author: Mr. JUSTICE McGLOON

text:
    Martin J. Burns, Plaintiff-Appellee, v. West Chemical Products, Inc., Defendant-Appellant.
    (No. 55681;
    First District (3rd Division)
    June 14, 1973.

      John C. Doyle, Jr., of Chicago, for appellant.
    William J. Harte and Philip E. Howard, both of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from a jury verdict awarding the plaintiff $30,000 for an injury he sustained when, as a business invitee on the defendant’s premises, he slipped and fell, allegedly due to the defendant’s negligence in maintaining the property. In this appeal the defendant sets forth several reasons why the judgment should be reversed, among which are: (1) that the plaintiff was contributorily negligent as a matter of law, (2) that there was no evidence that the defendant failed to exercise due care for the plaintiff’s safety, and (3) that there was no competent evidence that tire defendant’s negligence was the proximate cause of the plaintiff’s injury. The defendant argues further that there were certain incorrect evidentiary rulings by the. trial court: the admission into evidence of the shoe worn by the plaintiff on the day of the accident, the denial of defendant’s motion to take a deposition of an expert witness called by the plaintiff, the trial court’s restriction of defendant’s cross-examination of the plaintiff, and the exclusion of evidence offered by the defendant as to its compliance with certain ordinances of the City of Chicago. Finally, defendant argues that the verdict was excessive. The plaintiff, in response, argues that the evidence clearly supports the judgment and that there was no prejudicial error in the conduct of the trial.

We affirm.

The relevant facts adduced at trial are as follows: At the time of the accident the plaintiff was employed as a driver by the United Parcel Service and was in the process of making a pickup at the loading dock of the defendant’s plant. The plaintiff had been making similar stops at the defendant’s plant for four or five months prior to the day of the accident. In making these pickups the plaintiff would back his truck up to the loading dock, go into the building, load the packages into his truck and depart. He testified that when he first began to make regular stops at the defendant’s plant he attempted, on five or six occasions, to use the stairway that rose from the ground level 3 or 4 feet, to the level of the loading dock, but each time it was impossible because the door from the stairway was blocked by 55 gallon drums stacked on the dock at the top of the stairs. On these occasions he would step up onto the bumper of his truck, which was IV2 or 2 feet high, and then onto the loading dock. After a while this became his regular way of getting onto the dock.

On the date of the accident, November 2, 1964, the plaintiff had made his pickup and was descending from the loading dock. He testified that in descending he placed his right foot on the bumper of his truck and then his left foot down to the ground. As he brought his right foot down and placed it on some “white mud” that covered the surface of the driveway, it slipped and slid out from under him. He fell to the ground and sustained a fracture of the right ankle.

The plaintiff further testified that on the day of the accident there had been light rain falling for most of the day. He noticed that the driveway was covered by an area, about 8 feet in diameter, of white, concrete powder-like material. The material was in the shape of a half-moon coming out from the wall of the plant near a drain spout. This substance combined with other material on the driveway to form what he characterized as “white mud.” It was very slippery. During previous stops at the defendant’s plant he had noticed the white substance on the wall of the building. He had also noticed liquid coming from the drain spout on the wall of the plant even on days when it was not raining. However, he did not see any emissions coming from the drain spout on the day of the accident.

The plaintiff also identified plaintiff’s exhibit 5 as the shoe he wore the day of the accident. When he left home on that day the shoe was clean, and prior to arriving at defendant’s plant the shoe had no material on it. The material on the shoe was, he testified, generally the material that was on the ground at defendant’s plant.

Dr. William Colburn, called as an expert witness, testified that he was a chemist and licensed professional engineer. He tested the material found on the plaintiff’s shoe and found traces of sodium phosphate, a common constituted of cleaning compounds, fatty material, vegetable oil and alkanolamide, another common ingredient used in cleaning compounds. There was no testimony elicited from Dr. Colburn regarding the properties of these various substances (i.e. whether they were slippery when wet). He testified only to what he found on the plaintiff’s shoe.

William Wallace testified that he was the plant manager for the defendant. He explained that the defendant manufactured chemicals which included insecticides, deodorants, deodorant fluids, powdered soap and cleaning compounds. He described in detail some of the manufacturing processes of the defendant and in particular a dust collection system in the south end of the building. This apparatus consisted of large fans which collected dust particles left as a result of the crushing of certain cleaning compounds and an exhaust duct that ascended the exterior of the south wall of the plant to the roof. A weather hood covered the exhaust duct, and a drain pipe ran down the south wall from the base of the duct. The drain pipe emptied onto the driveway of the loading dock area where the plaintiff slipped. Wallace further testified that he had never seen white material on the south wall of the plant, and he had never seen an accumulation of white mud on the driveway of the south loading dock.

Clifford Lytle testified, that he was the traffic manager for the defendant. He testified that on the day the plaintiff was injured there was nothing blocking the stairway adjoining the dock, nor had there been anything blocking the stairway from June to November, 1964. On cross-examination he testified that there was no mud on the driveway of the loading dock on the day of the accident. When shown a photo of the loading dock area he could not identify the white substance on the south wall of the plant.

William Washington testified that he was an employee of the defendant, and on the day of the accident he helped the plaintiff load his truck. He further testified that when they were done loading the truck, the plaintiff jumped off the loading dock and did not step down to the bumper of his truck as he had testified. On cross-examination Washington stated that the driveway on that day was covered with what looked like mud with a little white mixed in it. He also agreed that occasionally the white material could come down the drain pipe and accumulate on the ground.

Daniel Green testified that he also was employed by the defendant on the day of the accident. He was walking by the loading dock and saw the plaintiff jump off the dock. He remembered there was mud on the driveway when he went to help the plaintiff, but couldn’t remember whether it was white. It was slippery.

Dr. Melvin Post testified that he was the doctor that treated the plaintiff. As a result of the fall, the plaintiff suffered a trimalleolar fracture of the right ankle. After a closed reduction of the fracture was unsuccessful, he performed an open reduction. He removed some loose pieces of cartilage and positioned the bones with a steel screw. He stated that although there was a good result from this treatment, the ankle would not get better with advancing age, only worse. The plaintiff will always have some difficulty due to the injury.

After the foregoing evidence was adduced during the trial, the jury returned a verdict for the plaintiff in the amount of $30,000, and judgment was entered on the verdict. Subsequently, the defendant filed a post-trial motion, and the trial judge ordered a remittitur of $5,000 conditioned upon defendant tendering $25,000 to the plaintiff in satisfaction of the judgment. The defendant refused such tender and now asks for a reversal of the judgment.

The standard to be applied in a judicial review where one party seeks judgment as a matter of law notwithstanding an adverse jury verdict is stated in Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

“In Our judgment verdicts ought to be directed and judgments n.o.i>. entered only in those cases in which all the evidence, when Viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill.2d at 510.

Defendant first contends that the plaintiff was contributorily negligent as a matter of law and that therefore the judgment must be reversed. The defendant argues that the plaintiff did not exercise ordinary care for his own safety when he chose to descend from the loading dock in the way he did and that the plaintiff did not use the stairs provided by the defendant for that purpose. Defendant contends that when a plaintiff has available to him two different ways of proceeding, one known to be safe, and one known to involve certain possible hazards, if he chooses to follow the hazardous route, and is injured in the process, he is contributorily negligent as a matter of law. He cites the following cases in support of this position: Geraghty v. Burr Oak Lanes, Inc., 2 Ill.App.2d 48, 118 N.E.2d 63; Day v. Barber-Colman Co. (1956), 10 Ill.App.2d 494, 135 N.E.2d 231; Tompkins v. Twin Oaks Dairy, Inc. (1968), 91 Ill.App.2d 88, 234 N.E.2d 403. This proposition, although appearing in these cases, has been specifically refuted by our Supreme Court.

Both the Day case and the Tompkins case cite Geraghty v. Burr Oak Lanes, Inc. as authority for the proposition defendant contends is dispositive of this issue. However, the Supreme Court granted leave to appeal in the Geraghty case, and in Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill.2d 153, 125 N.E.2d 47, the court in reversing the judgment for defendant entered by the appellate court, said: “We therefore conclude that whether plaintiff had a choice of routes and, if he had, whether he chose a safe route ° * were all questions of fact which the circuit court properly submitted to the jury for decision.” (5 Ill. at 162.) For a similar statement of the rule see, Larson v. Tri-City Electric Service Co. (7th Cir. 1943), 132 F.2d 693. We note, it should be remembered, that plaintiff testified that on previous occasions he had found the stairway blocked by 55 gaUon drums stacked on the dock at the top of the stairs.

The correct standard to be used “in determining when questions of negligence and contributory negligence become questions of law, * * (Pedrick v. Peoria and Eastern R.R.Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, at 510), is that formulated in Pedrick. In that opinion the Supreme Court discussed the standards that had been used to determine contributory negligence as a matter of law and concluded that neither was entirely satisfactory.- The opinion then pronounces the oft-quoted rule which we have set out above. In the instant case there was some evidence which inferred contributory negligence on the part of the plaintiff. However, when all the evidence is viewed in its aspect most favorable to the plaintiff, we cannot say that it so overwhelmingly favors the defendant that no contrary verdict could ever stand. In other words, we cannot say the plaintiff was guilty of contributory negligence as a matter of law. That issue was properly submitted to the jury as the triers of fact.

The defendant next contends that there is no evidence in the record that it failed to exercise due care to keep its premises reasonably safe for the plaintiff’s use. We disagree. There was certainly evidence adduced during the trial that, if believed by the jury, inferred that tire defendant allowed a slippery white substance to remain on the driveway of the loading dock. From the witnesses’ descriptions of this substance, it is clear that it was not a natural element usually found on such driveways. The defendant admittedly manufactured various household cleaning products, including powdered soap and cleaning compounds, and there was testimony from one of the defendant’s witnesses that occasionally a white material came down the drain pipe and accumulated on the ground. The plaintiff testified that he had seen liquid flowing from the drain pipe on prior occasions. One of the defendant’s employees testified that he had seen a similar substance on the wall of the plant near the drain pipe.

The plaintiff was a business invitee and was owed the duty of ordinary care to keep the premises reasonably safe for his use. (Olinger v. Great Atlantic and Pacific Tea Co. (1961), 21 Ill.2d 469, 173 N.E.2d 443.) The above evidence was sufficient to allow the jury to conclude that the defendant breached that duty.

The defendant also argues that there was no competent evidence that the “white powder” on the driveway was the proximate cause of the plaintiff’s injury. We disagree. The plaintiff and Washington testified to the presence of the grayish-white substance on the driveway, and the plaintiff and Green testified that the driveway was slippery. This, together with the plaintiff’s direct testimony that the white substance caused his fall, is certainly competent evidence of the proximate cause of the injury. Admittedly, there was contradictory testimony, but the matter of the credibility of the witnesses is for the triers of fact to determine.

The authorities cited by the defendant in support of its argument that there was no competent evidence of proximate cause are not analogous to our case. In Dixon v. Hart (1951), 344 Ill.App. 432, 101 N.E.2d 282, the plaintiff alleged she slipped and fell on the floor of defendant’s store, but offered no evidence as to the cause of the accident other than that the floor had been recently waxed. In McInturff v. Chicago Title & Trust Co. (1968), 102 Ill.App.2d 39, 243 N.E.2d 657, a wrongful death action, the deceased, a janitor, apparently fell down a stairway in the building he was employed to maintain.

The instant case is more similar to those cases where the plaintiffs slipped and fell on a foreign substance found on the defendants’ floor. In Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill.2d 469, 173 N.E.2d 443, the court stated the general rule in such cases to be “[Wjhere a business invitee is injured by slipping on a foreign substance on the defendant’s premises, and there is evidence tending to show that the substance was on the floor through the acts of defendant or his servants, the issue of negligence will be submitted to the jury.” 21 Ill.2d at 474.

The trial court was correct in submitting the issue of defendant’s due care and the issue of proximate cause to the jury.

. The defendant next contends that he was severely prejudiced by the ruling of the trial judge which allowed into evidence, over defendant’s objection, the shoe allegedly worn by the plaintiff on the day of the accident. During the direct examination of the plaintiff, he identified exhibit 5 as the shoe he wore the day he was injured. He stated it was clean when he left home that morning, and prior to his arrival at defendant’s plant. The material on the shoe was generally the material that was on the driveway at defendant’s plant. He also testified that the shoe was in the same condition then as it was when it was removed from his foot at the hospital following the accident.

The defendant states that there was no foundation testimony showing the whereabouts of the shoe for the 5 year period between the accident and trial and that for this reason the shoe should not have been admitted.

We have examined the cases cited by the parties and can only conclude that the trial judge has wide discretion in determining whether proper foundation has been laid for the acceptance of some piece of physical evidence. We note that there is no suggestion in this case that the exhibit was left in an open, unattended place for a period of time, as was the situation in most of the cases cited by the defendant where , the exhibit was not allowed into evidence. After careful consideration, we conclude that the trial judge did not abuse his discretion in allowing the shoe to be placed in evidence. Johnson v. Pennsylvania R.R. Co. (1958), 17 Ill.App.2d 508, 151 N.E.2d 125; Cribbs v. Daily (1966), 67 Ill.App.2d 441, 214 N.E.2d 588.

The defendant next contends that the trial court erred in denying its motion to take a discovery deposition of Dr. William Colburn, an expert witness called by the plaintiff. While this cause of action was pending, both parties made use of discovery procedures. The name of Dr. Colburn was not known to the defendant prior to trial because he was not engaged by the plaintiff until after the trial began. When he was called as a witness, the defendant objected and asked for a delay in order to depose the witness. The defendant’s objection was overruled when it could not cite any authority in support of its position. Dr. Col-burn’s testimony continued, and he described the tests he made on the material he took from plaintiff’s shoe and the results of those tests. He did not describe the properties of these various substances.

Defendant argues that the decision of the trial judge did violence to spirit and intent of cases such as Monier v. Chamberlain (1966), 35 Ill.2d 351, 221 N.E.2d 410, in that the plaintiff was allowed to circumvent the objective of “educating the parties in advance of trial as to the real value of their claims and defenses” by waiting until the last minute to employ his expert.

The plaintiff responds that he did not violate any Supreme Court rule nor any discovery order entered during the pendency of this action. The plaintiff also correctly contends that he was under no duty to keep the defendant informed of new witnesses after interrogatories had been filed. Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill.App.2d 5, 220 N.E.2d 43.

The question of whether a witness, previously unknown to the adverse party, should be allowed to testify is a matter for the trial court’s discretion. There is precedent to the effect that when one party is surprised by the calling of a witness whose name and address were withheld from the adverse party (Hansel v. Freimann (1962), 38 Ill.App.2d 259, 187 N.E.2d 97) or when improper information about the witness’ whereabouts has been given to the adverse party (Rosales v. Marquez (1965), 55 Ill.App.2d 203, 204 N.E.2d 829), the trial court may exclude tire witness or allow the surprised party to interview the witness before he testifies. However, this is not the case here because Colburn’s name was not withheld from the defendant during discovery.

The case of Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill.App.2d 5, 220 N.E.2d 43, is more similar to the facts in our case. In that personal injury action, an expert witness was employed by the plaintiff shortly before trial began and well after the time when replies to interrogatories were filed. When called as a witness during trial, the expert was allowed to testify even though the defendant had not previously known of his existence. On appeal the court held first, that there was no duty on the plaintiff to keep the defendant informed of new witnesses after interrogatories had been filed and second, that the trial judge did not abuse his discretion in aHowing the witness to testify, because the defendant was arguably on notice that the plaintiff may have called an expert, and the defendant did nothing to meet that fine of argument except to object to the witness when he was called.

In the instant case Dr. Colburn was not employed until after the trial had begun and therefore was not named in previously filed interrogatories. Although the expert, Dr. Colburn, did not testify as to the cause of the accident, the defendant in this case was, due to the aHegations in the complaint and the plaintiff’s direct testimony, at least arguably on notice that the plaintiff would try to show that emissions from the defendant’s plant were related to the plaintiff’s injury. Further, in this case the defendant was not denied the right to call its own expert chemist. Wallace, the plant manager, testified that the defendant employed a chemist and that he was readüy available to them to testify. In view of these facts, we are convinced that the trial judge did not abuse his discretion in aHowing Dr. Colburn to testify.

The defendant raised two further points in its brief but agreed to waive these points during oral argument before this court. Therefore, it wiH not be necessary for us to decide whether the trial court erred in restricting defendant’s cross-examination of the plaintiff and whether the court erred in excluding evidence as to the defendant’s compliance with certain ordinances of the City of Chicago.

FinaUy, the defendant contends that the verdict is excessive. After hearing aU the evidence in regard to the type of fracture suffered by the plaintiff, the prognosis, his projected life expectancy, the fact that he was then employed as a mail carrier, the fact that he incurred a doctor’s biH of $250, a hospital bill of $548.40, miscellaneous x-ray bills of $59.50, and loss of income from the date of the accident through April, 1965, the jury returned a verdict for the plaintiff in the amount of $30,000. Later, the trial judge entered a remittitur of $5,000 contingent upon the defendant’s acceptance of a $25,000 judgment. These factors, the defendant contends, show that the verdict was excessive.

The remittitur entered by the trial judge in this case, although somewhat unusual in that it was conditioned upon the defendant’s tender of the reduced amount to the plaintiff, rather than the plaintiff’s acceptance of the reduced verdict, does not indicate that the verdict was excessive. The fact that there was a remittitur does not establish the fact that the verdict was the result of passion and prejudice. Gleason v. Cunningham (1942), 316 Ill.App. 286, 44 N.E.2d 940.

The question of excessiveness turns on “whether or not the total amount of the verdict falls within the necessarily flexible limits of the fair and reasonable compensation or is so large as to shock the judicial conscience.” (Barango v. Hedstrom Coal Co. (1956), 12 Ill.App.2d 118, 138 N.E.2d 829.) The verdict in this case is not so large as to indicate it was the result of prejudice or passion on the part of the jury and, therefore, will not be disturbed. (Ford v. Friel (1947), 330 Ill.App. 136, 70 N.E.2d 626.) The judgment against the defendant in the amount of $30,000 is affirmed.

Judgment affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Jones, Defendant-Appellant.
    (No. 57872;
    First District (5th Division)
    June 15, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DRUCKER, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald A. Lowe, Defendant-Appellant.
    (No. 57931;
    First District (5th Division)
    June 15, 1973.
    James J. Doherty, Public Defender, of Chicago, (William C. North and Lee Hettinger, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Ronald Mendes, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

LORENZ, J., took no part.


author: Mr. PRESIDING JUSTICE DRUCICER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Barry Mitchell et al., Defendants-Appellants.
    (No. 57958;
    First District (5th Division)
    June 15, 1973.

      Julius Lucius Echeles and Frederick F. Cohn, both of Chicago, for appellants.

      Edward V. Hanrahan, States Attorney, of Chicago, (Elmer C. Kissane and George Michael Keane, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCICER

delivered the opinion of the court:

Defendants, Barry Mitchell and Eddie Mitchell, were found guilty of murder after a jury trial. Barry Mitchell was sentenced to 30 to 100 years and Eddie Mitchell to 14 to 20 years. They both appeal.

The following contentions are raised: (1) that the defendants’ Fifth Amendment rights to remain silent were violated when police officers testified that they refused to respond to police questioning; (2) that the court erred in failing on its own motion to instruct the jury as to voluntary manslaughter; (3) that the court erred in refusing to submit a tendered instruction as to involuntary manslaughter; (4) that the court improperly limited cross-examination of a prosecution witness; (5) that the evidence was insufficient to support a conviction of either defendant beyond a reasonable doubt; and (6) that the sentence given to Barry Mitchell was excessive.

The State’s evidence may be summarized as follows: On March 13, 1971, at about 11:15 P.M., Eddie Mitchell (who was 16 years old) entered the Homestead Tavern and attempted to purchase some beer. Upon being refused service by the bartender he went over to Troy Cline (the deceased) and insisted that the deceased purchase the beer for him. At the time the deceased was drinking with his brother Ronald Cline and others. The deceased refused and Eddie started an argument with him. A few blows were exchanged. Eddie then left the tavern saying that he was going to get his brother (Barry Mitchell) and come back and kill the Cline brothers. He returned to the tavern 15 minutes later and called for the Clines to come outside with him. The deceased became angry and started walking toward the tavern door. Ronald Cline went after him trying to prevent a fight. When they arrived at the door, Eddie began striking them with a radio antenna he had taken off an automobile. Ronald Cline took the antenna away from Eddie and attempted to get him into a car so that they could go to Eddie’s brother’s tavern to resolve the dispute; he was holding Eddie around the arms and waist but wasn’t trying to hurt him; he was just trying to prevent Eddie from inflicting any injury. Barry Mitchell then came on the scene. He approached from the side of the street opposite the Homestead Tavern. When Barry got to the middle of the street, he held up a gun. Then, as Ronald Cline stated:

“I had a hold of Eddie at the time. I don’t remember whether I turned him [Eddie] loose or whether he lurched, * * *, but anyway the shooting started.”

Barry Mitchell fired about six shots, one of which killed the deceased. The deceased was holding a set of car keys in his hand at the time. There were about 18 to 30 people on the street. The deceased was 30 years old, six feet one inch, and weighed 175 pounds. Ronald Cline was 26, six feet tall and weighed 185 pounds.

The owner of the Homestead Tavern testifying for the prosecution stated that just prior to the shooting he heard Bany Mitchell holler, “Eddie, duck, I will get him.” On cross-examination he was asked if the Cline brothers were good customers of his. He answered, “Yes, sir.” The assistant State’s Attorney then objected and the objection was sustained. He went on to testify, without objection by the State, that the Clines came to his tavern quite often.

The coroner’s pathologist testified that the bullet which killed the deceased entered on the left side of his stomach and lodged in the right side of his back; it was possible that the deceased was turning toward his right at the time of the shot; it did not enter straight on.

Deborah Rogers, Barry Mitchell’s girl friend, testified for the defendants. She saw Eddie Mitchell walking on the street some time after 11:15 P.M. Eddie told her that he had been beaten up and asked her to get Barry for him. She then got Barry and told him that “Eddie was getting beat up.”

Eddie Mitchell testified in his own behalf. After the initial conflict with the deceased in the tavern, he ran over to Deborah Rogers and told her to get his brother. He admitted that when he left the tavern he told the deceased he “would get [his] brother to kill him.” When Barry approached the middle of the street in front of the tavern, “the people were coming out in the middle of the street after us.”

Barry Mitchell testified in his own behalf. Debbie Rogers had told him that a “bunch” of men were beating up his brother. As he approached the Homestead Tavern he saw a crowd of 25 to 35 people. His brother was being beaten but got away and ran past Barry. Barry then put the gun into the air “to scare the people.” Some of the people began coming toward him. The deceased was first, Ronald Cline was behind the deceased and others behind Ronald Cline. The deceased had a metal object in his hand. Barry panicked and shot the gun “in their direction”; he was not aiming at anyone in particular; he “did not mean to hit” the deceased. He denied ever hollering, “Duck, [Eddie], I’ll get him.” When the gun was emptied, he fled. He was caught by the police and taken to the police station. His brother’s face was swollen.

Carl Smith, a Chicago police officer, testified for the defendants. He was at the police station when the defendants were brought in. Eddie’s face was red and swollen. Defense counsel asked Smith if he had a conversation with Eddie relating to his swollen face. Smith responded that he did and that Eddie said the deceased had struck him. On cross-examination Smith stated that he asked Eddie where his brother and the gun used in the incident were, but that Eddie would not respond. No objections were interposed as to these questions.

During direct examination of John Roberts, a Chicago police officer testifying for the State, Roberts stated (without objection by defense counsel) that after he advised the defendants of their “rights” at the police station, they informed him of their desire to remain silent. Opinion

Defendants first contend that their fifth-amendment rights to remain silent were violated when the prosecution elicited testimony to the effect that they had refused to respond to police questioning atfer being taken into custody.

No objection was made to the questions involved and defendants acknowledge that they may claim error only under the “plain error” rule (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a)) since errors of constitutional dimension like other errors are generally deemed waived by failure to properly object. (People v. Long, 39 Ill.2d 40, 233 N.E.2d 389.) Supreme Court Rule 615(a) provides in relevant part:

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

We believe the rule is inapplicable here because the references to the defendants’ desires not to respond to police questioning was very brief and not emphasized by the prosecution at any other time during the trial, and the jury was fully informed as to the defendants’ version of the incident which did not conflict that greatly with the State’s evidence. See People v. Johnson, 2 Ill.App.3d 965, 275 N.E.2d 649.

Defendants next contend that the court erred in failing on its own motion to instruct the jury as to voluntary manslaughter. The established rule in this state has been that even if there is evidence justifying the submission of a voluntary manslaughter instruction, the court is not bound to submit such on its own motion. (People v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266.) Defendant urges that Taylor was overruled by People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756. We disagree. In Joyner, unlike Taylor and the instant case, a voluntary manslaughter instruction was tendered by the defendant, but it did not fully comply with IPI — ■ Criminal 7.05 which covers voluntary manslaughter. The court held that under the circumstances of that case which it labeled as a “close case factually,” fundamental fairness required that the jury be instructed as to voluntary manslaughter despite the technical non-compliance with IPI — Criminal 7.05. The court made no reference to Taylor and we believe did not overrule Taylor by implication (see 20 Am.Jur.2d, Courts, § 232, p. 561; New Amsterdam Cas. Co. v. National Union Fire Insurance Co., 266 N.Y. 254, 194 N.E. 745), but merely decided the case based on the precise facts before it. It is settled law that the precedential scope of a decision is limited to the facts before the court. People v. Arndt, 49 Ill.2d 530, 276 N.E.2d 306.

Defendant next contends that the court erred in failing to submit a tendered instruction as to involuntary manslaughter. Both parties agree that the issue here is whether there is evidence in the record upon which the jury could have conceivably based a verdict of guilty of involuntary manslaughter. People v. Bembroy, 4 Ill.App.3d 522, 525, 281 N.E.2d 389.

We agree with the State that an instruction as to involuntary manslaughter was not justified by the evidence in the record. The theory of defense at trial was self-defense or defense of a third party. It has been held that since self-defense (or defense of a third party) presupposes the intention to kill or cause great bodily harm, said defense is inconsistent with the crime of involuntary manslaughter since the latter offense, by definition, is evidenced by the mental state of recklessness, not intent. People v. Johnson, 54 Ill.App.2d 27, 36, 37, 203 N.E.2d 283.

In People v. Latimer, 35 Ill.2d 178, 220 N.E.2d 314, the defendant pointed a gun at the deceased after they had an argument. Defendant testified that he was just trying to frighten the deceased; that he did not intend to shoot him; and that he did. not know whether the safety of the gun was set. In holding that the evidence did not warrant an instruction on involuntary manslaughter the court stated at 182-183:

“We have repeatedly held that it is not necessary to show that an accused has formed an intent to kill in order to justify a murder conviction. It is sufficient to show that he voluntarily and wilfully committed an act, the natural tendency of which was to destroy another’s life, with the intent being implied from the character of the act.” (Emphasis added.)

Under the rule set forth in Latimer we believe that the evidence did not show “recklessness” but rather an intent to kill or knowledge that the defendant’s acts would cause death or grave bodily harm. The undisputed facts show that Barry Mitchell walked to the center of the street, raised his gun in the air to scare the people and proceeded to fire about six bullets into a crowd of 18 to 30 people and killed one of the individuals who had been fighting with his brother. As was stated in People v. Gonzales, 40 Ill.2d 233, 241, 239 N.E.2d 783:

“[W]here the evidence clearly demonstrates that a killing was murder the giving of a manslaughter instruction is erroneous.”

Defendant cites People v. Reece, 123 Ill.App.2d 97, 259 N.E.2d 619, and People v. Barksdale, 131 Ill.App.2d 103, 266 N.E.2d 516. In Reece the deceased initially pulled out a gun to show the defendant and then feU backward. The defendant then pulled out a gun to scare the deceased, feU backward himself, shot the gun and killed the deceased although he was not aiming at him. This is unlike the instant case where the defendant, although perhaps at first reacting in fear when he raised the gun in the air, proceeded to fire six shots toward a crowd of people. In Barksdale the defendant fired one shot toward a car not aiming at anyone but aUegedly acting in self-defense. Again, the evidence there supported a conclusion that the defendant acted recklessly without the intent to kill.

Defendants next contend that the court improperly limited cross-examination of a State witness, namely, the owner of the Homestead Tavern. Defendants argue that the limitations on cross-examination prevented them from showing his bias toward the deceased and his brother. We have reviewed the record and conclude that any such limitation was not prejudicial.

Defendants next contend that the evidence was insufficient to support either conviction beyond a reasonable doubt.

First we address the case against Barry Mitchell. Here it is urged that Barry MitcheU’s actions were justified under Ill. Rev. Stat. 1971, ch. 38, par. 7 — 1. It provides:

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

Defendant first argues that when he arrived at the scene of the incident, he saw older bigger men holding or beating his brother; that he had been informed minutes earlier by Deborah Rogers that his brother was being beaten; that his brother was the victim of a battery committed on a public way which is an aggravated battery (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4(8)), which in turn is a forcible felony. (Ill. Rev. Stat. 1971, ch. 38, par. 2 — 8.) Assuming for the moment that when Barry Mitchell came on the scene Eddie Mitchell was being held or beaten on the street, this would still not justify his act of firing six shots in the direction of the group of people in the area. Defendant omits the significant fact that before he fired even the first shot, his brother had already escaped from the person holding him and had run by him across the street. At this point Barry Mitchell was no longer preventing imminent death or great bodily harm to another nor the commission of a forcible felony.

Barry Mitchell next argues that the use of deadly force was justified because he reasonably believed that such force was necessary to prevent great bodily harm to himself. He relies mainly on the fact that the deceased had a “metal object” in his hand, the inference being that defendant believed this to be a gun. The deceased’s brother testified that the deceased was holding car keys in his hand. The coroner’s pathologist testified that the bullet did not enter the deceased’s body “straight on” and that his body could have been turning away when shot. In short, the issue of whether justifiable self-defense was established was one of fact to be decided by the jury. (People v. Pearson, 4 Ill.App.3d 462, 281 N.E.2d 422; People v. French, 3 Ill.App.3d 884, 279 N.E.2d 519.) The evidence is not so insufficient as to require reversal.

Next we turn to the case against Eddie Mitchell. His murder conviction resulted from the fact that the jury held him accountable for the acts of his brother. The controHing statute is Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2, which provides in relevant part:

“A person is IegaUy accountable for the conduct of another when:
0 0 0
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * *

The State bears the burden of proving the above elements beyond a reasonable doubt. (People v. Ramirez, 93 Ill.App.2d 404, 410, 236 N.E.2d 284.) In the instant case the State argues that defendant “solicited” his brother to commit murder. “Solicit” is defined in our Criminal Code as, “to command, authorize, urge, incite, request, or advise another to commit an offense.” (Ill. Rev. Stat. 1971, ch. 38, par. 2 — 20.) The State relies on the facts that when Eddie Mitchell left the tavern after the initial confrontation with the Cline brothers, he vowed to come back and kiH them, and that he told Deborah Rogers to get his brother because he had been beaten up. But it is undisputed that Eddie MitcheH never requested that his brother come to the tavern and kiH anyone. The fact that he may have wished them dead may indicate that he shared a common intent with his brother, but it has no bearing on the issue of whether there was a “solicitation.” As stated in 22 C.J.S. Criminal Law, § 88(2), p. 265:

“Mere suggestion of enmity toward the victom of a crime does not constitute aiding and abetting its commission. Where the assistance is rendered by words of encouragement and incitement, it must be proved that they were addressed to, or heard by, the actual criminal.”

See Quinn v. State, 20 S.W. 1108 (Tex. Cr. App. 1893).

We find insufficient evidence of accountability to prove defendant Eddie Mitchell guilty of murder beyond a reasonable doubt.

Defendant Barry Mitchell lastly argues that his 30 to 100 year sentence was excessive. He was 20 years old at the time of the offense and his prior criminal record shows a fine of $25 for some undesignated offense and a conviction for possession of marijuana for which he was placed on probation for six months. The latter conviction is void in light of People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407. His shooting the gun into the crowd of people cannot be condoned, but in view of the diminutive nature of his prior criminal record and the fact that the instant killing occurred as a result of Barry Mitchell believing (initially, at least) that he was coming to the aid of his younger brother, we believe the sentence should be reduced to 20 to 60 years. Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(4).

The conviction of Eddie Mitchell is reversed. The conviction of Barry Mitchell is affirmed as modified.

Reversed in part; affirmed in part as modified.

ENGLISH and LORENZ, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    Thomas W. Watson, Plaintiff-Appellant, v. Southwest Messenger Press, Inc. et al., Defendants-Appellees.
    (No. 56891;
    First District (1st Division)
    June 18, 1973.

      Kreger and Karton, of Chicago, for appellant.
    William Marosco, of Chicago, (Alphonse Cerza, of counsel,) for ap-pellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Thomas W. Watson (plaintiff) brought action for libel against Southwest Messenger Press Inc., a local newspaper and Walter Lysen and Elmer Lysen, two persons associated with it (defendants). The trial court entered summary judgment in favor of defendants. Plaintiff appeals.

In this court, plaintiff contends solely that the trial court erred in entering summary judgment because the pleadings show the existence of a triable issue of fact. Defendants contend that the summary judgment in their favor was properly entered because the plaintiff has failed to support the conclusion that defendants were motivated solely by actual malice. Defendants also urge that the record shows amply that the publications by defendants were true.

Defendants’ motion for summary judgment was supported by affidavits setting forth certain discovery depositions. No counter-affidavits were filed by plaintiff. We will first summarize the allegations of plaintiff’s complaint, including the allegedly libelous newspaper articles, and then the material portions of the discovery depositions.

Plaintiff’s amended complaint alleged that he had a good reputation in the Village of Hickory Hills and that defendants owned, published and circulated a newspaper containing two articles which falsely accused plaintiff of commission of criminal acts of official misconduct. At that time, plaintiff was Mayor of Hickory Hills. The amended complaint further alleged not only that these articles were wholly false and untrue but that they were composed and printed with actual malice; with knowledge that they were false and untrue or with reckless disregard for the truth of falsity thereof.

The first of these articles was printed May 23, 1968. The caption referred to a “ticket scandal” looming over Hickory Hills. It stated that the mayor was severely criticized by a number of residents because he had ordered a “ticket writing spree” so that police had issued 130 tickets to citizens who had parked their cars in front of their homes overnight. This was referred to as a “wholesale ticket writing project.” However, none of the ticketed persons had paid fines but the major had visited all those that had received tickets and promised to void them. A reporter for the paper had been unable to find a single person who had paid a fine. Sometime later the mayor again ordered the issuance of these tickets. Several persons who found tickets on their cars said they had been assured that “Mayor Watson will fix them.” The article reported that several homeowners had protested “the Watson game of Winning Votes.” They were reported as referring to the activities as a “vote getting gimmick” and a “phony issue” and also as stating, “It’s nothing new in river politics.”

The second article was published May 30, 1968. It stated that further developments into the ticket writing spree ordered by the mayor had added more confusions to a muddled situation. Here followed a description of the tickets as appended to various automobiles. It stated that according to reports more than 200 tickets had been issued to people who had parked in front of their own homes. The article concluded: “Police say the wholesale ticket project was ordered by Mayor Watson. So what happened?”

The affidavit of Defendant Elmer Lysen set forth that he had received a number of telephone calls from citizens complaining about tickets issued for overnight parking. He had called the chief of police who told him that the plaintiff had instructed that all cars illegally parked overnight be ticketed and that as many as 130 such tickets may have been issued. Affiant then called the city clerk’s office and was told that there were no records of any tickets issued for overnight parking. He called other people who had previously complained of receiving tickets and they told him that plaintiff had picked up these tickets and told them not to worry. It appears from the depositions of plaintiff and of a city police officer that plaintiff told the chief of police to enforce all ordinances. He had received complaints from residents regarding overnight parking. As a result, plaintiff received many calls from citizens and he called upon people who had received tickets and asked their opinion about the propriety of the ordinance. He concluded that people approved and wanted the ordinance enforced. He picked up several tickets from people he visited. He recommended to the city council that the' first ticket for overnight parking should be considered a warning and the second should be considered valid. No member of the council objected so that this was put into effect. Plaintiff told the police department to continue to issue tickets; and, after an initial period of education, the citations were to be considered valid. A police officer stated in his deposition that the tickets had been issued and that parking on the streets between 2:00 A.M. and 6:00 A.M. was illegal. He did not know how many of the tickets were ever processed to the court stage.

Plaintiff filed objections to the motion for summary judgment alleging that the motion and supporting material contained factual discrepancies and had other defects. Plaintiff did not file counter-affidavits.

Summary judgment procedure in Illinois is established and governed by the provisions of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 57.) The statute provides for the entry of summary judgment where “* * * there is no genuine issue as to any material fact * * ”.” The purpose of this statute is, indeed, salutary. It is “* * * intended to facilitate litigation and to expedite trial procedure * *' (Barkhausen v. Naugher, 395 Ill. 562, 567, 70 N.E.2d 565.) In making this determination, the trial court can and should search the record and the motion should be denied where “* * * the court finds a genuine triable issue of material fact * * (Saghin v. Romash, 122 Ill.App.2d 473, 478, 258 N.E.2d 581.) On the other hand, the converse of the situation is also true in that where there is actually no genuine issue as to any material fact, summary judgment should be granted. (See Gelsumino v. E. W. Bliss Co., 10 Ill.App.3d 604, 607, 295 N.E.2d 110.) As we would expect, affidavits in support of a motion for summary judgment must be strictly construed and must leave no question as to the right of the movant to judgment. (Board of Education v. Green Valley Builders, Inc., 10 Ill.App.3d 235, 237, 293 N.E.2d 183.) Where counter-affidavits are filed, they receive a liberal construction. (American Nat. Bank & Trust Co. v. Lembessis, 116 Ill.App.2d 5, 10, 253 N.E.2d 126.) However, our cases have consistently held that, where a. party fails to deny by an affidavit, he is deemed to have admitted the truth of the material sworn averments made in support of the motion. See Glen View Club v. Becker, 113 Ill.App.2d 127, 136, 251 N.E.2d 778; also Kitzer v. Rice, 90 Ill.App.2d 72, 79, 234 N.E.2d 115.

In the case at bar, even were we to assume that the newspaper articles are libelous per se and, therefore, actionable, we must conclude that these articles are conditionally privileged as a matter of law. There is a strong and necessary rule of law resting upon an ample foundation of state and federal constitutional guarantees of free speech and free press, that reports by a newspaper upon the activities of a municipal government or its officers are privileged, even though false and defamatory, and this privilege can be defeated only by proof that the particular publication was “motivated solely by actual malice.” (See Lulay v. Peoria Journal-Star, Inc., 34 Ill.2d 112, 115, 214 N.E.2d 746 and authorities therein cited.) Cases decided by American courts which support this principle are too numerous to be listed here. One of the most frequently cited authorities upon this precise point is New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710.

In this regard, • we believe this appeal to be governed by the decision of the Supreme Court in Lulay v. Peoria Journal-Star, Inc., 34 Ill.2d 112, 214 N.E.2d 746. There, plaintiff obtained a verdict from a jury with reference to articles which appeared in the defendant newspaper concerning activities of a city health department in plaintiff’s place of business. Defendant had also made a motion for summary judgment which the trial court had denied. The Supreme Court reversed this judgment. The court held that the articles in question were privileged; the privilege could be defeated only by showing that they were motivated solely by actual malice; the burden rested upon plaintiff to prove actual malice and plaintiff had this obligation both upon the motion for summary judgment and at the trial. See 34 Ill.2d at 114, 115, 116.

In the case at bar, there is no showing by plaintiff of any facts which remotely tend to prove the presence of actual malice. On the contrary, it appears from a fair reading of the articles in question and from the material portions of the affidavits and depositions that the articles were written only after an attempt to ascertain the facts and in response to communications made to the defendant newspaper by residents of the city. Since this element of actual malice is entirely lacking in the record, it follows necessarily that the entry of summary judgment in favor of defendants and against plaintiff was proper.

There is another independent ground raised by defendants which is also ample to support and justify the judgment appealed from. Actually, the second of the articles dated May 30, 1968, contains no libelous material whatsoever. It merely refers to a “muddled situation”, recites the language used upon the traffic tickets and says very little else. The first of these articles speaks about “a ticket scandal of sorts”; speaks about the alleged promise of plaintiff to “void” the tickets and then uses the word “fix” with reference to the traffic tickets. As defendants urge, the word “fix” has many dictionary meanings. It could mean the process of repairing, mending or putting in order, or it could mean an arrangement to obtain legal immunity by social influence or even by payment of money. It could possibly be construed as being synonymous with the word “void” which is alsoo used in the article with reference to the tickets.

In a situation of this type, the law requires that we read the article as a whole and that the words used therein be given their natural and obvious meaning. Where the allegedly libelous words are capable of an innocent construction, they must be read in that manner and declared nonactionable as a matter of law. (John v. Tribune Co., 24 Ill.2d 437, 442, 181 N.E.2d 105.) Other recent cases applying this rule of innocent construction in rather similar situations are Conrad v. Logan, 4 Ill.App.3d 981, 283 N.E.2d 54; and Van Tuil v. Carroll, 3 Ill.App.3d 869, 279 N.E.2d 361.

The summary judgment appealed from was, therefore, properly entered.

Judgment affirmed.

EGAN and HALLETT, JJ., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony W. Luster, Defendant-Appellant.
    (No. 57621;
    First District (1st Division)
    June 18, 1973.
    James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and James M. Schreier, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Long, Defendant-Appellant.
    (No. 11510;
    Fourth District
    June 27, 1973.

      Rehearing denied August 1, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Bruce D. Locher, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was found guilty in a jury trial of the offenses of armed robbery, aggravated assault and assault, and judgments of guilty were entered upon the verdicts. A single sentence of not less than 4 nor more than 14 years in the Illinois State Penitentiary was imposed. The defendant and one David Schleyhahn were charged with the instant offenses in connection with an armed robbery of a grocery store in Spring- • field, Illinois in January of 1970. Schleyhahn entered a plea of guilty to the offense of armed robbery and was given a sentence of not less than 2 nor more than 10 years.

A consideration of the various issues assigned as error by the defendant upon this appeal makes necessary a récitation of the facts and circumstances as established by the evidence in this case.

On January 16, 1970, at approximately 9:00 P.M., two men wearing dark ski masks and carrying handguns entered a Kroger store on Second Street near South Grand in Springfield, Illinois. One man remained at the door of the store. He wore a gold jacket, black shoes, and a dark ski mask and was the taller of the two, described in the police report as being 6 foot 2 inches tall and 210 lbs. The shorter man, wearing a green plaid jacket, brown trousers and brown boots, and described in the police report as being 5 foot 11 inches and heavy build, jumped over the “speedy” checkout lane into the managers office. There he ordered the manager (Lewis Clark), the co-manager (Chris Geals), and a cashier (Mary Jane Bretz), to leave the office. He tiren filled a brown paper grocery bag with about $9200 in cash, then left the office and, went out the front door of tire store. After two shots were fired outside, the taller man also left the store.

A meat cutter working in the store at the time of the robbery saw the transaction described above and called the police. It was estimated that the two men were in the store for five minutes. A description of both men and the gun held by the taller man guarding the door was given to the police by several people. The money taken had been initialed by one of the clerks with the letters “M.B.”.

Margarete Chapman, a Kroger employee, saw a man running north across the parking lot as she returned to work at 9:00 P.M. Two people in a passing car — Tom Burk and Nancy McNear — also saw a man run north from the store and at Third and Allen they saw two men get into a car driven by a third person. The couple then drove past the car, described as a maroon Lincoln Continental with license number TP 2930, and saw one man take off his ski mask. They watched the car pass them and then proceed north on Fourth Street, and then returned to the Kroger store to give the information to the store manager and were able to give it directly to police who had then arrived. The police transmitted by radio the accumulated descriptions of the suspects and automobile, and officer Williamson saw a car fitting the description with the reported license number near a house at 740 Yates in Springfield at about 9:35 P.M. The defendant and David Schleyhahn came out of the house and walked toward the car. The defendant was dressed in clothing similar to the description of one of the robbers given to the police. The police arrested the two men and searched them and the car. Schleyhahn had a dark ski mask, a .38 calibre revolver, a brown paper sack, and $78 cash on his person when arrested. Another ski mask was found in the car. No weapon was found on the defendant Long and an unspecified amount of money taken from him was later commingled with the money in a brown paper sack taken from Schleyhahn which totaled $5235. A search of the house at 740 Yates revealed only a $50 bond.

All of the clothing worn by the defendant and Schleyhahn, as well as Schleyhahn’s gun, was held as evidence by the police, and at the trial several store employees identified Schleyhahns gold jacket when it was introduced into evidence against defendant Long and said the defendant’s green plaid CPO jacket was similar to that worn by the shorter of the two robbers. The money recovered by the police was identified by the store employee as the money she had initialed “M.B.” and taken during the robbery.

The defendant called several witnesses to establish an alibi. Bonnie Foster testified that she met Tony Matter a (since deceased) and the defendant at 7:30 P.M. on January 16, 1970 while they were playing pool at a tavern. After the game, all three of them went to the house at 740 Yates where the witness Patricia Smiley lived. Miss Foster and Mrs. Smiley estimate their arrival as about 8:30 or 8:40 P.M., and both testified that they all drank coffee, watched television, and talked until about 9:15 when Mattera and Miss Foster left, leaving the defendant behind with Mrs. Smiley. Mrs. Smiley said that shortly after Mattera and Miss Foster left, David Schleyhahn drove to the house at about 9:20 P.M. Mrs. Smiley testified that it seemed Schleyhahn was nervous, that he and Long talked for about 20 minutes in her kitchen, and she overheard Schleyhahn say he had something for Long which she believed to be money, and that she previously knew that Schleyhahn owed money to the defendant. When the two men left her house, they were immediately arrested according to Mrs. Smiley.

The state witness, officer Estill, testified that when he questioned the witness Smiley between 9:30 and 9:45 P.M. on the day in question, she told them the two men had been at her house only about 30 minutes and that she knew defendant Long but not Schleyhahn.

The defendant, at 5 foot 7 inches and 155 lbs., at 28 years of age, does not precisely match the police description of the shorter robber as being 20 to 25 years old, 5 foot 11 inches, and heavy build, but at the trial, three store employees said the shorter robber was 5 foot, 7, 8 or 9 inches tall, and indicated they gave the same description to the police as given on the witness stand rather than what the police report contained.

Defendant’s counsel at the beginning of its case told the jury that if Schleyhahn were a witness, he would say the defendant was not one • of "the robbers. He called Schleyhahn’s name in court three times without- producing him as a witness. Nine other witnesses were similarly called without being produced at the trial. In his closing statement, the prosecutor pointed out to the jury the reasonableness of the inference to be drawn from the defendant’s failure to produce Schleyhahn — that he would not say that defendant was innocent.

Upon this appeal the defendant contends that he was denied an impartial jury; that trial counsel was incompetent; that the indictment was insufficient with reference to the aggravated assault offense; that he was incorrectly convicted of three offenses arising out of the same incident; that certain remarks in the prosecution’s closing argument were prejudicial; and, finally, that the sentence imposed was disparate with the sentence imposed upon Schleyhahn.

The defendant’s counsel had accepted a Mrs. Van Dyke as a juror without asking if she knew anyone connected with the prosecution. After her examination by the court, she had- said she did not know the assistant state’s attorney representing the state in the case. Upon examination by the state, she said she was a friend of the state’s attorney, and after she had been accepted by defense and prosecution, the defense counsel asked permission to question the juror further and permission was granted for purposes of inquiry in the nature of explanation, but not for purposes of excusing the juror. Defense counsel thereupon undertook further examination of the juror Mrs. Van Dyke, and that examination revealed a social acquaintance with the state’s attorney and the fact that she had worked for him in his political campaigns.

We view the case of People v. Cole, 4 Ill.App.3d 28, 271 N.E.2d 385 (Ill.S.Ct. Docket. No. 44627-June, 1973), as dispositive of this issue. In this case, unlike the facts in Cole, the defendant had not exhausted his peremptory challenges at the time he had questioned Mrs. Van Dyke and had accepted her. Further, under the authority of Cole, it is clear that the nature of the acquaintance and association here established is not such as to disqualify the juror from service.

The second issue assigned is that the defendant’s trial counsel was incompetent and that such representation denied the defendant a fair trial. Upon this voluminous and unusual record, that issue is difficult to resolve. In this case, counsel representing the defendant at trial was counsel of his own choosing. We recognize, however, that the right of the defendant to a fair trial is not diluted by the fact that he chose his own trial counsel as distinguished from having been the recipient of court-appointed counsel. While the cases speak in terms of some distinction between counsel of the defendant’s own choosing and court-appointed counsel, it seems to us that the necessity for showing incompetence is essentially the same in both instances. Incompetence of trial counsel warranting reversal must be of such character as to make the trial a farce. People v. Dean, 31 Ill.2d 214, 201 N.E.2d 450; People v. Bliss, 44 Ill.2d 363, 255 N.E.2d 405.

In this case, the defendant places substantial reliance upon the case of People v. DeSimone, 9 Ill.2d 522; 138 N.E.2d 556. In that case, the defendant’s counsel had told the jury the defense would be insanity, and that the burden would be upon the defendant to prove that defense. The court ultimatly gave the jury a correct statement of the law with reference to the burden of proof. At trial, counsel called many lay witnesses — • supposedly to testify as to the defendant’s insanity; but most in their testimony tended to show sanity and many gave irrelevant testimony. Upon inquiry by the court as to the reason for such conduct on the part of counsel, counsel indicated that he had not talked to most of the witnesses before the trial and did not know what their testimony would be. Several times in DeSimone, counsel advised the court that" he was “stumped” and didn’t know what to do next.

• The facts in this case vary substantially from the facts in DeSimone, In this case, counsel, at trial, was seldom, if ever, at a loss for words. He did not appear to inquire of the court what to do next nor did he appear to be stumped, .but rather he had to be restrained by the court from time to time rather than aided.

Defense counsel in this case engaged in unusual conduct. Such conduct can roughly be divided into instances where there was inept representation, for example, his failure to fully point out to the jury certain discrepancies in the police composite description and to utilize such discrepancy fully in cross-examination. Also, his failure to fully develop the defendant’s offered alibi and allowing the use of the confession of Schleyhahn in such a way as to suggest the defendant was also guilty. The second area of conduct relates to the activity of counsel that suggests that the trial proceedings were nearly reduced to a farce. Such conduct related to the fact that counsel called out the names of witnesses who were not present and who had not been subpoenaed, general harassment of witnesses, persistent and repeated efforts to cross-examine witnesses upon irrelevant and embarrassing personal questions, and numerous nonsensical objections. Incidents of this type of conduct appear frequently in the record of the trial proceedings. Defense counsel often undertook vigorous and irrelevant cross-examination, apparently simply because it was his turn to examine the witness. In one instance, he made a point of complaining that the opposing attorney had available to him more and fresher water than was available to the defense counsel. He did engage in conduct which cannot be defended.

The issue, however, is, did the defendant not receive a fair trial by reason of such conduct? In this case, the record is clear that the trial court constantly exerted every effort to maintain dignity and to protect the interest of the defendant. This effort by the trial court, notwithstanding frequent provocation by defense counsel, kept the trial from being wholly diverted from the question of the defendant’s guilt or innocence and attention being focused upon the activity of counsel. In this case, the evidence of the defendant’s guilt is very strong; indeed, we note that upon this appeal no issue is made as to the insufficiency of the evidence to convict. Under the cited cases, we cannot say that the defendant was deprived of a fair trial by reason of the unusual, and in some instances, almost bizarre conduct of counsel. The trial was not reduced to a farce, and we are not prepared to say that the demonstrated shortcomings of counsel made a difference in the outcome.

The third issue, relating to the sufficiency of the indictment, need not be discussed in any detail in view of our conclusion that the judgment entered upon the verdict as to the offense of aggravated assault must be vacated. In this case, the trial court properly imposed only one sentence. He did, however, enter judgments of convictions upon the jury verdicts of guilty. There is no showing in this record that the offenses of aggravated assault and assault were independently motivated. (See People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24.) Where judgments of convictions are entered upon several verdicts and even though only a single sentence is imposed, the judgment upon the offenses involved which were not independently motivated will be reversed. People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651.

In his opening statement, counsel for the defendant stated that Schleyhahn had been subpoenaed and if called would testify that the defendant was not involved in this offense. While Schleyhahn was not produced as a witness, the defendant did introduce testimony to the effect that Schleyhahn had contacted him only 30 minutes before the arrest and therefore subsequent to the offense. A comment by the prosecutor in closing argument upon the failure to call Schleyhahn and the inference therefrom that if called Schleyhahn’s testimony would not be favorable to the defendant, is assigned as error. Upon this record, however, we are not persuaded that such comment was prejudicial to the defendant.

In People v. Swift, 319 Ill. 359, 150 N.E. 263, the court noted that where the defendant injects into a case his activity with a potential witness during a particular time for purposes of proving his innocence of the crime charged, his failure to produce such witness is a proper subject of comment by the state. See also People v. Williams, 40 Ill.2d 522, 240 N.E.2d 645.

This record does not establish that the imposed sentence is excessive. Neither does it suggest an enhanced penalty for standing trial. Indeed, the trial court emphasized that such was not the case. The defendant Long’s conduct was not the same as that of Schleyhahn and the cited case of People v. Steg, 69 Ill.App.2d 188, 215 N.E.2d 854, is therefore distinguishable on the facts and not here applicable.

The judgment of conviction upon the charge of aggravated assault and assault is reversed. The judgment and sentence imposed upon the offense of armed robbery is affirmed, and this cause is remanded to the circuit court of Sangamon County for the purpose of issuing an amended mittimus.

Affirmed in part, reversed in part, and remanded with directions.

SMITH and SIMKINS, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    Esther Lovejoy, Plaintiff-Appellee, v. National Food Stores, Inc., Defendant-Appellant.
    (No. 71-327;
    Fifth District
    March 8, 1973.

      Rehearing denied July 9, 1973.

      Edward Neville, of East St. Louis, for appellant.
    Keith H. Fitzgerald, of Hallett and Struif, of East Alton, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The plaintiff, Esther Lovejoy, filed a complaint in the Circuit Court of Madison County alleging that she was injured due to the negligence of defendant, National Food Stores, Inc., while she was a customer in one of its stores. The cause was tried before a judge without a jury and the court entered a judgment against the defendant and assessed damages in the sum of $7,250.00. On appeal, defendant alleges that the court erred in failing to grant its motion for a directed verdict, contending that there was no evidence to support the material allegations pertaining to the negligence of defendant and no evidence of causal connection between the alleged damage and the alleged negligence. It also claims that certain medical bills were improperly admitted into evidence.

Many of the facts surrounding the occurrence in question and the resultant damages are in conflict. The plaintiff’s case consisted largely of her own testimony and the testimony of a treating physician together with the admissions of certain employees of defendant made in the course of cross-examination. Plaintiff testified that on the day in question she was shopping in a store owned by defendant and that as she was proceeding down an aisle in that store, some soda bottles which had been stacked along the aisle fell and exploded causing a glass fragment from one of the bottles to cut her and become lodged in her left leg. The only other customer present on the aisle was situated some 15 feet behind her, selecting cereal from a display, and the fallen bottles were within one foot behind plaintiff. She was initially treated by Dr. Katz who discovered no tendon injury and her recovery progressed normally until approximately four weeks later, when, while stepping off a porch, a distance of approximately 18 inches, she ruptured the achilles tendon on the ankle previously injured. Approximately one. week after this incident, plaintiff consulted Dr. Grandia who diagnosed the ruptured tendon and subsequently operated upon her to repair the injury. It was Dr. Grandia’s opinion and testimony that the rupture of the achilles tendon was directly attributable to the injury she received while a customer of defendant.

It was plaintiff”s theory that defendant was negligent in the manner in which it stacked and displayed soda bottles and that defendant knew or should have known that such a display created a hazard to its customers yet failed to take proper or any precautions to eliminate said hazard. To this end, testimony was elicited from defendant’s then store manager, that the soda bottles were customarily displayed by stacking one carton on top of another with a sheet of mylar plastic between the cartons. The plastic sheet rolled up when a carton was removed in order to better display the remaining bottles. Bottles of different size and dimension were kept on these mylar sheets and the display was approximately five cartons high and four cartons deep. It was his testimony that these bottles could be made unstable through handling and that on an ordinary week the average customer count in the store was approximately 10,000 patrons and that the soda was a rapid turnover item. The assistant store manager testified that on a typical Friday, the day of the week on which plaintiff was injured, he would check the soda display three times in order to ascertain that no “hazard” was present and that he would find broken bottles in the aisle with no external evidence as to the cause of the fall and breakage.

Defendant’s version of the incident varies substantially from that of the plaintiff. The store manager and the assistant store manager both testified that immediately after the accident, plaintiff told them that she was injured when a fellow customer in the store knocked the bottles from the shelf. They both also claimed that there was ho cereal display located on the aisle in question at which the alleged other customer could have been shopping. The hospital emergency room records show as a history given by plaintiff, that the injury occurred as a result of the action pf another store customer, and Dr. Katz who treated her in emergency testified that plaintiff told him that another customer knocked the bottles from the shelf. Dr. Katz also testified that when he examined plaintiff, he was clearly able to view the achilles tendon of her left leg and that there was absolutely no injury thereto at that time. The store manager also attempted to refute the plaintiff’s theory of negligence through testimony that he had inspected the display approximately one hour before the accident and immediately thereafter and that on both occasions the display appeared to be stable and in order. It was further brought out that the method employed for displaying soda by defendant was the same as that adopted throughout the industry.

There is no dispute as to the standard of care required of a proprietor toward a business invitee. A proprietor owes its patron the duty of exercising reasonable care for her safety (Mick v. Kroger Co., 37 Ill.2d 148, 224 N.E.2d 859; Fitzsimons v. National Tea Co., 29 Ill.App.2d 306, 173 N.E.2d 534), and this duty is violated when the proprietor negligently allows such conditions to exist on the premises which imperil the safety of the business invitee upon the premises. (Koehler v. Great Atlantic and Pacific Tea Co., 90 Ill.App.2d 458, 232 N.E.2d 780.) An action by such a patron is, however, founded on fault and a storekeeper is not the insurer of his customer’s safety. Olinger v. Great Atlantic and Pacific Tea Co., 21 Ill.2d 469, 473, 173 N.E.2d 443; Mueller v. Kaiser, 74 Ill.App.2d 364, 366, 219 N.E.2d 768.

It is defendant’s claim that there was no violation of its aforementioned duty and that the court should have directed a verdict in its favor at the close of all the evidence. This, of course, it could not do since there was no jury to be directed. The rule is, however, the same with reference to a motion for a directed verdict and for a finding by the court (Continental Illinois Bank & Trust Co. of Chicago v. National Casket Co., Inc., 27 Ill.App.2d 447, 169 N.E.2d 853), which rule requires that a verdict can be directed only where all evidence, viewed most favorably to opponent, so overwhelmingly favors moveant that no contrary verdict based on such evidence could ever stand. (Numberger v. Warren & Van Praag, Inc., 133 Ill.App.2d 843, 272 N.E.2d 234.) If no evidence is introduced tending to prove the allegations of the complaint, or if but a bare scintilla of evidence has been adduced, the court should direct a verdict, (Peters v. Catt, 15 Ill.2d 255), but where a substantial factual dispute is disclosed by the evidence and where an assessment as to credibility of witnesses and an election between conflicting evidence may be decisive, it is erroneous to direct a verdict. (Wolfe v. Whipple, 112 Ill.App.2d 255, 251 N.E.2d 77.) It is with these standards that we must deal in assessing the propriety of the trial court’s ruling.

Defendant asserts two cases which it contends required the trial court to direct a verdict in its favor. In these cases (Kirchoff v. Tzinberg’s Park “N” Shop Food Stores, 7 Ill.App.2d 201 and McKinney v. High-Low Foods, Inc., 104 Ill.App.2d 217), the plaintiffs were injured when a third party knocked bottles from their display causing them to break and cut the plaintiffs. In both cases, the courts held that defendants were entitled to directed verdicts on the grounds that the store owners were not the insurers of the customers safety and that the proximate cause of the injury was due not to the fault of the store owner in failing to provide the plaintiff with reasonably safe conditions in which to carry on their business, but rather, by the intervening act of another patron. In the case now before us, however, there is a substantial conflict in the evidence as to whether a third party was involved in the breakage of the bottles which injured plaintiff. Plaintiff testified that the closest other customer was located some fifteen feet to her rear immediately after the accident. In opposition, defendant’s store manager and assistant store manager both testified that plaintiff told them immediately after the accident that another customer had caused the bottles in question to fall. Defendant also elicited testimony from the physician who treated plaintiff immediately after the accident to the effect that plaintiff stated to him that another customer knocked the bottles off the display and the hospital emergency room records reflect the same history. The nurse who took the emergency room records did not, however, testify as to the source of this history and the doctor admitted that it was likely that he obtained his history from her record, which is in conflict with his prior testimony. Plaintiff emphatically denied the presence of anyone else who could have knocked the bottles off.

In assessing the evidence, we find that in order to justify defendant’s motion on the grounds set forth in the Kirchoff and McKinney cases, it would be necessary to totally disregard the plaintiff’s testimony. This cannot be done as all evidence, both plaintiff’s and defendant’s, must be considered, and plaintiff’s evidence takes the case out of the scope of the cited cases.

Defendant also claims that the judgment was against the manifest weight of the evidence and should therefore be reversed. The issues of both liability and causal connection between injury and damages are not without question. On the issue of liability, the court was not only faced with conflicting evidence as to whether there was an intervening proximate cause through the acts of a third party, but also with conflicting evidence of negligence. Defendant presented testimony that the display was checked one hour before and immediately after the occurrence in question and that it was in order and properly stacked and also that the manner of display was uniformly adopted by the industry as a whole. The plaintiff, on the other hand, presented an in-court demonstration of the display and seemed an admission by defendant’s assistant manager that he made periodic inspections of the display to check for “hazards” that might be present and that he would find bottles broken in the aisle without explanation. The store manager testified that tire bottles could become unstable through handling and that the soda in question was a rapid turn-over item in a store which served approximately 10,000 customers weekly. It was also brought out that the soda was stored in the manner adopted in order to provide a better view of the remaining bottles and that shelves rather than the roll-up plastic sheets would provide more stability. There was, therefore, evidence which, if believed, would establish that defendant failed to use reasonable care by selecting a manner of display which it recognized as creating a hazard to its customers. The evidence and the inferences reasonably to be drawn therefrom is irreconciliably in conflict and it was the function of the trial court to assess its credibility and weigh the result in reaching its verdict, a function with which we will not interfere. In view of this conflict, we cannot find as a matter of law that the trial court decision of negligence on the part of defendant was against the manifest weight of the evidence.

We also find that the trial court decision that the rupture of plaintiff’s achilles tendon was proximately caused by the original injury to plaintiff which occurred some weeks prior thereto was likewise not against the manifest weight of the evidence. An orthopedic specialist, Dr. Grandia, testified that in his opinion it was highly improbable that such a rupture would occur without a previous injury to the damaged tendon and that in view of the fact that plaintiff had had no problem with the ankle prior to the injury complained of he felt that the rupture was as a direct result of the injury she received when cut by the exploding soda bottle. This testimony was contradicted by the physician who originally saw plaintiff who testified that his examination of the tendon revealed no injury. Again, the trial court was required to weight irreconciliable conflicts in evidence and we will not interpose our opinion where there was sufficient credible evidence to justify the decision of the trial court.

Defendant’s final claim is that the court erred in accepting certain exhibits but we find this claim to be without merit and therefore affirm the decision of the trial court.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


author: Mr. JUSTICE CREBS Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Fountain Crum, Plaintiff-Appellee, v. Gulf Oil Corporation, Defendant and Third-Party Plaintiff-Appellant. John Crown, Defendant and Third-Party Plaintiff, v. Curry & Marchman Well Servicing Company, Third-Party Defendant-Appellee.
    (No. 71-200;
    Fifth District
    May 17, 1973.

      Rehearing denied August 6, 1973.

    G. MORAN, P. J., dissenting.
    Jack E. Horsley and John P. Ewart, of Craig & Craig, of Mattoon, and G. Gordon Burroughs and Robert W. Wilson, of Burroughs, Simpson and Wilson, of Edwardsville, for appellant Gulf Oil Corporation.
    Walker & Williams, of Belleville, and Pope & Driemeyer, of East St. Louis, for appellee Curry & Marchman Well Servicing Company.
    Pratt and Mosele, LTD., of East Alton, (Paul L. Pratt, of counsel,) for appellee Fountain Crum.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff, Fountain Crum, was injured when he fell over a flow line owned by Defendant and Third Party Plaintiff, Gulf Oil Corporation, hereafter referred to as Gulf. Crum was employed by the Third Party Defendant, Curry and Marchman Well Servicing Company. Defendant and Third Party Plaintiff, John Crown, was a pumper for Gulf.

In August of 1968 Crown received orders from his supervisor to have Curry and Marchman pull the pipe and tubing out of the well called Smail Number 7. Crown’s job included inspecting Smail Number 7. Gulf wanted to use the pipe and tubing at a different well. Crum was injured while he was walking backwards carrying the pipe. He tripped over a flow line. The flow line was above the ground and grass and weeds had grown up around it making it difficult to see.

Crum brought an action against both Gulf and Crown in the Circuit Court of Madison County. Gulf filed an Answer and brought an action against Curry and Marchman pursuant to an indemnification contract between them.

The jury returned a verdict against Gulf and in favor of Crum for $175,000. The jury found in favor of defendant, Crown, over Plaintiff, Crum. They found for Curry and Marchman over Gulf. The jury found that Cram was not guilty of contributory negligence, that neither Crown nor Curry and Marchman were actively negligent, and that Gulf was actively negligent. Gulf has appealed.

Subsequent to the taking of this appeal by Gulf, we received notice that Gulf and Crum settled their portion of this suit. We. are therefore concerned only with the portion of the appeal as it affects the suit between Gulf and Curry and Marchman on the Third Party Complaint.

Gulf has raised several points on appeal. Among them is the trial court’s alleged failure to adhere to Supreme Court Rule 216, Ill. Rev. Stat., ch. 110A, par. 216.

It appears that on January 23, 1970 Gulf filed a Request for Admission of Facts and Genuineness of Documents directed to Curry and Marchman. (Supreme Court Rule 216, Ill. Rev. Stat., ch. 110A, par. 216.) Admissions were requested on the following:

1. That on April 22, 1965, Curry and Marchman Well Servicing Company entered into a contract with Gulf Oil Corporation, known as Contract No. E-16, entitled “Blanket Contract”.
2. That thereafter, the said Curry and Marchman Well Servicing Company performed services under said blanket contract by executing later purchase orders, as the need for work developed, subject to the terms of the blanket contract.
3. That “Exhibit A” attached hereto is a copy of said blanket contract.
4. That said contract was in full force and effect at the time of the alleged injury to plaintiff herein.

The Third Party Defendant, Curry and Marchman, did not file a denial or an objection or any response to the Request within 28 days or at any other time as provided by Supreme Court Rule 216. (Ill. Rev. Stat., ch. 110A, par. 216.) The record discloses that proper service was made pursuant to Supreme Court Rule 11 (Ill. Rev. Stat., ch. 110A, par. 11), and that service was proved in compliance with Supreme Court Rule 12. (Ill. Rev. Stat., ch. 110A, par. 12.) During the trial the attorneys for Curry and Marchman denied that they had received copies of tire request and moved to deny all matters set forth in the request. Gulf objected but the trial court allowed Curry and Marchman s motion. This was error. In Bernier v. Schaefer, 11 Ill.2d 525, 529, the court said: “If the proper giving of the notice can now be frustrated by the mere allegation of the defendant that he did not receive it, then the giving of notice by mail cannot be relied upon even though the rules specify such a method.” Therefore it was error for the trial court to allow Curry to deny the request after they had failed to respond at the proper time.

Supreme Court Rule 216 (Ill. Rev. Stat., ch. 110A, par. 216), provides that failure to deny or object to a Request to Admit Facts and Genuineness of Documents within 28 days after service thereof results in the admission of such facts or genuineness of documents. In City of Champaign v. Roseman, 15 Ill.2d 363, the Supreme Court held that under Rule 18 (now 216) failure to deny or object to the Request within 10 (now 28) days constituted an admission of the factual allegations. This decision "was followed in Iversen v. Iversen, 28 Ill.App.2d 45. Gulf maintains that the error committed at trial prejudiced its case by depriving it of a crucial admission of facts for which it did not have adequate time to obtain substitute proof. We must agree, notwithstanding the fact that Curry points out that there never was any admission that at the time the plaintiff’s accident occurred the work being done was pursuant to the contract.

A further error occurred in regard to the form of verdicts submitted to the jury. The third party complaint consisted of two counts. The first alleged that Curry and Marchman were to indemnify Gulf and Crown, if they were found liable for Crum’s injuries, by virtue of the indemnification contract. The second count of the third party complaint alleged that any liability to the plaintiff would be as a result of active, primary, and direct negligence on the part of Curry and Marchman as against passive, indirect, and technical negligence on the part of Gulf and Crown, and that Gulf and Crown would be entitled to indemnification on this basis.

Gulf submitted verdict form providing for separated verdicts on Gulf’s alternative theories of recovery according to the two counts of the third party complaint. These were refused. The third party defendant submitted verdict forms which simply provided for a verdict in favor of either the third party plaintiffs or the third party defendant. These forms did not separate the counts of the third party complaint and were given over objection.

There were two issues raised in the third party complaint. There was the question of active and passive negligence and the question of the indemnification contract. Gulf had a right to have its alternative theories submitted to the jury.

We therefore reverse and remand for a new trial that part of the appeal which involves the Third Party Complaint as it affects Gulf and Curry and M archman.

Reversed in part.

EBERSPACHER, J., concurs.

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting:

Although Gulf states that the erroneous ruling by the trial court allowing the third party defendant to deny the request for admission at trial was error, Gulf does not state how it was damaged therein. All it says is that “this erroneous ruling by the trial judge greatly prejudiced Gulf because it was suddenly deprived of crucial and important admissions of fact for which it had inadequate time to obtain substitute proof.” In its brief Gulf did not delineate what specifically Curry and Marchman were permitted to deny.

First, counsel for third party defendant asked to deny that there was legal consideration for the contract. I think he could have argued this anyway, even though the contract was taken as admitted. Second, he denied that the work being done by Curry fell within the purview of the contract. This, too, would not have been admitted even if he had admitted the request in question, because the contract described the work to be performed by third party defendant as well-servicing and the issue of whether or not the third party defendant was engaged in well-servicing was hotly disputed at the trial.

However, assuming that the admissions did cover these denials, I still believe the trial court was well within its discretion when it allowed the third party defendant to deny the admissions at the trial. These denials were made prior to the time that third party plaintiff put on any evidence. Third party plaintiff could have asked for a continuance, but he did not do so. This situation is analogous to allowing a party to amend his pleadings during trial. In such circumstances, it is generally held that the trial court may, in its discretion, when it would not involve unfair, surprise and prejudice to the opposing party. The defendant could have asked for a continuance, could have asked for the cases to be severed, but did not do so.

With reference to the error claimed in the form of verdict submitted to the jury by the trial judge, third party plaintiff does not in this court arid did not in the trial court show how it was harmed by the forms of verdict given. In fact, there was not even a specific objection made to them. In addition, the holding of the majority on this point is contrary to Section 68(3) of the Civil Practice Act. (See the Joint Committee Comments to this Section.)


author: Mr. JUSTICE SEIDENFELD

text:
    Elizabeth Petrous, Plaintiff-Appellee, v. Richard Roberts, Defendant-Appellant.
    (No. 72-105;
    Second District
    July 16, 1973.

      Franks & Wylde, of Rockford, for appellant.
    William J. Scott, Attorney General, of Chicago, (Donald S. Carnow, Assistant Attorney General, of counsel,) for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

We are called upon to determine whether the Pedrick rule is applicable to a case brought under the Paternity Act (Ill. Rev. Stat. 1971, ch. 106¾, par. 51, et seq.) and, if so, whether the trial court correctly entered a judgment notwithstanding the verdict in favor of plaintiff after a jury had found defendant not to be the father of plaintiffs child.

The plaintiff, Elizabeth Petrous, testified that during the period of conception she was with defendant while he was stationed at Ft. Bliss, Texas, that she had sexual relations with him, and with no others, and became pregnant by him; and that defendant admitted to her that he was the father of the child. She testified also to prior sexual relations over a period of time in Rockford, Illinois before defendant left for the service, to his promise of marriage, to his gift to her of wedding rings, and to his sending for her to come to Texas.

The testimony of the defendant corroborated that of the plaintiff as to their sexual relations in Rockford. He said that he had told her not to come to Texas (although he conceded that he had previously written that he wanted her there when he got settled). He denied that he had asked the plaintiff to marry him, saying he bought her the rings “to keep her from running around, or something like that.” Defendant admitted that he had intercourse with the plaintiff over a period of time, including the period of conception, and that he used protection only part of the time. In answer to the question, “To your knowledge, as far as you know, * * * was that child fathered by you?”, he said, “I can t deny that it’s not mine — I can’t deny that. It is a possibility.” He later stated, “I admit that I had relations, but I believe there were other relations involved in it too. I don’t believe I am the only one, no.”

Defendant urges that the standard for the entry of a judgment n.o.v. established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, should not be extended to paternity cases because of the uniqueness of the action. He alludes particularly to the difficulty of proving that defendant is not the father of the child; and to the specific direction in the Paternity Act that in the trial of the issue whether the person charged is the father of the child, the credibility of the mother and the defendant shall be left to the court or jury as the case may be. Ill. Rev. Stat. 1971, ch. 106¾, par. 56.

The provisions of the Civil Practice Act, however, apply to paternity actions in the absence of specific provision in the Paternity Act. (Ill. Rev. Stat. 1971, ch. 106¾, par. 64. See Alsen v. Stoner (1969), 114 Ill.App.2d 216, 220.) The entry of judgments n.o.v. is provided for in section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 68.1) — and no section of the Paternity Act specifically provides otherwise.

We are not persuaded that the Pedrick test should not apply to paternity actions because the rule was stated in a negligence case. The rationale of the opinion applies to the general problem of promoting the efficient administration of justice where no substantial factual disputes exist, in order to avoid unnecessary retrials in which the verdict cannot be factually sustained even though there is “some evidence” to sustain it. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 504.) This problem is not unique to negligence cases.

We further cannot conclude that the application of the Pedrick rule in paternity cases improperly impairs the defendant’s right to have the jury determine the issue of paternity. A somewhat similar argument was rejected in Pedrick (pages 504, 505, 511).

The end result of defendant’s argument that judgment should not be entered contrary to the jury verdict in favor of a defendant in a paternity suit would be to deny review of the findings of the trier of fact, either the jury or the court alone, in such cases. This would be contrary to the numerous authorities which have reviewed findings of the court or jury in a paternity case to determine whether the verdict or finding has support in the evidence. See Ford v. Narup (1962), 38 Ill.App.2d 245, 248; Cornmesser v. Laken (1963), 43 Ill.App.2d 324, 331; People ex rel. Dalman v. O’Malley (1963), 43 Ill.App.2d 95; People v. Rimicci (1968), 97 Ill.App.2d 470, 476; Presley v. Moore (1971), 4 Ill.App.3d 76.

Defendant also claims that the jury was not required to give credence to plaintiffs testimony and that without her testimony, since she was the sole witness for the plaintiff, it cannot be said that, viewing the evidence in its aspect most favorable to defendant, no verdict for defendant can stand in terms of the Pedrick rule. The argument falls under the circumstances of this case since the testimony of the defendant corroborates the essential elements of plaintiffs cause of action.

Defendant admits having intercourse with plaintiff several times during the period of conception, often without the use of protection devices. He admits that he is possibly the father of plaintiff’s child. While he states a belief that plaintiff had relations with others plaintiff denies this, and there is no evidence substantiating this assertion. The evidence, viewed in its aspect most favorable to defendant, so overwhelmingly favors plaintiff no verdict for defendant could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.

We therefore affirm the judgment below.

Affirmed.

GUILD, P. J., and T. MORAN, J., concur.