offense; that the trial court improperly admitted into evidence the testimony of Dr. Groves Smith, a psychiatrist, in that his examination of the defendant was of a nature which deprived the defendant of his right to counsel as guaranteed by the Constitution of the State of Illinois and of the United States; and finally that the trial court erred in refusing to instruct the jury as to the elements of manslaughter and in refusing to submit to the jury a manslaughter verdict.

The defendant urges that at the moment of the shooting he was suffering from a mental illness so that he lacked a substantial capacity to conform his conduct with the requirements of the law, and hence was not criminally responsible under the statute, chap 38, § 6-2 (a) (Ill Rev Stats, 1965).

In behalf of the defendant, one Dr. Greenfield was requested by defendant’s attorneys to examine the defendant to determine his mental condition with respect to capacity to stand trial and cooperate with counsel, his mental status as of the time of the shooting and to make such other examinations and give such treatment as was thought necessary. By reason of this arrangement, Dr. Greenfield was considered to have the status of a treating physician.

A brief chronology of the events leading to the shooting includes the following: On the evening of July 14th defendant and his wife were at a tavern in Brockton. He took his wife home at about 8:00 p. m. and went with his friend, Ashmore, to Greenup' where they spent the evening at 2 taverns returning at 2:30 or 3:00 a. m. Defendant apparently received some information that decedent, Wilkey, had been to his home while he was away. There was some argument with his wife during the early morning of July 15th. Returning home from Ashmore’s Tavern in Brockton on the evening of July 16th, there was some further discussion with his wife and in the early morning they went to Wilkey’s home where Wax demanded an apology from Wilkey, which was made. There is evidence that on this occasion defendant threatened to shoot Wilkey in two if he came upon the place again. The evidence is that from the 18th of July through the 3rd of August, defendant and his wife had a great deal of “argument” during which she denied any intimacy with Wilkey, but she seemingly, on one or more occasions, said that she missed seeing Wilkey when they went to the tavern and that she might leave the defendant. A daughter of the defendant testifying, characterized that which has been described throughout the evidence as “argument” as being mainly name-calling. On the evening of August 3rd defendant went to the tavern at Brockton at about 8:00 p. m. and following the closing at 1:30 a. m. drank a fifth of whiskey with his friend Ashmore, returning home at about 3:30 a. m. There was further “argument” with his wife about Wilkey, and there was some comment that he was ready to go if she was, upon which he fired a revolver through the window. On the evening of August 5th defendant was at a tavern in Brockton from 3:30 p. m. to 8:30 or 9:00 p. m. and was then going to Westville with a friend, but they stopped at another tavern where he became engaged in an altercation with one Charley St. Clair, who allegedly had made remarks about his wife. On the evening of August 6th, or the early morning of August 7th, defendant’s wife confessed or admitted that she and Wilkey had engaged in sexual relations on the 15th of July. The testimony of the defendant is that he went downstairs and told the children of the situation and called the sheriff of Douglas County. The sheriff, being delayed in answering the call, the defendant took his shotgun and went in the truck to look for Wilkey, but not finding Wilkey at home, defendant’s son persuaded him to return. En route home he threw the shotgun into a field. The sheriff of Douglas County came to defendant’s home at around 5:00 o’clock in the morning, at which time defendant was noticeably under the influence of drink. The sheriff took the guns in the house and defendant’s son went to look for the shotgun in the field described, but could not find it. The sheriff of Douglas County returned in the evening when it was noted that defendant had sobered up and the sheriff exercised his good offices in an attempt to affect a reconciliation.

In the meantime the defendant and his wife had engaged in conversation and there is some evidence that they had agreed that she should stay at the home until after the crops were harvested.

On August 9th, the Sunday preceding the day of the shooting, the defendant is described as being nervous, and he testified that on that night he wrote what has been called the “suicide note” which he put into his wallet.

On the morning of August 10th, defendant testified that he was going to the elevator at Brockton to see about selling some corn so that he could make the down payment on an automobile for a daughter. His wife testified that he told her that he was going to Hume to see about some tile and that he would get breakfast when he returned. Defendant’s testimony is that on the way to the elevator he stopped in the field and found the shotgun, which he put in his automobile then drove on to the elevator to sell the corn. The deceased, Wilkey, was employed at the elevator, and defendant arrived at about 7:00 a. m. In the elevator office he saw Wilkey for the first time since the 17th of July. As Wilkey went out the door of the office, defendant called to him and asked him if he was going to finish tearing down the old house that defendant had given to him and Wilkey said, according to defendant:

“Yeah, I’ll be out there some of these days, and I am going to get everything out there anyway.”

and defendant testified that Wilkey “kinda sneered at me.” As decedent then walked away en route to some elevator out-building, defendant went to his car, got the shotgun and followed decedent, approaching within some 20 feet and shot decedent, who fell to the pavement. Defendant then walked up to him and discharged 2 more shells into the decedent. He then returned to his automobile and drove to his farm home and was located there by the sheriff of Douglas County within the hour. The defendant and his wife testified that he invited her into the yard, told her that he had killed Wilkey and that he would shoot her and himself, she ran and fell and that they talked until the sheriff came. The sheriff testified that when he arrived at defendant’s home, defendant and his wife were in each others arms and that the gun was leaning against a shed unloaded with 2 shells on the ground, and subsequently he obtained a third shell from defendant’s pocket.

Dr. Greenfield interviewed the defendant on September 19,1964, September 26th and October 3rd, each interview lasting approximately 1 hour and 20 minutes, and included physical and neurological examination made at the county jail. The diagnosis was a basically paranoid schizoid personality described as fundamental, i. e., with no demonstrable organic cause. The doctor defined paranoid as a character difficulty making the individual suspicious of people, jealous and with a sense of fear and insecurity. Schizophrenia is defined as a state of unreality where the mind cannot adhere to normal thoughts.

From his interviews Dr. Greenfield concluded that defendant had a poor image of himself, that he felt that he was disliked, ugly, was not intelligent, was suspicious of the motives of others, that he hated to be alone and possessed unexplained fears at night, that everyone was against him, and that his mother had rejected, or did not love him.

The doctor found that with this personality the defendant worked harder, acquired a farm of some 800 acres and economically became quite successful.

It was the opinion of Greenfield that on the date in issue, defendant was incapable of exercising “good reason and judgment and unable to control his acts in such a manner as to be within the law,” that just prior to the shooting, defendant suffered an “acute schizophrenic panic state,” i. e., a functional mental illness affecting the ability to control his actions, which state continued for a period of 2 or 3 days following the shooting.

It is the hypothesis of Dr. Greenfield that the defendant, just prior to the shooting, suffered from mental and physical exhaustion resulting from emotional strain arising from repeated arguments with his wife and eating little food. He concluded that the defendant became withdrawn, wavered between suicide, homicide, reconciliation with his wife, and suffered from an increasing fear that he would lose his farm as well as his wife. Dr. Greenfield, assuming that Wilkey used the words testified to by the defendant, believed that upon Wilkey’s statement, there was a psychotic break resulting from an overwhelming threat to defendant’s security and that thereupon defendant became incompetent to control his action.

Defendant urges that the case must be reversed and remanded for new trial for error arising in the admission of the testimony of certain lay witnesses who were permitted to express an opinion upon the insanity of the defendant at times approximating the shooting. It is contended that the error arises in that these witnesses were not required to state the facts upon which such opinions were based. We note that these lay witnesses had known the defendant for periods ranging from 3 years to 20 years and included individuals with whom the defendant had transacted business upon a confidential, as well as a casual basis. In at least one instance, the testimony was from an individual who, with her husband, had been intimate social friends for several years. Dr. Greenfield had testified that during the period beginning on July 15th there was a marked change in the personality of the defendant wherein he became withdrawn, suffered emotional and physical exhaustion and anxiety. The several lay witnesses had observed the defendant’s demeanor, conduct and manner of speaking during the week preceding the shooting, and on the morning thereof in everyday transactions and associations. None of the lay witnesses had noted any change in the conduct or demeanor of the defendant during the prodromal period testified to by Dr. Greenfield. Such testimony has been held competent. Walker v. Struthers, 273 Ill 387, 112 NE 961.

The “facts and circumstances” which are necessary as a foundation for a lay opinion as to sanity seem to be essentially an opportunity for observation. King & Pillinger, Opinion Evidence in Illinois, p 220. Cleary, Handbook of Illinois Evidence, 1st Ed § 9-12, states that the lay witness must base his opinion upon his own observation which he is required first to state in sufficient detail to show knowledge of the mental condition of the person in question. In Peters v. Catt, 15 Ill2d 255, 154 NE2d 280, it is stated that the lay witness giving an opinion as to the mental condition of the testator must first testify to sufficient instances, facts or circumstances to indicate his opinion is not a guess, suspicion or speculation. The several lay witnesses generally testified to conversations regarding business transactions, the status of defendant’s crops and the doing of members of his family, and the sheriff of Edgar County testified that as he took the defendant from Brockton to Paris, defendant was responsive to questions concerning his crops, his new automobile and his other affairs, and that defendant asked if he might have an attorney represent him and asked what attorney he should obtain. Similar conversations were deemed a sufficient opportunity to observe and sufficient foundation to rebut a presumption of insanity, in People v. Thomas, 409 Ill 473, 100 NE2d 588.

Defendant cites as authority for his position, People v. Phipps, 268 Ill 210, 109 NE 25, wherein it was contended that competent testimony offered in behalf of the defendant was excluded. From the opinion it appears that no witness so described was asked to express an opinion upon the issue of sanity. People v. Krauser, 315 Ill 485, 146 NE 593, is relied upon by the defendant. In that case a police officer who had no prior acquaintance with the defendant was permitted to express an opinion that the defendant was sane. It appears that the police officer, who had been present during an interview recorded by a stenographer, was not asked to state any facts upon which he based an opinion, but rather the State’s Attorney said: “I’ll omit details,” and simply asked for the opinion. Objection was made to the admission of such testimony. The court, holding this admission to be error, pointed out that there was no showing that the opinion was based upon what had occurred in the presence of the witness, or whether he had observed what did occur, and that such opinion might have been formed upon the basis of but a part of what occurred at the interview.

The record discloses that counsel for the defendant made no objection to the foundation for the testimony as to an opinion expressed by the lay witnesses, and we find that there was no substantial cross-examination of such witnesses as to the details of the transactions, observations or conversations upon which their several opinions were founded.

It has been held that it is primarily a question for the trial court to determine whether or not sufficient facts and circumstances have been stated by a lay witness to support an opinion of the sanity of a party, and that a reviewing court will not reverse unless there has been an abuse of discretion. Quellmalz v. First Nat. Bank of Belleville, 16 Ill2d 546, 158 NE2d 591; Anthony v. Anthony, 20 Ill2d 584, 170 NE2d 603.

The defendant also contends that the trial court erred in limiting the cross-examination of the lay witnesses as to the defendant’s sanity. The record discloses that upon the trial, this matter was raised as to only one witness, William Morrell. He was an employee of the elevator where the shooting occurred, had known the defendant for some years and testified as to his observation of the defendant at the grain office immediately prior to the shooting and after the shooting. He expressed an opinion that at that time and place the defendant was sane. While there was virtually no cross-examination upon the observations or conversations or conduct observed, defendant’s counsel asked: “What is acute schizophrenic episode?” The trial court sustained the objection upon the ground that there had been no direct examination of the witness upon the subject. It is argued that by this question defendant was attempting to demonstrate to the jury the fact that the witness was incompetent to testify as to sanity. Strictly speaking, it is not for the jury to say whether or not the lay witness should be permitted to testify upon the issue of sanity, but rather such determination is the responsibility of the trial court. If, however, defendant was simply seeking to minimize the weight to be given by the testimony to the jury, inquiry into esoteric nomenclature is not the means recognized under the rules of cross-examination. The witness did not purport to testify to, or diagnose and identify mental illness, the existence of which is asserted by the defendant’s psychiatrist, but rather testified to an opinion which was based upon an acquaintance extending over several years, and observation of the defendant immediately prior to and shortly after the shooting. The lay opinion of sanity is based on the absence of abnormal speech or conduct. King & Pillinger, Opinion Evidence in Illinois, p 223. See also Richardson, Modern Scientific Evidence, § 8.22. The record discloses that the trial court, in sustaining the objection to this line of cross-examination, suggested that counsel might inquire into the facts and circumstances to which the witness had testified. Such was not done for any practical purpose. People v. Morris, 30 Ill2d 406, 197 NE2d 433, and People v. Coli, 2 Ill2d 186, 117 NE2d 777, are cited for the rule that the defendant has the right of cross-examination as to any manner explaining or discrediting that which was said on direct examination. In each case the issue at hand was one of the identification of the defendant. In Morris, the Supreme Court held that the defendant should have been permitted to cross-examine upon the issue of the sobriety of the prosecuting witness. We read these authorities to mean that there is the right to cross-examination upon any matter going to explain, modify or discredit what was said upon direct examination. It does not appear that the defendant’s line of cross-examination here comes within this rule.

It is contended that since a psychiatrist expressed an opinion that defendant was not criminally responsible within the language of the statute at the time of the shooting, the court should have directed a verdict and should not have submitted the case to the jury. It is urged, that absent an impeachment of the psychiatrist’s credentials, or the showing of a professional incompetence, this testimony introduces such a reasonable doubt in the minds of men that the case should be taken from the jury and the defendant found not guilty as a matter of law.

No Illinois cases are cited upon the issue by either of the parties. Such a proposition was urged in People v. Brislane, 295 Ill 241, 129 NE 185, wherein it was contended that evidence of defendant’s insanity created a reasonable doubt as to guilt. The Supreme Court said, at page 247:

“Whether there was a temporary insanity, produced immediately by intoxication, or a fixed insanity, are questions peculiarly for the jury to determine. . . .”

In People v. Thomas, 409 Ill 473, 100 NE2d 588, it was also contended that there had been a failure to prove defendant’s insanity beyond a reasonable doubt. The court held that the question was one for the jury and that its verdict would not be disturbed unless it was so palpably against the weight of the evidence as to indicate that the verdict was based upon passion or prejudice. Certiorari was denied in the United States Supreme Court, 100 L Ed 758. See also People v. Muniz, 31 Ill2d 130, 198 NE 2d 855.

The defendant gives as authority for the proposition, United States v. Westerhausen, 283 F2d 844, where the court reversed the trial court for denial of a motion for acquittal. There the defendant had introduced substantial evidence of a long consistent history of insanity and the defendant had been certified as insane. The court noted that the quantum and nature of proof of insanity required to take the case to the jury varies depending upon the quantum and nature of proof of insanity, and that the government failed to offer sufficient evidence to sustain the conviction. This rule is not of universal application in the Federal Courts. In Dusky v. United States, 295 F2d 743, the court concluded that the issue should go to the jury where the evidence viewed fairly and as a whole, afforded permissible choices for the jury, and that it was proper to submit the issue to the jury, distinguishing that case from those wherein the evidence of insanity was so overwhelming that the issue should not be submitted to the jury. See also United States v. Robinson, 327 F2d 959, wherein it was held that the issue was properly presented to the jury upon lay testimony of sanity as opposed to expert testimony supporting the opinion of insanity. We believe that the rule in Illinois is stated in People v. Brislane. See also People v. Bacon, 293 Ill 210, 127 NE 386.

It is contended that this case must be reversed and remanded for a new trial by reason of the nature of an examination made of the defendant by Dr. Groves Smith, a psychiatrist acting at the request of the State’s Attorney. This examination was made on September 23rd at the jail in Paris. It will be recalled that the first examination of Dr. Greenfield was on September 19th. The only evidence upon this examination was elicited from Dr. Smith upon cross-examination. He stated that he called at the jail and that he saw the defendant and asked his name. Dr. Smith identified himself as a doctor making an examination at the request of the State’s Attorney. Following such introduction, it appears that the defendant and the doctor had no conversation, but that for about 20 minutes there was silence and presumably, mutual observation. Dr. Smith then asked the defendant if he had ever been in the Army, Navy or Marine Corps, and said that the defendant shook his head to signify no. There followed another interval of silence and then the defendant asked to have the sheriff get his attorney. Dr. Smith testified that he stated that he would be glad to have the attorney present, and the latter arrived shortly. He testified that he told the attorney that he wished to examine the defendant with his permission, but that no further examination was conducted after such conversation. It appeared that the defendant stood mute.

It is urged that such examination deprived the defendant of the benefit of counsel in violation of the Sixth Amendment of the United States Constitution and of the Constitution of the State of Illinois, that defendant was deprived of due process under the Fourteenth Amendment and that the exam was not consonant with the provisions for medical examination in Supreme Court Rule 17-1(1).

The argument that Dr. Smith did not inform the defendant of his identity and that he was obtaining evidence from the defendant without the latter having knowledge thereof is not supported by the record.

While the argument makes no claim of violation of the privilege against self-incrimination under the Fifth Amendment to the United States Constitution, and art II, § 10 of the Constitution of Illinois, we believe that the presence or absence of the element of self-incrimination is a key factor in the resolution of this proposition.

In 8 Wigmore, Evidence, p 378, § 2263, it is stated that the privilege against self-incrimination is directed at the employment of legal process to extract from the person’s lips an admission of guilt which would take the place of other evidence. The Supreme Court considered the issue of self-incrimination by reason of a mental examination in People v. Krauser, 315 Ill 485, 146 NE 593. There two doctors examined the defendant at various times at the request of the State’s Attorney. The doctor introduced himself as making the examination pursuant to such request. There was objection to the doctor testifying since the examinations were without the consent of the defendant and while he had none representing him, so that his rights were violated, and that such examination required the defendant to testify against himself. It was held that there was no violation of the privilege against self-incrimination for there was no testimonial compulsion involved. See also State v. Grayson, 239 NC 453, 803 SE2d 387; French v. District Court, 153 Colo 10, 384 P2d 268; State v. Myers, 220 SC 309, 32 ALR2d 430; Noelke v. State, 214 Ind 427, 15 NE2d 950. In People v. Greer, 28 Ill2d 107, 190 NE2d 742, it was held that the privilege against self-incrimination was not violated under art II, § 10 of the Illinois Constitution, when examination by special light was made of the hands of the defendant to show the presence of a fluorescent powder. It was pointed out that such evidence was beyond the privilege against self-incrimination as no testimonial capacity was called upon.

In People v. English, 31 Ill2d 301, 201 NE2d 455, the Supreme Court examined the statute relating to Sexually Dangerous Persons, chap 38, § 105 (Ill Rev Stats, 1965), and its provisions for a psychiatric examination. The court pointed out that such statute does not make provision for protection of the privilege against self-incrimination by a grant of immunity as to statements made during the examination provided by statute. Accordingly, the court held that under the statute, the defendant was not privileged from submitting to the examination, but that the privilege against self-incrimination protected the defendant from being required to make any statements to the psychiatrist which might incriminate him.

In the English case, the court pointed out that in chap 38, § 104-2 (Ill Rev Stats, 1965), relating to examinations to determine competency to stand trial, the statute provided a grant of immunity to the person examined under the provisions of that statute insofar as the results of the examination involved evidence upon issues of guilt. We have found no statutory provisions relating to a plea of not guilty by reason of insanity, and no statutory provisions for a psychiatric examination which might be relevant upon such issue. Supreme Court Rule 17, it is to be noted, does not contain any grant of immunity which would protect the privilege against self-incrimination in a criminal case as is found in chap 38, § 104r-2(d), (Ill Rev Stats, 1965). The Supreme Court has indicated that a court has no power to grant judicial immunity, People v. English, 31 Ill2d 301 at p 308, 201 NE2d 455. Assuming, therefore, that Dr. Smith had been appointed under the general powers of the court as in People ex rel. Noren v. Dempsey, 10 Ill2d 288, 139 NE2d 780, or under Rule 17, the privilege against self-incrimination would necessarily be protected by standing mute as authorized in People v. English. This defendant did, substantially and effectually, both at the interview in issue, and in the subsequent interviews with court appointed psychiatrists.

It appears, therefore, under the authorities that the occasion when Dr. Smith and the defendant mutually observed one another prior to the arriving of defendant’s counsel, there was, in fact, no testimonial compulsion as to inculpating matters. There being no valid question of constitutional dimensions upon the issue of self-incrimination, we believe that the issue raised as to the deprivation of the benefit of counsel is controlled by Schmerber v. California, 86 US 1826, 16 L Ed2d 908. In that case defendant was arrested at a hospital while receiving treatment for injuries suffered in an automobile collision. At the direction of a police officer, a physician at the hospital took a blood sample from the petitioner and the chemical analysis disclosed sufficient alcohol in the blood to indicate intoxication. The evidence of this analysis was admitted into evidence at the trial. Defendant objected on the ground that the blood had been taken despite his refusal on advice of counsel to submit to the test, contending that there was a denial of due process under the Fourteenth Amendment, a denial of his privilege against self-incrimination under the Fifth Amendment, and of his right to counsel under the Sixth Amendment. The Supreme Court held that there was no violation of the privilege against self-incrimination for the reason that such privilege guarantees the right to remain silent unless he chooses to speak, but that the evidence from the blood sample did not come within the privilege. The court then considered the contention that the defendant was deprived of his right to counsel under the Sixth Amendment. It held that since he was not entitled to assert the privilege against self-incrimination, there was no issue of denial of counsel’s assistance in respect to any rights that defendant did possess, and the claim of violation of the Sixth Amendment was denied. Here, as in Schmerber, no issue of counsel’s ability to assist in respect of any right which he did possess was presented. It may be noted that if the provisions of Rule 17 had been followed in this case, there is no authority under the Rule for counsel to be present at the examination as is apparently urged here. The cases cited by defendant in support of his position that defendant was deprived of counsel include Gideon v. Wainwright, 372 US 335, 9 L Ed2d 799, wherein no counsel had been appointed for an indigent defendant at any time during the trial. In the other instances which might be relevant, we find in Escobedo v. Illinois, 378 US 478, 12 L Ed2d 977; Messiah v. United States, 377 US 201, 12 L Ed2d 246; Spano v. New York, 360 US 315, 3 L Ed2d 1265; and People v. Waterman, 9 NY2d 561, 175 NE2d 445, that in each case incriminating statements or confessions had been obtained when defendant had no counsel, or counsel had been absent. In each instance the evidence came from the lips of the defendant.

Upon the issue of the denial of due process under the Fourteenth Amendment, we are cited to Rochin v. California, 342 US 165, 96 L Ed 183, 25 ALR2d 1396. In that case sufficient force was used to compel the defendant to have his stomach pumped, and the narcotic pills, as the result of such process, were admitted into evidence. We do not believe that such facts make this case in anyway comparable to Rochin.

While the procedure followed by the State’s Attorney was possibly not the most desirable, still there was unmodified precedent in this State, People v. Krauser, 315 Ill 485, 146 NE 593, for the steps taken, and we cannot, in the exercise of judgment upon the whole course of proceedings, conclude that there was an actual deprivation of defendant’s constitutional rights, nor any offense to canons of decency, fairness and conscience. A judgment will not be reversed because of absence of counsel where there is no possibility of prejudice to the defendant. People v. Taylor, 32 Ill2d 165, 204 NE2d 734; Walton v. United States, 202 F2d 18.

Defendant urges that the case must be reversed and remanded by reason of error in the trial court in refusing to give an instruction defining manslaughter in essentially the words of the Criminal Code, chap 38, § 9-2(a), (Ill Rev Stats, 1965), i. e., killing if:

“. . . acting under a sudden and intense passion resulting from serious provocation by:
“(1) The individual killed, . . .”

It is argued that although the jury might reject the testimony of Dr. Greenfield that the defendant was insane, it could, nevertheless, accept such testimony with the other evidence and conclude that the defendant was acting under intense passion occasioned by the intimacy of the defendant’s wife and the deceased. While counsel cites certain authorities upon the giving of instructions as to the theory of the case, no authorities are cited in terms of provocation. The evidence is clear that defendant was not acting in response to any physical injury and that decedent was, for practical purposes, shot in the back as he was walking away from the scene. As to the conversation upon the occasion, no matter how it may be interpreted, words do not constitute such provocation as would make the offense manslaughter. People v. Phipps, 268 Ill 210, 109 NE 25; People v. McMurry, 64 Ill App2d 248, 212 NE2d 7.

Defendant refers to the drafting comments which follow chap 38, § 9-2 (Ill Rev Stats, 1965), relating to “serious provocation” as including the category:

“. . . adultery with the offender’s spouse. . . .”

No Illinois cases upon such form of provocation cited either by the defendant, or in the commenting note, refer to adultery as “serious provocation.” Adultery with a spouse as provocation generally has been limited to those instances where the parties were discovered in their act of adultery, or immediately before or after its commission, and the killing must have followed immediately upon detection. 26 Am Jur 174, Homicide, § 28; 29 CJ 1142, Homicide, § 125.

Here the event initiating the series of events occurred some three weeks before the shooting and the wife’s confession occurred five days prior thereto. The record discloses that the defendant had not seen the deceased from July 17th to just before the shooting on August 10th, and that there had been time for his immediate anger to cool is shown by the testimony of defendant’s wife, that the defendant had suggested to her that the three of them meet to straighten out their affairs. Further, she and the defendant had discussed their plan that they stay together until after the harvest.

Dr. Greenfield’s testimony takes into account the alleged emotional strain induced in the defendant by his continuing “arguments” with his wife. A daughter of the defendant describes “arguments” as being essentially name-calling. Defendant’s wife testified that most of defendant’s resentment was against her, and that the latter became- angry because she would not agree to “cuss out” Wilkey, and that, in fact, defendant did not say much about Wilkey for the last few days prior to August 10th.

We do not believe that passion engendered by the conduct of persons other than the decedent can be made into provocation within the language of chap 38, § 9-2 (Ill Rev Stats, 1965), and we must conclude that examination of the record discloses no evidence which authorizes the giving of an instruction as to manslaughter. People v. Strader, 23 Ill2d 13, 177 NE2d 126; People v. Turner, 60 Ill App2d 388, 208 NE2d 406.

We have examined the record with care and find numerous matters of evidence contradicting directly, or inferentially, defendant’s account of his state of mind and his explanation excusing his conduct. It is to be noted that he engaged in personal and other business activities, and that his social activities were as frequent as before. The language of the so-called “suicide note” does not, in fact, refer to suicide, and upon the event it may be said to be consistent with what transpired. It does not appear, therefore, that the verdict of the jury is contrary to the evidence, and we conclude that the several errors argued do not constitute reversible error.

The judgment of the trial court is affirmed.

SMITH and CRAVEN, JJ., concur.