author: MR. JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph B. McClure, Defendant-Appellant.
    Gen. No. 67-96.
    Second District.
    March 28, 1968.
    Rehearing denied April 24, 1968.

      Anna R. Lavin and Samuel V. P. Banks, of Chicago, for appellant.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly, Assistant State’s Attorney, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Defendant was tried and convicted of burglary under section 19-1 (a) of the Criminal Code (Ill Rev Stats 1965, c 38, § 19-1 (a)). He was sentenced to a term of not less than two nor more than ten years in the state penitentiary. He appeals from that judgment charging that there was a fatal variance between the allegations of the information and the proofs, that irrelevant and immaterial evidence was admitted and that there was error committed in connection with the instructions presented to the jury.

The defendant was charged with the offense of burglary in that he, “. . . without authority, knowingly entered into a building owned by Schuham’s Ace Hardware Store, Inc., a corporation, located at 479 Roosevelt Road, Glen Ellyn, Illinois, with intent to commit therein a theft . . .” The evidence was that the building in question was owned by one Pasquale Mazza. Mr. Mazza occupied a portion of the building and leased the remainder of the building to Schuham’s Ace Hardware Store, Inc., referred to hereinafter as Schuham.

The facts of the case indicate that a burglar alarm, connected to the local police station from the building in question, sounded at three minutes past midnight on the evening of December 21-22, 1965. An alert was radio dispatched and received by a police officer in a squad car about 150 feet from the parking lot of Schuham’s store. The officer entered the parking lot and, hearing sounds from the roof, climbed the wall of the building to see a person, whom he identified as the defendant, running across the roof of the building. The police officer pursued the person and fired a shot at him. The person jumped from the roof but, by this time, other officers had arrived and took up the chase. A second officer ran across the street, where he saw the person (whom he also identified as the defendant) and fired a shotgun at the person. The chase continued, with the officers sometimes losing track of the fleeing party and attempting to follow his tracks in the snow and wet ground. The party was next sighted in a parking lot a block and one-half west of the store and was finally apprehended in a field about a quarter of a mile east of the store.

An examination of the building indicated that a hole had been cut through the roof of the building and into the ceiling of the hardware store section of the building. A safe in the hardware store had been opened and a cash box from the safe, containing some $600 in money, was found on the roof.

The first question presented to us is whether there was a fatal variance between the charge and proof of ownership of the building. The statute in question provides :

“(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, house trailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law approved July 11, 1957, as amended, railroad car, or any part thereof, with intent to commit therein a felony or theft. . . .”

It has been established by case law that ownership is an essential element of a burglary charge and must be proved by competent evidence. In People v. Picard, 284 Ill 588, 120 NE 546 (1918), the court said, at page 590, as follows:

“An indictment or information must allege all the facts necessary to constitute the crime with which the defendant is charged, and if it does not set forth such facts with sufficient certainty it will not support a conviction. (People v. Stoyan, 280 Ill 300.) Except in so far as the rule may be changed by statute, an indictment for burglary, whether it comes under the common law or under a statute, must allege the ownership of the building broken or entered, if it is known, or it will be fatally defective. (6 Cyc 209.) This indictment contains no allegation of the ownership of the freight car alleged to have been entered or broken into. The allegation that the car was in the possession of and being used by the Illinois Central Railroad Company is not a sufficient allegation of ownership. Had the indictment expressly alleged that the car was owned by the Illinois Central Railroad Company, proof that it was in the possession of that corporation would have been sufficient prima facie to sustain the allegation of ownership. In an indictment for burglary the ownership of the building entered may be laid in the occupant, whose possession is rightful as against the burglar. (Smith v. People, 115 Ill 17.) It is not sufficient, however, in the indictment to merely plead the evidence of ownership, but the ownership must be specifically alleged.”

However, see, People v. Peck, 29 Ill2d 480, 482-484, 194 NE2d 245 (1963).

In People v. Smith, 341 Ill 649, 173 NE 814 (1930), the defendants were charged with burglary of the dwelling house of Chester Olenec and the larceny of his property. At the trial one Nellie Olenec testified that she resided at the property in question with her husband without naming him.

The Supreme Court, at page 652, pointed out that the object in naming the person injured in a criminal prosecution is identification so that the accused cannot be again tried for the same offense, and where the record shows that the identity of the person injured is completely established beyond a reasonable doubt, that will be sufficient though proof of the Christian name may not be made, as where identity is shown by proof of the deceased’s occupation and he was the only one of that occupation in the town or where the injured person testified, giving for his Christian name initials or abbreviations, but the circumstances leave no doubt of his identity as the injured person. There was no proof offered here that the husband of the witness, Nellie Olenec, was Chester Olenec or that the things stolen were the property of Chester Olenec and, for that reason, the judgment was reversed and remanded.

A virtually identical situation occurred in People v. Walker, 7 Ill2d 158, 130 NE2d 182 (1955), where the defendants were charged with breaking and entering the dwelling house of Anthony Wright with intent to steal the personal goods of Anthony and Ophelia S. Wright. The only evidence bearing on the allegations was from a witness who identified herself as Mrs. Octavia S. Wright. She testified to her apartment having been burglarized and certain items belonging to her husband as having been taken. Again, the witness did not name her husband and as a result, neither the names of Anthony Wright or Ophelia Wright appear in the testimony. The court again reversed and remanded the cause and, in its opinion, pointed out that the purpose served by alleging the name of the person or property injured is to enable the accused to plead to a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. The court further pointed out that, since the requirement is founded upon the protection of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and not a mere technical rule, citing People v. O’Brien, 404 Ill 236, 88 NE2d 486 (1949).

In People v. O’Brien, supra, the charge was malicious mischief of a dwelling house owned and occupied by one Charles Stransky, who testified that he lived at the address in question, described the property as a one-story building with two stores and he stated that he lived in back of one of the stores in three rooms composed of a kitchen, two bedrooms and a hall. There was no proof offered as to ownership of the property or of the two storerooms or the three rooms occupied by Stransky as living quarters. The Supreme Court held that the state failed to sustain the burden of proof as to ownership. Because of a failure to prove any type of ownership or right of possession by Stransky, the judgment was reversed.

We feel that the cases cited above all tend to support the position taken by the defendant here.

On the other hand, in People v. Kreisler, 381 Ill 453, 45 NE2d 653 (1942), the charge was burglary of a store building of Leman Philbrook and Julius Voelker, partners, doing business as Philbrook and Voelker, with intent to steal property of the partnership. The proof was that the building was owned by Philbrook and his wife and that they received rent from the partnership funds of Philbrook and Voelker. In affirming the judgment and finding no fatal variance, the Supreme Court said, at page 457:

“In burglary, the ownership of the building entered may be laid in the occupant whose possession is rightful as against the burglar. (People v. Callahan, 324 Ill 101; People v. McCabe, 306 id. 183; People v. Fitzgerald, 297 id. 264; Flanagan v. People, 214 id. 170; Smith v. People, 115 id. 17.) Philbrook and Voelker were in possession of the men’s clothing store burglarized and, as partners, they were the owners of the property stolen. Their special ownership or interest in the property burglarized was sufficient to prove ownership as against defendants. The contention that the variance between the indictment and the proof was fatal, it follows necessarily, cannot be sustained.”

In People v. Stewart, 23 Ill2d 161, 166-168, 177 NE2d 237 (1961), the charge was burglary of a building “then and there occupied and in the possession of Golden Cream Dairy Inc., a Corporation, . . .” Defendant contended that the indictment was fatally defective in that there was no allegation as to the ownership of the building. The Supreme Court in denying this contention referred to an opinion by Justice Burch of the Supreme Court of Kansas in State v. Toliver, 109 Kan 660, 202 P 99; 20 ALR 502, 507, wherein it was pointed out that the purposes of pleading ownership is to preserve the defense of double jeopardy, to show that the building was not the property of the accused and, to thereby negate his right to enter it. The court went on to state that an allegation of ownership may be established, not by proof of ownership, but by proof of occupancy and possession, and the requirement that ownership must be alleged has become an empty formality. The premises involved are effectively identified and the rights of the accused are fully protected by an indictment that charges the unlawful entry of the building in the possession of another and such indictment is sufficient.

In People v. Figgers, 23 Ill2d 516, 519, 179 NE2d 626 (1962), the indictment was for breaking and entry of the “factory-office” of the Western Medical Corporation with intent to steal its property. The proofs were that Western Medical owned and occupied the building but that a portion of the building was occupied by Xttrium Corporation and that the property taken was the property of Xttrium. It was also established that Xttrium was a subsidiary of Western Medical and that the physical offices of the two corporations were on the same floor and only partially separated by a partition. The court held that this did not constitute a fatal variance and pointed out that immaterial matters, or matters which may be omitted from an indictment without rendering it insufficient or doing damage to the material averments, may be regarded as surplusage, citing People v. Osborne, 278 Ill 104, 115 NE 890; and People v. Moore, 368 Ill 455, 14 NE2d 494.

In People v. Foster, 30 Ill2d 106, 108, 195 NE2d 700 (1964), the indictment charging burglary alleged that defendants broke into the dwelling house of Wilse Nickerson with intent to steal his personal property. Nicker-son testified he lived in the downstairs apartment and stored certain of his property in the basement. Against the defendant’s contention that the proof showed that Nickerson was a tenant rather than an owner and that the evidence was insufficient to establish the ownership of the building the Supreme Court held that, in burglary prosecutions, proof of occupancy and possession is sufficient and it is unnecessary to allege or prove the legal ownership of the property.

When we examine the present case in light of the more recent decisions of the Supreme Court and in light of the basic reasons for the existence of the rules to make the protection of the defense against double jeopardy and the requirement of proving that the defendant had entered someplace where he had no right to be, we feel that the variance in this case is not fatal and the conviction should not be subject to reversal on this basis. The entry was made into a store property occupied by Schuham pursuant to a lease from Mazza. Insofar as the defendant is concerned, Schuham had all indicia of occupancy and right to possession. The charge is sufficient to negate any right on the part of the defendant to enter the property by making a hole in the roof and ceiling of the hardware store premises and there can be no doubt that the pleading is sufficiently specific to preclude the defendant from running the risk of double jeopardy.

During the trial of the case, testimony was offered that, when an investigation of the store was made, a large safe was found broken open. Also found was money in front of the safe on the floor and a two-pound hammer and a punch. These tools were apparently new tools and were similar to many others in the stock of the hardware store. Defendant contends that error was committed in admitting these exhibits and submitting them to the jury. We find no merit in this contention. These particular items were found on the floor directly in front of the safe. They were likely used in the opening of the safe. They were properly identified and their possession and condition until the date of the trial was established. We feel they were properly admitted as circumstantial evidence.

Finally, error is urged with respect to the instructions. The court gave an instruction over the objection of the defendant as follows:

“You are instructed that under the laws of this State, a person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the Statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.”

The defendant charges error on the basis that the foregoing instruction pertains to implied or presumptive intent and that in the offense of burglary specific intent is an essential element of the offense. The instruction is taken verbatim from section 4-4, chapter 38, Ill Rev Stats 1965, and was proper. The instruction does not create a presumptive intent but merely defines a word used in the statute and in the information pertaining to the alleged crime.

The defendant also urges error in the failure of the court to give the following instruction:

“You are instructed that matters of fact, if any, which are left uncertain by the evidence, cannot be made certain to the prejudice of the defendant by inference. In the absence of evidence, no inference can be drawn by the jury against the defendant, but on the contrary, all the inferences and presumptions consistent with the facts proved are to be drawn and indulged in favor of innocence.”

The instruction properly stated the law. People v. Bradley, 375 Ill 182, 30 NE2d 636 (1940); People v. Ibom, 25 Ill2d 585, 592, 185 NE2d 690 (1962).

The abstract does not contain all of the instructions so we have referred to the original record. We note that the State tendered 12 instructions, all of which were given. Among these was an instruction, No. 7, on the presumption of innocence and advising the jury that the State has the burden of establishing, beyond a reasonable doubt, the guilt of the defendant.

The defendant tendered 17 instructions of which eight were given, six refused and three withdrawn. Among the instructions tendered by the defendant and given was another instruction on the presumption of innocence, one on the burden of proof, an instruction prohibiting conviction on a probability or suspicion of guilt alone and also an instruction with reference to the necessity of proving the identity of the defendant beyond a reasonable doubt.

We do not believe that under these circumstances prejudicial error was committed in refusing to give the defendant’s instruction hereto referred to.

Judgment affirmed.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ABRAHAMSON

license: Public Domain

text:
    Paul A. Lundahl and Minnie Lundahl, Plaintiffs-Appellants, v. Rockford Memorial Hospital Association, etc., and Dr. C. R. Paynter, Defendants-Appellees.
    Gen. No. 67-110.
    Second District.
    March 28, 1968.

      Laveme E. Anderson, of Rockford, and Dario A. Garibaldi, of Flossmoor, for appellants.
    Welsh, Welsh, Holmstrom and Hyzer, and Maynard, Maynard and Brassfield, of Rockford, for appellees.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiffs brought suit in the Circuit Court of Winnebago County against Rockford Memorial Hospital Association and Dr. C. R. Paynter for injuries allegedly suffered by the plaintiff, Paul A. Lundahl, as a result of the defendants’ negligence. At the close of the plaintiffs’ case, the trial court, on the motion of the defendants, directed a verdict in their favor and this appeal resulted.

For years our courts have held that a motion to direct a verdict for the defendant should be allowed where the evidence, when considered in its aspects most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, totally fails to prove one or more essential elements of the case. Lindroth v. Walgreen Co., 407 Ill 121, 130, 94 NE2d 847; LaSalle Nat. Bank v. Feldman, 78 Ill App2d 363, 370, 223 NE2d 180; Larson v. Harris, 77 Ill App2d 430, 434, 222 NE2d 566.

Mr. Lundahl first consulted Dr. Paynter on October 31, 1961, in regard to pain in his lower back. Dr. Paynter observed that he was apprehensive and nervous. He prescribed medication and arranged for a program of physiotherapy for his back at Rockford Hospital. On November 4, Lundahl again visited Dr. Paynter’s office and related that his back “felt better” although he was still nervous. On November 7, Lundahl telephoned Dr. Paynter and informed him that he had had hiccoughs for several days and was in considerable discomfort. Dr. Paynter visited Lundahl at his home around 7:00 or 8:00 p. m. that evening and recommended immediate hospitalization for a definitive examination. Lundahl followed the recommendation and was admitted into Rockford Hospital around 12:50 a. m. Dr. Paynter arrived at the hospital shortly thereafter and Lundahl was given various medications and treatment in an effort to relieve his hiccoughs. Dr. Paynter also recommended that X rays of the stomach be taken to aid his search for the source of the problem. The Lundahls agreed that X rays would be helpful.

At 7:00 a. m. on November 8, Lundahl was taken to the X-ray department of the hospital and at the direction of a nurse, drank a container of barium sulphate and had the X rays taken. At 9:30 a. m., Dr. Paynter visited Lundahl in his room and Lundahl complained that he was “bound up, constipated.” Dr. Paynter told him “Don’t worry about it. You will come out all right after a while.” Lundahl made several unsuccessful attempts to evacuate his bowels during that day and at 7:00 p. m. again advised his doctor that he was constipated and was told “Don’t get excited.”

At around 8:00 p. m., Lundahl again attempted a movement, “pushed pretty good” and experienced a sudden sharp pain that felt “like something came loose.” Dr. Paynter prescribed an enema on the morning of November 9.

On the evening of November 9, Dr. Paynter observed that Lundahl had two swollen masses in the area outside his anus which he diagnosed as thrombosed hemorrhoids. On November 10, Dr. Paynter consulted with a Dr. Pemberton, a specialist in rectal diseases, who confirmed the diagnosis and found a prolapse or slipping down of the rectum. Dr. Pemberton performed a hemorrhoidectomy on November 14. After a prolonged and apparently painful convalescence, Lundahl eventually recovered.

The plaintiffs contend that the evidence thus presented tended to prove their allegations that Dr. Paynter had been negligent in that he knew Lundahl was in a state of extreme nervousness and either knew or should have known that this condition itself could cause constipation. Under these circumstances, they urge, it was negligence on his part to prescribe barium sulphate which is well known to be an insoluble, indigestible substance, without a prior determination of constipation or some artifice to aid immediate evacuation; and that this negligence was compounded by Dr. Paynter’s failure to prescribe relief even after Lundahl complained of constipation on November 8 and by his failure to supervise or consult with the nurses or to disclose to Lundahl the possible dangers of the use of barium. The plaintiffs argue that as the result of this negligence, Lundahl’s rectum became impacted with fecal matter that directly caused the prolapse.

Ordinarily, it is necessary for a plaintiff in a malpractice action to establish by expert testimony that the physician was unskillful and/or negligent in his treatment and that the injuries suffered by the plaintiff were a result of that want of skill or negligence. Piacentini v. Bonnefil, 69 Ill App2d 433, 440, 217 NE2d 507; Graham v. St. Luke’s Hospital, 46 Ill App2d 147, 156, 196 NE2d 355.

An exception to that rule has been established in cases of so-called “common knowledge” or “gross negligence” where the physician’s conduct is so palpably negligent or the treatment is so common that a layman could readily appraise it. Scardina v. Colletti, 63 Ill App2d 481, 488, 211 NE2d 762. We do not feel that this case falls within the exception.

Dr. Paynter and Dr. Pemberton were both called to testify under section 60 of the Civil Practice Act. They agreed that barium sulphate is an indigestible, relatively insoluble substance commonly used in X raying the digestive tract. Dr. Pemberton stated that it was not usual to aid a patient to evacuate barium except in the minority of cases where it is not passed after twenty-four hours and that Dr. Paynter’s procedure was the usual and customary one.

We would agree with the plaintiffs that the fact that the treatment given was “usual” or “customary” would not, of itself, preclude the possibility of either negligence or want of skill. It is entirely possible, as pointed out by the Supreme Court in the case of Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 331, 211 NE2d 253, that what is the usual or customary procedure might itself be negligence. However, there was no evidence introduced, expert or otherwise, that Dr. Paynter’s conduct was either unskillful or negligent and there was evidence that it was the usual course followed in an X ray of the stomach and digestive tract.

Likewise, there was a complete absence of proof that the thrombosed hemorrhoids and prolapse of the rectum were a result of the barium. Dr. Pemberton found barium in Lundahl’s stool on November 12 but he did not state that the barium had caused either the prolapse hemorrhoidal condition or the constipation. That determination would be a technical one and beyond the scope of a jury to make without the guide of expert testimony.

The plaintiffs’ case against the hospital is based on their contention that the hospital was negligent in not communicating Mr. Lundahl’s complaints of constipation to Dr. Paynter; by its failure to require consultation between Dr. Paynter and the members of the hospital staff; and by its failure to note Lundahl’s complaints on his medical reports and progress charts.

The plaintiffs’ brief states that Mr. Lundahl, during November 8, made numerous complaints to the nurses and other employees of the hospital of his constipation and extreme discomfort but to no avail. However, a careful reading of the record indicates that the purported conversations were not allowed as evidence against the hospital by the trial court. Mr. Lundahl was permitted to testify that he told Dr. Paynter that he had complained to the nurses of his condition but that testimony was properly excluded from his case against the hospital since no attempt was made to lay a proper foundation for its admission. No effort was made to establish when the complaints were made, to whom they were made or who was present at the time. The record is thus devoid of any evidence that the hospital was aware of Mr. Lundahl’s constipation.

The plaintiffs cite the Darling case (ibid.) in support of their contention that the hospital was negligent in its failure to require consultation between Dr. Paynter and the members of its staff. In the Darling case, however, the treating physician was an employee placed by the hospital on emergency duty and subject to its supervision. Dr. Paynter was not employed by the hospital, was not an agent of it and not subject to its supervision. The decision to give a laxative or an enema is a medical question, according to the testimony of Dr. Paynter and Dr. Pemberton, and was entirely within the discretion of the treating physician, not the hospital.

Since the medical reports and progress charts of the hospital are not included in the record, we are unable to consider that point raised by the plaintiffs.

We are in agreement with the trial court that the plaintiffs failed to introduce any proof to substantiate several essential elements in their case against both defendants and, therefore, affirm the judgment rendered.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    Guaranty Bank and Trust Company, as Trustee Under Trust Number 10491, Plaintiff-Appellant, v. Village of Lombard, a Municipal Corporation in the State of Illinois, Defendant-Appellee.
    Gen. No. 67-131.
    Second District.
    March 28, 1968.

      Haft, Shapiro and Haft, of Chicago, for appellant.
    Jack E. Bowers, of Downers Grove, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an action whereby the plaintiff-appellant, Guaranty Bank and Trust Company, as Trustee, prayed for a declaratory judgment that the zoning ordinance number 842 of the Village of Lombard, defendant-appellee, is unconstitutional and void in its application to the plaintiff’s property; and that the defendant, its officers, agents and employees, be restrained from enforcing any restrictions against the property presently zoned as R-2 Single-Family Residence District, except those restrictions set forth under R-4 General Residence District, which included multiple-family dwellings, single-family attached, or semiattached dwellings, and two-family detached dwellings. Judgment was entered for the defendant and this appeal followed.

The plaintiff proposes to construct a multi-unit development on the land in question, which is approximately 1,800 feet in length extending in an easterly-westerly direction, 300 feet deep, containing 13.7 acres, and located in the north central portion of the defendant Village. The property is three blocks south of North Avenue— Route 64. Its northerly boundary is Sunset Avenue; its east line is 173.6 feet west of Grace Street; its west line is 244.9 feet west of Garfield Street, and its south boundary is 325.64 feet south of Sunset Avenue.

The subject tract is completely surrounded by property zoned for and improved with single-family residences, except that only one residence is located on the property south of Sunset Avenue, west of Grace Street and east of the subject property.

Certain nonresidential uses do exist in the area: a school is located two blocks south and one block west of the subject tract; a church one-half block west thereof; a commercial building one block north on the northeast corner of Goebel Drive and Main Street; a gasoline service station three blocks north on the southeast corner of North Avenue and Main Street; and the north side of North Avenue is zoned for industrial purposes and its south side — east of Grace Street — is zoned for business developments and for single-family institutional uses.

The property is a part of a platted subdivision known as Lombard Lilac Hills. It is intersected from east to west by the following north-south streets, as shown on the plat: Lombard Avenue, Stewart Avenue, Craig Place, Martha Street and Garfield Street. The plat indicates that a cul-de-sac for turning purposes is located at the southern boundary of the subject tract in both Lombard and Stewart Avenues. All of said streets extend into Sunset Avenue and certain of them proceed northward. The plaintiff’s witnesses stated that the adoption of the proposed plan would require the vacation of the existing streets in the subject property. The evidence failed to establish that the property could not be sold for single-family residential purposes.

The plaintiff requested the Zoning Board of Appeals and the authorities of the defendant Village to rezone the subject property to R-4. However, the plaintiff submitted a specific plan to the trial court. It consisted of thirty-three detached or semiattached buildings which would contain one hundred fifty, two-bedroom units. Within each of the clusters of buildings, large front yards were provided with landscape features such as pools, terraces and appropriate shrubbery.

The plan also contemplated that each of the five platted streets above named would cul-de-sac and end in front of and adjacent to a cluster of buildings located about 150 feet south of Sunset Avenue; and that the platted street area north of the cul-de-sacs would be used for parking purposes for such buildings, and for delivery, garbage and other services.

The testimony indicated that the water and sewer lines were in the platted streets in question. One of the plaintiff’s witnesses testified that the mayor of the defendant Village indicated that the village would vacate the necessary streets for the plan. However, the evidence does not show that any action was taken by the village. The testimony was conflicting as to whether such plan would depreciate the value of the immediate surrounding residences.

Expert witnesses testified for both parties litigant with reference to the highest and best use of the property and relative to its value for single-family residential use— R-2, and multiple-family use — R-4. The plaintiff’s witnesses were of the opinion that the highest and best use of the property was for multiple-family use and the defendant’s witnesses opined that such use was for single-family residences. All witnesses testified in general that the value of the property for multi-family purposes was $300,000, while the value for single-family residential use would be from $125,000 to $199,750.

The plaintiff urges that there is no evidence that the Village ordinance as it applies to its property bears any reasonable relation to the public health, safety, morals, comfort, or general welfare of the community; that the economic hardship imposed upon it is apparent, while the gain or detriment to nearby homeowners is uncertain; and that the invasion of plaintiff’s property rights under the police power is unreasonable, confiscatory and invalid. The plaintiff also suggests that the court had the right to hold the zoning ordinance valid, but decree a variance so that the plaintiff could proceed with its development without village interference; and that the overwhelming weight of plaintiff’s testimony required the court to enter a decree in its favor.

The defendant contends that zoning ordinances are presumed to be valid and a person attacking their validity has the burden of proving them to be arbitrary and unreasonable; and that where there is a legitimate dispute as to the desirability of a zoning classification, courts will not interfere to substitute their judgment for that of the duly constituted legislative body. The defendant further urges that the fact that there would be a substantial increase in value in plaintiff’s property if relief were granted, is not determinative of the issue; and that the most important of all the factors to be considered in a zoning case is the use and zoning classification of surrounding properties — the character of the neighborhood.

The factors to be considered in determining whether a given zoning ordinance is invalid as applied to particular property have often been repeated. See: Myers v. City of Elmhurst, 12 Ill2d 537, 543, 544, 147 NE2d 300 (1958); LaSalle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957); Mutz v. Village of Villa Park, 83 Ill App2d 1, 8, 226 NE2d 644 (1967); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964). Such factors will be referred to herein insofar as they are relevant to the determination of this case.

The evidence established that the proposed R-4 use would be a more intense use of the property than the use under its present R-2 zoning. The population density under the proposed zoning would increase from fifty to sixty percent. And, the proposed plan called for the closing of the five streets in question. It is not unreasonable to believe that the trial court concluded that these matters were related to the public health, safety, morals, comfort and general welfare of the community. Such conclusion would not be against the manifest weight of the evidence.

We recognize that the zoning ordinance adopted by the Village is presumed valid and the burden of showing it unreasonable and oppressive as applied to plaintiff’s land, rested upon it. Camboni’s, Inc. v. DuPage County, 26 Ill2d 427, 432, 187 NE2d 212 (1963); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 225, 130 NE2d 267 (1955); Mutz v. Village of Villa Park, supra; Fiore v. City of Highland Park, 76 Ill App2d 62, 71, 221 NE2d 323 (1966). In challenging the ordinance’s validity as applied to its property, the burden was on the plaintiff to overcome this presumption, and to prove by clear and convincing evidence that the ordinance was unreasonable and unrelated to public health, safety or welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Mutz v. Village of Villa Park, supra; Fiore v. City of Highland Park, supra; Hoffmann v. City of Waukegan, supra. We do not believe that the plaintiff sustained the burden of proof in this respect.

Due to this presumption, if it appears from all of the evidence that there is justification for a legitimate difference of opinion as to the reasonableness of the ordinance, the legislative judgment of the village must then be upheld. Urann v. Village of Hinsdale, 30 Ill2d 170, 175, 195 NE2d 643 (1964); First Nat. Bank of Lake Forest v. County of Lake, supra, 226; Mutz v. Village of Villa Park, supra; Fiore v. City of Highland Park, supra; Bowler v. Village of Skokie, 57 Ill App2d 321, 325, 207 NE2d 117 (1965). However, the fact that there is a difference of opinion among the witnesses — lay and expert — ■, does not mean that the court must find that the reasonableness of the ordinance is debatable and, thence, uphold the ordinance. In cases of this nature, a court must expect differences of opinion. It is for the court to determine from all of the facts whether the differences of opinion are reasonable and justifiable. Myers v. City of Elmhurst, supra, 544; LaSalle Nat. Bank of Chicago v. County of Cook, supra, 47; Mutz v. Village of Villa Park, supra, 9. From the evidence in the case at bar, we conclude that there was justification for a legitimate difference of opinion as to the reasonableness of the ordinance, and that the legislative judgment of the defendant Village must prevail.

While the evidence established that there was a substantial difference in the value of the plaintiff’s property dependent upon its zoning classification, such fact alone is not decisive of the case. Ryan v. City of Elmhurst, 28 Ill2d 196, 198, 190 NE2d 737 (1963). Such circumstance is one of the factors to be considered in determining the validity of the zoning ordinance, particularly where, as here, there was testimony that the proposed use would depreciate the value of other property in the area. Bolger v. Village of Mount Prospect, 10 Ill2d 596, 602, 141 NE2d 22 (1957). In view of all the evidence, we do not believe that the plaintiff has proved that the zoning ordinance, as applied to its property, is arbitrary, capricious and unreasonable, as charged in its complaint.

The plaintiff admits that the immediate area of the property sought to be rezoned “is characterized by single-family dwellings.” We agree. It is logical to believe that single-family residential property abutting multiple-family uses, where five streets must be closed and the population intensity is to be increased by fifty to sixty per- cent, will be depreciated in value. These adjacent single-family residence owners had a right to rely upon the existing zoning and that it would not be changed unless for the public good. Bolger v. Village of Mount Prospect, supra, 603.

A zoning classification must be upheld if it bears a substantial relation to public health, safety, comfort, morals and welfare and is not an arbitrary exercise of the police power. Ryan v. City of Elmhurst, supra, 198; Bolger v. Village of Mount Prospect, supra, 602. We believe that the ordinance in question meets this test.

In the light of our conclusion, we do not reach the plaintiff’s contention that the trial court had the right to hold the zoning ordinance valid but decree a variance in order that the proposed development could proceed without interference by the defendant Village.

We find nothing in the record which would warrant the substitution of our judgment for that of the legislative body whose action the trial court affirmed. It is our duty to review the evidence and to reverse the verdicts of juries or judgments of trial courts whenever we find such verdicts or judgments against the manifest weight of the evidence. Elgin Lumber & Supply Co. v. Malenius, 90 Ill App2d 90, 232 NE2d 319, 323 (1967); Revcor, Inc. v. Fame, Inc., 85 Ill App2d 350, 356, 228 NE2d 742 (1967). In the case at bar we cannot hold that the findings of the trial court were against the manifest weight of the evidence. Accordingly, the judgment of the trial court should be affirmed.

The judgment of the Circuit Court of DuPage County is, therefore, affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SEIDENFELD

text:
    Robert E. Burden and Carlotta I. Burden, Plaintiffs-Appellants, v. Paul V. Lobdell, et al., Defendants-Appellees.
    Gen. No. 67-139.
    Second District.
    March 28, 1968.
    Haye & Keegan, of Rockford, for appellants.
    Reno, Zahm, Folgate & Skolrood, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiffs’ complaint seeking to remove restrictive covenants established by the plat of a subdivision was stricken on defendants’ motion. Plaintiffs elected to stand on the complaint and the suit was dismissed. This appeal is taken from the order of dismissal.

The plaintiffs allege that “. . . they are owners of the Northerly 60 feet of Lot 1 and Lots 2 and 3, and the North 60 feet of Lots 4, 5, 6, 7, 8 and 9 of Glendale Subdivision . . .” referenced to the following plat of subdivision:

Plaintiffs further allege, as material here, that defendants are owners of all of the other lots and portions of lots in said subdivision; that the defendants Paul V. Lob-dell and Wentworth Lobdell, as Trustees, were the owners of the land so subdivided, and that part of the plat of the subdivision provided that each lot is and shall be subject to the condition and restriction that “It shall be used for residential purposes only”; that plaintiffs purchased Lots 2 and 3 in 1947 and subsequently acquired their additional property in the subdivision; that following their purchase plaintiffs erected a residence on Lots 2 and 3 which they have occupied as a residence for approximately 20 years, and which they now occupy.

The complaint then alleges:

“6. The eastern boundary of said Glendale Subdivision is a public highway known as North Second Street, and which has been designated as U. S. Highway 51, a highway which runs from the northern boundary of the United States to the southern boundary.
“7. At the time the plaintiffs purchased said Lots 2 and 3 and erected their residence thereon, the general character of the area and neighborhood was residential and was sparsely populated. At said time, North Second Street was a two-lane highway and vehicular traffic was light.

“8. Since the plaintiffs purchased said Lots 2 and 3 and erected their residence thereon, the general character of the area and neighborhood has materially changed. The area immediately south of said Glendale Subdivision has been incorporated as the City of Loves Park, which now has a population of approximately 12,000. North Second Street has become the major street of the City of Loves Park, and business and commercial establishments occupy both sides of North Second Street for more than one mile south of the plaintiffs’ home. A shopping center, containing approximately 20 retail and commercial establishments is now situated on the east side of North Second Street diagonally from the southeast corner of said Glendale Subdivision, and retail and commercial establishments have been and now are being constructed on the east side of North Second Street opposite and north of the plaintiffs’ residence. North Second Street has been widened and is now a 4-lane highway, and vehicular traffic is heavy, with approximately 15,000 vehicles passing the plaintiffs’ property each day.
“9. Because of the noise of, and because of the noxious and nauseous fumes from, the vehicular traffic on North Second Street, and because of the changed character of the area and neighborhood in which it is located, the plaintiffs’ residence has become an undesirable place in which to live, and the value of Lots 2 and 3 and the north 60 feet of Lot 1 of said subdivision for residential purposes has depreciated, but would, if the restrictions above set out were removed, be of greatly increased value.
“10. Said restrictions are, because of the changed character of the area and neighborhood in which said subdivision is located, inequitable, and the plaintiffs have no adequate remedy at law by which such inequity could be remedied.”

and prays that the court find and decree that the restrictions set forth above are inequitable and remove the same.

Defendants’ motion to dismiss alleges that the complaint is substantially insufficient in law in that it appears from the complaint: that the restrictions were part of a general plan to limit improvements to one-family residences; that there has been unanimous observance of the restrictions by every lot owner in the subdivision, including the plaintiffs; and that no change in the neighborhood of the subdivision is alleged, nor any zoning changes inconsistent with the restrictions.

The motion to dismiss is to be determined by whether the pleader can prove a set of facts under the allegations of the complaint which would entitle him to relief. Only if no set of facts in support of the allegations of the complaint could prove a cause of action is the cause subject to dismissal. Deasey v. City of Chicago, 412 Ill 151, 153, 154, 105 NE2d 725 (1952); Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, 72 Ill App 2d 488, 492-493, 218 NE2d 823 (1966); Werner v. International Ass’n of Machinists, 11 Ill App2d 258, 262, 137 NE2d 100 (1956).

The courts of this state have, on numerous occasions proclaimed the general rule that a restrictive covenant will not be enforced if the character of the neighborhood has so changed as to defeat the purpose of the covenant. In stating the rule in the early case of Star Brewery Co. v. Primas, 163 Ill 652, 660, 45 NE 145 (1896), the court notes that in most cases where the doctrine has been applied, two elements exist:

“First, the change in circumstances has resulted from some act or acts of the grantor in the deed or of those holding under him; second, the enforcement of the covenant will work a serious injury to the property or property rights of the grantee in the deed, or of the party against whom it is sought to enforce the covenant.”

The rule was thereafter similarly stated in Ewertsen v. Gerstenberg, 186 Ill 344, 349-350, 57 NE 1000 (1900) as follows:

“Equity will not, as a rule, enforce a restriction, where, by the acts of the grantor who imposed it or of those who derived title under him, the property, and that in the vicinage, has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant the relief would be a great hardship on the owner and of no benefit to the complainant, or where the complainant has waived or abandoned the restriction, — or, in short, it may be said that where, from all of the evidence, it appears that it would be against equity to enforce the restriction by injunction relief will be denied, and the party seeking its enforcement will be left to whatever remedy he may have at law.”

The latter rule has been more recently confirmed in similar language in Cuneo v. Chicago Title & Trust Co., 337 Ill 589, 595, 169 NE 760 (1929). The same rule is to be found in numerous Illinois cases, including Drexel State Bank of Chicago v. O’Donnell, 344 Ill 173, 180, 176 NE 348 (1931); Henricks v. Bowles, 20 Ill App2d 148, 154, 155 NE2d 664 (1958); Mangini v. Oak Park Trust & Savings Bank, 43 Ill App2d 318, 321, 193 NE2d 479 (1963); Paschen v. Pashkow, 63 Ill App2d 56, 69-70, 211 NE2d 576 (1965). While these cases were decided upon evidence taken, a dismissal of a complaint upon motion invoked the similar rule in Ockenga v. Aiken, 314 Ill App 389, 394, 41 NE2d 548 (1942).

A fair statement of the basis and extent of the principles announced in the various cases which govern a claim of change of conditions sufficient to avoid a restrictive covenant may be found in the comment in 4 ALR2d 1111, 1114:

“. . . While restrictions in deeds are not favored in law, they will be construed as found, and it is a primary rule that a building restriction will be upheld wherever it remains of substantial benefit to the parties objecting to its violation, provided they are not estopped by their conduct from making such objections. Consequently, for a change in neighborhood conditions to relieve against enforcement of a restriction and especially to constitute a sufficient ground for cancelation or modification of a restriction, such change must be so radical and complete as to render the restriction unreasonable, confiscatory, and discriminatory, or as practically to destroy the purpose for which the restriction was originally imposed, relief from an onerous building restriction because of a change in the character of the neighborhood being granted only if it can be done without causing damage to others who have purchased their property in the restricted area in reliance on the restriction. . . .”

Applying these principles to the complaint in this case, we agree with the trial court that the complaint is substantially insufficient in law.

It is clear from the complaint that not even a single violation of the restrictive covenant has occurred in the subdivision which might be said to be a basis for an estoppel against the defendants who are defending the restriction. It is obvious that the general purpose of creating a residential subdivision has been accomplished. Even the plaintiffs still occupy their residence in the subdivision.

The allegations that the surrounding area has grown in population, that bordering highways have been widened, developed with business and commercial establishments, including a shopping center, and carry more traffic, do not show a change in the character of the neighborhood to an extent which would make the enforcement of the restrictions in Glendale Subdivision serve no useful purpose. Route 51 bordering plaintiffs’ property was in existence as a main artery at the time the restrictions were placed on the subdivision and at the time plaintiffs acquired their property. The conditions alleged could, by reasonable inference, well have been contemplated at the time the restrictions were placed on the subdivision.

The complaint clearly shows that the residential character of the subdivision remains intact. There is no allegation that the remaining lots in the subdivision have depreciated in value. It appears patently inequitable from the complaint to obviously reduce the value and enjoyment of the defendants’ property to their damage by granting plaintiffs the right to use their properties in a manner not consonant with the plan of the purely residential subdivision shown by the plat and the plat restrictions.

We find that no facts could be adduced in support of the allegations and prayer of the complaint which would not result in unjustly injuring the defendants. In equity the complaint does not make out a case for the removal of the residential restrictions and was properly dismissed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Lawrence Borrowdale and Eugene F. Kwiecien, Plaintiffs-Appellees, v. Jesse Shepherd and Hillcrest Center, Inc., an Illinois Corporation, Defendants-Counter-Plaintiffs, Appellants, Percy Wilson Mortgage and Finance Corporation, an Illinois Corporation, Defendant-Counter-Defendant, Appellee.
    Gen. No. 51,507.
    First District, Third Division.
    October 26, 1967.

      Seymour R. Goldgehn and Crowley, Sprecher, Barrett & Karaba, of Chicago (Robert A. Sprecher, of counsel), for appellants.
    Hubachek, Kelly, Miller, Rauch & Kirby, of Chicago (Richard W. Burke, of counsel), and J. S. Krakauer and Seymour Schriar, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The plaintiffs seek to recover a commission which they allege to be due pursuant to an oral contract with the defendant Hillcrest Center, Inc. and its president Jesse Shepherd, whereby plaintiffs were to procure mortgage financing for a contemplated shopping center. The jury returned a verdict for $28,000 against Hillcrest Center, Inc., but found Shepherd not guilty. Judgment was entered on the verdict and Hillcrest Center takes this appeal. Percy Wilson Mortgage and Finance Corporation (hereinafter referred to as the Wilson Corporation) was originally also named as a defendant, but was dismissed before trial. Hillcrest Center filed a counterclaim against the Wilson Corporation which was dismissed on motion.

Plaintiffs are mortgage brokers, and in December, 1956 Shepherd sought their aid in procuring financing in the sum of $1,600,000 for construction of a shopping center by Hillcrest Center near Joliet, Illinois. In January 1957 Shepherd as president of Hillcrest signed a written agreement whereby Hillcrest authorized the plaintiffs to seek such a loan and promised to pay them one percent of the amount of the loan if they found a lender who would accept the application for loan within 60 days from the date thereof. No financing was found and no compensation is claimed on the basis of that contract. It is material only in that plaintiffs rest their case on its terms as having been incorporated by reference in a subsequent oral contract with the defendants. After the period of 60 days’ limitation incorporated in the contract had expired, the plaintiffs heard that Hillcrest had obtained additional land for its proposed shopping center. This inspired a revival of activity on their part and in December, 1957, they met with Shepherd to discuss Hill-crest’s new plans, for which mortgage financing in the sum of $2,800,000 would be required. Plaintiffs’ claim is that it was at that time the oral contract was made which contained the same terms as the prior written contract.

On February 4,1958, plaintiffs brought Shepherd to the Wilson Corporation and introduced him to its vice-president. At that time Shepherd signed a new loan application with the Wilson Corporation in which Hillcrest agreed to pay the Wilson Corporation two percent of the amount of the loan if financing were procured. After that meeting neither Shepherd nor Hillcrest had any dealings with the plaintiffs.

On July 24, 1958, more than six months after the meeting at which the alleged oral agreement was made, the Wilson Corporation had Hillcrest make an application for a loan to Massachusetts Mutual Life Insurance Co. A loan by the insurance company of $2,800,000 was approved on August 14, 1958. Hillcrest paid the agreed commission of 2% of $2,800,000, or $56,000, to the Wilson Corporation for obtaining the loan and Massachusetts Mutual paid the Wilson Corporation $12,000 as a finder’s fee, which it turned over to Hillcrest as a credit against the commission.

Hillcrest contends that the trial court erred in not directing a verdict in its favor because the plaintiffs failed as a matter of law to perform the terms of the contract. The plaintiffs read the written contract into the record to show the terms of the oral contract on which suit was based. The last paragraph provides as follows:

“We agree to pay . . . one (1%) percent of the amount of the loan as your commission for negotiating this loan, which commission shall be considered as earned upon the acceptance of this application by the lender at any time within sixty days from the date hereof.” (Emphasis added.)

The oral agreement was made in December, 1957, but the loan was not accepted by the lender Massachusetts Mutual until August 14, 1958, far beyond the 60-day limitation. Plaintiffs’ contact with Hillcrest ended on February 4, 1958, when they brought Shepherd to the Wilson Corporation and the new application for loan was agreed upon. Plaintiffs argue that interpretation of the contract was for the jury and since the verdict was in their favor, the jury must have interpreted the 60-day clause to mean something other than its plain and unambiguous language reveals. They also argue that the application made to Massachusetts Mutual on July 24, 1958, was the event which was to start the 60-day period running. No such interpretation can be derived from the language of the contract. It is clear and unambiguous on its face and therefore it was not within the province of the jury to place any other interpretation on it.

Plaintiffs also contend that defendants did not raise this point in the trial court and that consequently they failed to preserve the point for appeal. With this we cannot agree. The burden of proving the existence and performance of the contract was on the plaintiffs and it was incumbent on them to show that they had performed within the 60-day period. Defendants preserved their point by raising it in their post-trial motions.

Plaintiffs adduced no evidence to show that they had performed within 60 days of the date of the application or to show that the condition of performance within 60 days had been waived. Since they explicitly state that they base their suit on an oral agreement which embodied the terms of the prior written contract containing the 60-day provision, the court erred in not directing a verdict for the defendants.

Defendants contend that it was error for the trial court to dismiss their counterclaim against the Wilson Corporation. That point becomes moot however as a result of our reversal of the judgment against Hillerest Center.

Judgment reversed.

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

On Rehearing

Having examined the petition for rehearing, the answers and the reply and having reconsidered the original briefs and arguments, we have decided to adhere to our opinion.

Judgment reversed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    John Sweeney, Plaintiff-Appellee, v. Max A. R. Matthews, Defendant-Appellant.
    Gen. No. 51,417.
    First District, Third Division.
    March 14, 1968.
    Rehearing denied and supplemental opinion May 2, 1968.

      Howard, French and Healy, of Chicago (Richard G. French, of counsel), for appellant.
    George W. Angerstein and Sidney Z. Karasik, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a products liability case. The defendant, a merchant in the hardware and building supply business, appeals from a $45,000 judgment entered against him after a jury returned a verdict in favor of the plaintiff.

The principal points on appeal center around the applicability of the strict liability in tort doctrine to a seller of a simple object — a nail made for the penetration of concrete and mortar. There are lesser points relating to alleged trial errors which will be discussed later in the opinion.

The plaintiff was a carpenter employed by Hartman-Sanders Company — a millwork firm engaged in remodeling a restaurant. In the course of his work it became necessary to attach wood furring strips to a wall composed of brick and mortar. For this purpose he used special nails supplied by his foreman who had purchased them that same day at the defendant’s store. The foreman had asked a salesman for “cut” nails but the defendant was out of them and the foreman was told that they had something as good if not better than cut nails: a concrete nail. A cut nail is square in shape and tapered towards the bottom. A concrete nail is round like an ordinary nail; however, it is harder, heavier and more resistive to bending pressure than an ordinary nail. The foreman ordered five pounds of the concrete nails and they were scooped out of an open bin and put into a brown paper bag.

As the plaintiff struck the nails with his hammer, the heads of the first three or four broke off and shot across the room. As he attempted to drive the next nail into the mortar it shattered and a piece struck him in the left eye and blinded him. Prior to the occurrence he had perfect vision in both eyes. At the time of the trial he could see light and bright colors but was unable to discern shapes with his left eye.

At the outset there is presented the defendant’s objection to a pleading-procedural aspect of the case. The complaint sought recovery on three theories: negligence, express warranty and implied warranty. At the close of the plaintiff’s case and at the termination of the trial the defendant moved for a directed verdict on the ground that none of the theories had been sustained by the evidence. The two motions were denied. The defendant renewed the contention in his post-trial motion and it was again denied. The plaintiff was then permitted to supplement his complaint by the addition of a strict liability in tort allegation. The defendant contends that since each of his motions should have been granted the supplemental allegation came too late.

First of all, the plaintiff had introduced evidence which tended to prove each of his theories and the evidence was sufficient to justify their submission to the jury. Therefore, the trial court ruled correctly in denying the defendant’s motions. Second, the allegations of the complaint were adequate, in and of themselves, to sustain a recovery under the strict liability theory and an instruction on this theory had been given to the jury. A failure to specifically allege strict liability does not necessarily make a complaint deficient. Haley v. Merit Chevrolet, Inc., 67 Ill App2d 19, 214 NE2d 347 (1966). In Haley the court had before it a complaint which charged negligence, express warranty and implied warranty. The court said:

“It is true that none of the counts base a claim for recovery on the Suvada [Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965)] theory of strict liability in tort. But the complaint in Suvada itself fails to do so, and yet the Supreme Court affirmed the Appellate Court’s holding that the complaint stated a cause of action. There, as here, the complaint based its claim for relief upon theories of negligence and of implied warranty. The failure to state clearly the Suvada theory therefore does not make the complaint insufficient.”

Third, the Civil Practice Act provides that pleadings may be amended at any time, before or after judgment, to conform to the proof. Ill Rev Stats 1965, c 110, § 46(3). The complaint was filed before the Suvada decision which approved strict liability in tort. The supplement was filed after that decision became final. The complaint was thus revised by definitively adding an up-to-date theory of recovery to those already pleaded, which theory conformed to the proof already adduced. The trial court did not err in permitting the amendment.

The Suvada decision emphasized that in order to recover under the strict liability theory a plaintiff, who claims that he was injured by reason of a defective product, must prove that his injury resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control. The defendant contends that the plaintiff did not meet the standards of proof required by Suvada and that strict liability does not apply to a retailer.

The latter contention cannot be upheld. In Suvada strict liability was applied to a manufacturer but the court noted that liability extends to a seller of a defective product. In Haley v. Merit Chevrolet, Inc., previously cited, and in McKee v. Brunswick Corp., 354 F2d 577 (7th Cir 1965), a case interpreting Illinois law, strict liability was applied to retailers. The rationale behind this application is aptly set forth in Vandermark v. Ford Motor Co., 61 Cal2d 256, 37 Cal Rptr 896, 391 P2d 168 (1964):

“Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. [Citation.] In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. . . .”

Before a consumer can recover from a retailer he must prove that: the retailer sold the product, the product was defective, the defect made the product unreasonably dangerous, the defect was in the product when it was sold by the retailer, the consumer used the product for the purpose it was intended and in the way it was intended to be used or for a purpose and in a way that was reasonably foreseeable, and the defective product caused his injury. In the present case there is no dispute as to three of these elements. The plaintiff was injured by the nail, the nail was sold by the defendant and, if there was a defect, it was in the nail at the time it was sold. Moreover, the plaintiff was using the nail for a proper purpose and there was adequate proof that he was using it in a proper manner. The nail was designed to facilitate the affixing of other objects to concrete or mortar and this is precisely the use the plaintiff made of it. He testified that he was hitting the nails squarely and demonstrated his method of hammering them to the jury. However, other witnesses testified that concrete nails are brittle, have a tendency to break rather than bend and that such nails must be struck exactly on the head and hammered in straight to keep them from breaking and “go[ing] like bullets” in different directions. This testimony implied that perhaps he was not striking the nails correctly. At most, the implication presented a question of fact for the jury’s determination.

To prove that the nail was defective, the plaintiff called as an expert witness a metallurgical engineer. The witness testified that he made a random selection of one dozen nails from the brown paper bag and subjected them, and some nail fragments which were in the bag, to a battery of tests. All of the tests were not performed on the fragments for fear of destroying them.

The tests indicated that there were two types of nails and these were separated into groups A and B for identification purposes. Group A consisted of three nails and group B of nine. The nails in group A were ductile and bent to 180 degrees. The nails in group B were brittle and fractured when subjected to a bend test. When a microhardness test was performed the nails in group A displayed a uniform hardness throughout each nail (a Rockwell test hardness of 41C), while those in group B were much harder on the surface than at the core (a Rockwell test of 63C on the surface, 21C at the core).

A chemical analysis was performed and seven common elements compared. All of the elements were found to exist in relatively the same proportion in the two groups with the exception of carbon which was twice as high in those nails belonging to group A than in the nails belonging to group B. It was the opinion of the witness that this difference accounted for the brittleness of the nails in group B and that the variance between the carbon composition of the two groups occurred during the manufacture of the nails when those in group B were given an improper heat treatment and surface carbon was lost due to overheating. He further testified that microscopic tests indicated that the fragments (which had been found on the floor of the room in which the plaintiff was working) were the same as the nails in group B. He believed the nails in both groups were made from the same piece of steel and that the group A nails were of sufficient hardness to penetrate concrete.

In view of the unrebutted testimony of the metallurgist, a justifiable inference could be drawn that, even though concrete nails are by their very nature more dangerous to use than ordinary nails, it was the low carbon content in the nails used by the plaintiff which caused them to shatter as they did, and that the nails therefore were defective and unreasonably dangerous. A nail in itself is not a dangerous product; but a nail defectively made, which has the propensity because of a hidden defect to splinter and fly in all directions, is an unreasonably dangerous product.

The plaintiff met his burden of proof. As we mentioned, some elements of proof were not in controversy. As to the others there was sufficient evidence from which the jury could conclude that the plaintiff struck the nails correctly, that most of the nails were defectively manufactured, that the defect made them unreasonably dangerous and that one of the defective nails injured the plaintiff.

This brings us to another important issue: the conduct of the plaintiff — and the instructions of the court in reference to this conduct. The plaintiff had used concrete nails prior to the accident and knew that they were hardened nails which would not bend like ordinary ones. The day before he was injured he had been sent to purchase hardened square-cut nails; he found them unsatisfactory because they would bend and not penetrate mortar, so he returned them. However, he continued to use the concrete nails despite the fact that they too were unsatisfactory. He testified that as he was striking the nails the thought entered his mind that either he was doing something wrong or that something was wrong with the nails themselves. Nevertheless, this did not deter him. Nor did he stop to put on safety glasses — although Hartman-Sanders had instructed its carpenters to use them when hammering concrete nails. While the glasses were not at hand, they were available at the employer’s nearby place of business. Another carpenter was nailing furring strips in the same room with the plaintiff. He started using the nails before the plaintiff did and testified that every second nail he struck broke and flew over the room.

The plaintiff’s apparent indifference to consequences might have justified a directed verdict against him were it not for other factors which made his conduct a jury-question. He was nineteen years of age and had worked as a carpenter for only a short time. Although he held a journeyman’s card he had never worked as an apprentice and had no experience as a carpenter before being employed by Hartman-Sanders. He had used concrete nails before the accident but none had broken and he thought they could take more abuse than other nails. He and the other carpenter were working on opposite walls; his own assignments took him out of the room much of the time and he was unaware that the other man was experiencing trouble with the nails. He said that as far as he knew safety glasses were not required. He never saw the carpenters with whom he worked use them and the older, more experienced carpenter working in the room with him was not using them the afternoon of the accident.

All this evidence made the reasonableness of the plaintiff’s conduct a borderline question which the jury might have decided either way. Because of this, it is necessary to scrutinize the instructions bearing on his conduct.

The defendant had been permitted to amend his answer to raise the affirmative defense of assumption of risk and he tendered an instruction on this defense. The plaintiff objected. No objection was made to the content of the instruction. The objections were three in number: first, that the doctrine of assumption of risk was inapplicable because it is only available in master-servant relationships; second, that the assumption of risk defense, having been filed at the close of all the evidence, came too late for the plaintiff to contest and, third, that the defense of contributory negligence was available to the defendant. The court refused the instruction and the defendant asserts that this, was error. Since the court offered the plaintiff the opportunity of reopening his case to meet the affirmative defense, his second objection was not well taken. His first and third objections, however, merit examination.

The objection that the defense of assumption of risk can only be used when the plaintiff is the employee of the defendant was a substantially accurate statement of Illinois law. The defense has not been recognized in Illinois except in employer-employee cases, in cases in which a contractual relation existed between the plaintiff and defendant, and in two other cases, one involving a patron of an amusement park and one a player on a golf course. There are, in fact, only two instructions on assumption of risk in our Illinois Pattern Jury Instructions: one (13.02) relates to the employer-employee relationship and the other (13.01) to the contractual relationship.

Ninety-four years ago the Illinois Supreme Court followed the settled law and held that an employee, injured because of defective machinery, who had knowledge of the defects and continued to use the machinery, could not recover against his employer because he assumed the risk of such defects. Camp Point Mfg. Co. v. Ballou, 71 Ill 417 (1874). This was also the holding in Pennsylvania Co. v. Lynch, 90 Ill 333 (1878). These decisions did nothing more than permit the assumed risk defense in master-servant cases; thereafter, however, Illinois courts limited the defense to such cases. In Pennsylvania Co. v. Backes, 133 Ill 255, 24 NE 563 (1890) the court held that an instruction on assumed risk was not applicable to the facts because the relation of master and servant did not exist. In B. Shoninger Co. v. Mann, 219 Ill 242, 76 NE 354 (1906) the court stated: ", . . the doctrine of assumed risk rests upon and grows out of the contractual relation which exists between master and servant.” And in Conrad v. Springfield Ry. Co., 240 Ill 12, 88 NE 180 (1909) it was said: “. . . the doctrine of the assumption of risk is only applicable to cases arising between master and servant.” These pronouncements fixed the law in Illinois and they have been echoed down to the present day.

There are some cases which express the applicability of the doctrine in terms of a contractual relationship. In Chicago & E. I. R. Co. v. Randolph, 199 Ill 126, 65 NE 142 (1902) it was held that an instruction on assumed risk was properly refused because there was no contractual relation between the parties. See also: Mueller v. Phelps, 252 Ill 630, 97 NE 228 (1912); Walsh v. Moore, 244 Ill App 458 (1927) and Reed v. Zellers, 273 Ill App 18 (1933).

The defense has been allowed in a very few noncontractual and nonmaster-servant cases. An isolated case was Brownback v. Thomas, 101 Ill App 81 (1902) where the court, without reference to the prior Supreme Court decisions, broadly stated that one who voluntarily does an act which results in his injury assumes the risk and cannot recover damages. In Murphy v. White City Amusement Co., 242 Ill App 56 (1926) it was held that a patron injured on an amusement device assumed the risk of injury. In Campion v. Chicago Landscape Co., 295 Ill App 225, 14 NE2d 879 (1938) a golfer was struck by a ball while playing on a public course. The court surveyed cases from other jurisdictions and concurred with those which held that there may be a voluntary assumption of a known danger independent of a contractual or master and servant relationship. In both the Murphy and Campion cases, however, it can be argued that there was a contractual relationship between the plaintiff and the defendant. Although leave to appeal was denied (296 Ill App XVII) the Campion pronouncement exerted little influence upon subsequent decisions. It was found to be unpersuasive, in the face of the contrary Supreme Court decisions, in Hensley v. Hensley, 62 Ill App2d 252, 210 NE2d 568 (1965), and deserving of little weight, as obiter dictum, in Maytnier v. Rush, 80 Ill App2d 336, 225 NE2d 83 (1967).

The criticism of the Illinois limitation has not been confined to the Campion case. Legal writers speak of it disparagingly. For example, in his Law of Torts, 3rd ed, section 67 at page 450 (1964), Dean William L. Prosser cites Conrad v. Springfield Ry. Co. as a case in point in stating: “There are even courts which have limited the use of the term ‘assumption of risk’ to cases in which the parties stand in the relation of master and servant, or at least some other contractual relation. . . .” And at page 459 he cites B. Shoninger Co. v. Mann as an example of an early decision which is still adhered to, in stating that:

“Although it was said in early decisions, and is still repeated by some courts, that assumption of risk will not be found apart from a contract relation between the parties, it is now generally recognized that the basis of the defense is not contract but consent.”

Pennsylvania Co. v. Backes, B. Shoninger Co. v. Mann and Conrad v. Springfield Ry. Co., and the cases which followed them, were decided under negligence law. We are now confronted with a tort action not based on negligence. A manufacturer can be most careful in making and testing his product, a purveyor can be free of all negligence in selling it, but both can be held accountable if a defect, unknown to them, was in the product at the time it was made or sold. Under this action negligence of the user in failing to discover the defect is not a defense; his negligence in failing to appreciate the danger of the defect is not a defense. Unless the liability of the manufacturer and the purveyor is to be regarded as absolute, appropriate defenses must be available to them. The present restricted application of the defense of assumption of risk should be reviewed; but irrespective of whether the defense is permitted in all negligence actions, it cannot logically be prohibited in strict liability actions.

The ultimate user has no duty to inspect a product to see if it is free of defects. Unless a defect is obvious, he has the right to assume that the product is safe and that it will not injure him if it is used normally. This being true, he is not negligent if he fails to discover the defect. If, however, he finds out that a product is defective and, because of this, dangerous, and uses it anyway — he is more than negligent; he is deliberately taking a chance that he will escape injury. Failure to discover the defect is not contributory negligence; deliberately proceeding to use the product after discovery is assumption of risk.

This is the general rule in other jurisdictions. The case law is summarized in the following quotations. Dean John W. Wade in, Strict Tort Liability, 19 Sw LJ 5, pp21-22 (1965) states:

“The cases appear to be in disagreement as to whether contributory negligence of the plaintiff bars his recovery in an action for strict products liability. In general, however, they can be reconciled by adverting to the customary distinction between contributory negligence and assumption of risk. If the plaintiff’s negligence was in failing to discover the unsafe condition of the product he can usually recover; if his negligence was in continuing to use the product after learning of the danger condition, his recovery is usually barred.”

Dean Prosser puts it this way:

“It frequently is said that the contributory negligence of the plaintiff is not a defense in cases of strict liability. ... At the same time, the defense which consists of voluntarily and unreasonably encountering a known danger, and in negligence cases passes more or less indiscriminately under the names of contributory negligence and assumption of risk, will, in general relieve the defendant of strict liability. Here, as elsewhere, the plaintiff will not be heard to complain of a risk which he has encountered voluntarily, or brought upon himself with full knowledge and appreciation of the danger. . . . Upon this basis, the kind of contributory negligence which consists of voluntary exposure to a known danger, and so amounts to assumption of risk, is ordinarily a defense.” Law of Torts, 3rd ed, § 78, pp 538, 539 (1964).

The same rule is set forth in comment n of section 402A of the American Law Institute’s Restatement of the Law (Restatement, Second, Torts):

“. . . Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”

This rule may appear, at first sight, to be contrary to the pronouncement in People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6 (1967) where the court said:

“This is a products liability case pleaded in two counts, one alleging negligence, and the other alleging breach of warranty, in Suvada v. White, 32 Ill 2d 612, this court adopted the theory which imposes strict tort liability on the manufacturer. Under that theory, negligence need not be proved and a plaintiff has only to prove that his injury or damages resulted from a condition of the product, that the condition was an unusually dangerous one, and that the condition existed at the time the product left the manufacturer’s control. However, under both counts it is necessary to prove that the plaintiff was in the exercise of due care for his own safety.”

The last sentence has been interpreted as requiring proof of freedom from contributory negligence in strict tort liability cases. In Dunham v. Vaughn & Bushnell Mfg. Co., 86 Ill App2d 315, 229 NE2d 684 (1967), a strict tort liability case, the court equated contributory negligence with assumption of risk after saying: “We interpret the language of Bua to state that freedom from contributory negligence is an element to be proven, both in products liability and warranty cases.” In Ozman, Products Liability Under the Suvada Theory, 55 Illinois Bar Journal 960 (1967), the author says that Bua “unequivocally” means that a cause of action founded upon a theory of strict liability requires proof that the plaintiff was in the exercise of due care for his own safety. We are not certain if these interpretations are correct. The reference in Bua to the requirement of due care could be to the two counts pleaded in that case: negligence and warranty. In any event, the position we have taken in this opinion is not in conflict with Bua. We have indicated that misuse of a product may defeat a plaintiff’s claim but have held that negligence in failing to discover a defect will not. Even if the court in Bua was referring to strict liability, it did not state whether the plaintiff was required to prove due care in the way he used the product or due care in ascertaining if the product was defective. It does not appear that the court could have meant the latter. In Suvada it was said, in reference to indemnity, that negligence would be the antithesis of strict liability. Moreover, the court there said its views coincided with the position taken in section 402A of Restatement of the Law of Torts; presumably this would be approval of the interpretative comments accompanying that section — including the one which coincides with our view: comment n.

The third objection made by the plaintiff to the tendered instruction on assumption of risk was that it was unnecessary because instructions submitted under the negligence count made the defense of contributory negligence available to the defendant. Although contributory negligence and assumption of risk frequently overlap, differentiating them is of great importance to the injured party in a strict liability case. Professor Robert E. Keeton in his article, Assumption of Risk in Product Liability Cases, 22 Louisiana L Rev 122 (1961) defines six categories of assumed risk and states at page 133 that while all six will sometimes overlap with contributory negligence neither doctrine can be said to be only a phase of the other and that the intermingling of the two serves only to cause confusion. At page 164 he observes:

“Confusion is less likely, both on the bench and in the jury room, if consent to risk is treated instead as a distinct, affirmative defense, concerned with the plaintiff’s own participation in bringing about the harm of which he is complaining.”

The distinction between the two defenses was noted in Minters v. Mid-City Management Corp., 331 Ill App 64, 72 NE2d 729 (1947) and in Chicago & E. I. R. Co. v. Heerey, 203 Ill 492, 68 NE 74 (1903) where the court said: “Contributory negligence and assumption of risk" are entirely different things in the law. Although the two questions may both arise under the facts of a case, yet they are wholly separate and distinct.” Contributory negligence involves inadvertence, carelessness, unintentional failure to exercise ordinary care for one’s own safety; it is measured by the objective standard of a reasonably careful person; freedom from contributory negligence must be pleaded and proved by the plaintiff. Assumption of risk involves conscious exposure to danger, consent to or the deliberate decision to encounter a known risk, the willingness to take a chance; it is more subjective than objective; assumption of risk is an affirmative defense which must be pleaded and proved by the defendant. Bohlen, Voluntary Assumption of Risk, 20 Harv L Rev 14, 91 (1906); Bohlen, Contributory Negligence, 21 Harv L Rev 233 (1908).

At the time the objection was made to the instruction on assumption of risk, the court had accepted instructions on negligence, submitted by both the plaintiff and defendant, and subsequently gave them to the jury. These instructions defined negligence and contributory negligence and informed the jury that the plaintiff claimed he was injured while exercising ordinary care for his own safety; that he had the burden of proving this; that it was his duty to use ordinary care and this meant that he had to be free of contributory negligence. While the instructions were not the equivalent of one on assumed risk, they did impose a standard of care which would have defeated the plaintiff’s claim if the jury found that he voluntarily exposed himself to a recognized risk. Under the instructions the jury could have found that he was negligent in failing to discover that the nails were defective or in failing to realize the danger that the shooting fragments could enter his unprotected eyes. This was something the jury would not have been permitted to do under an appropriately worded instruction on assumption of risk. Under the given instructions it was the burden of the plaintiff to prove that he was exercising the care for his own safety that a reasonably prudent person would have used under the same circumstances. It was his burden to prove that he was free of negligence in hammering a fifth nail after four had shattered ; that he was free of negligence in proceeding as he did even though he suspected something might be wrong with the nails. Under an instruction on assumed risk the plaintiff would not have had such burdens. Instead the burden would have been on the defendant to prove to the jury’s satisfaction that the plaintiff knew the nails were defective, appreciated the danger and deliberately and unreasonably exposed himself to it nevertheless, or that the defect and danger were so open and obvious that the plaintiff must have comprehended and appreciated them. The defendant, therefore, benefited more from having the jury instructed on the defense of contributory negligence than if the jury had been instructed on the more difficult to prove defense of assumption of risk. Under this circumstance the defendant, while entitled to a proper instruction on assumed risk, was not prejudiced by the trial court’s refusal to accept the tendered instruction.

The additional trial errors urged by the defendant pertain to the foundation laid for the admission into evidence of the nails and the nail fragments, the restrictions imposed on the cross-examination of a witness who was one of the persons having possession of the nails subsequent to the occurrence, and an instruction given in behalf of the plaintiff.

The instruction concerned the requirements of proof. The defendant did not object to this instruction at the conference on instructions and his objection cannot be voiced for the first time on review. Bucyna v. Rizzo Bros. Movers, Inc., 31 Ill App2d 31, 175 NE2d 640 (1961).

Between the accident and the trial the nails were at different times in the possession of the owner of the restaurant, the officer manager of the Hartman-Sanders Company, an insurance investigator, the metallurgist and an office associate of the plaintiff’s attorney. The restaurant owner testified that immediately after the accident he went into the room which was being remodeled and picked up three pieces of nail he observed on the floor. He placed these in a brown paper bag which was also on the floor and delivered the bag to Hartman-Sanders. The office manager examined the bag and found that it contained whole nails and nail fragments. The bag was then turned over to the insurance investigator who examined the contents, separated the nails and the fragments and delivered them to the metallurgist. The latter returned them to the investigator and they remained in his possession until he gave them to the lawyer associated with the plaintiff’s attorney. Each witness in the chain of possession identified the bag, the nails and the fragments, either positively or substantially, and testified that they appeared to be in the same condition as when he had them in his possession. Although there were minor variations in the testimony, a review of the record as a whole shows that an adequate foundation was laid for the admission of the exhibits.

The defendant complains that the court unfairly restricted the cross-examination of the investigator. The investigator’s employer was an insurance company which insured the Hartman-Sanders firm and paid workmen’s compensation to the plaintiff. The defendant wished to show the insurance company’s interest in the outcome of the case by reason of its subrogation right against the plaintiff’s claim. It is always permissible to show the motive, bias or prejudice of a witness or his interest in the result of the litigation and this may be done despite the fact that it may disclose insurance coverage. Seyferlich v. Maxwell, 28 Ill App2d 469, 171 NE 2d 806 (1961); Pinkerton v. Oak Park Nat. Bank, 16 Ill App2d 91, 147 NE2d 390 (1958); Moore v. Young, 317 Ill App 474, 46 NE2d 852 (1943). Latitude must be allowed in cross-examination in matters affecting credibility but the extent of which it is permitted rests largely in the discretion of the trial court. After conferring with the attorneys the court ruled that it could be shown that the insurance company which employed the investigator had an interest in the case adverse to the defendant but that the jury could not be informed of the nature of the interest. In making this ruling the court was fair to both parties. Injection of the compensation received by the plaintiff was avoided but the defendant was permitted to impeach the credibility of the investigator by showing his employer had an interest in the outcome of the case. This is the exact inference which would have been created by referring specifically to the workmen’s compensation and the subrogation claim, but without the prejudice these references could have caused the plaintiff’s case.

The judgment of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN; JJ., concur.

Supplemental Opinion on Petition For Rehearing

In his petition for rehearing the defendant argues that the trial court’s refusal to give his instruction on assumption of risk was prejudicial error for two reasons: first, because the jury could have found the plaintiff guilty of contributory negligence under the negligence theory of the case but found the defendant liable under the strict liability theory; second, since this was a borderline case which the jury could have decided either way, it was imperative for the jury to have been properly instructed.

The first argument is unsound. If the jury found that the plaintiff was guilty of contributory negligence it could not, under the instructions of the court, have found the defendant liable under either theory.

The second argument presumes that the tendered instruction was an accurate statement of the law. We refrained from commenting on the instruction in our opinion because its accuracy was not in controversy; as we said: “No objection was made to the content of the instruction.” We stated that the defendant was entitled to a proper instruction on assumption of risk; we also spoke of an appropriately worded instruction on the same subject. The qualifying words were employed because the submitted instruction was neither correctly adapted to the facts of the case nor correctly related to strict tort liability.

The instruction was offered as a modified version of IPI 13.02 but, even though modified, it retained features applicable to the employer-employee relationship. It spoke of the dangers ordinarily accompanying the activities undertaken by the plaintiff. The danger in this case arose because of a defect in the particular nails sold by the defendant — not because the plaintiff assumed the general risk of hammering nails as a carpenter working for Hartman-Sanders. The instruction permitted the defendant to be exonerated if he proved, together with two other propositions, that the plaintiff “in the exercise of ordinary care would have known the dangers existed and realized the possibility of injury from them.” As our opinion pointed out, this defense is unavailable in a strict liability case. Furthermore, the instruction did not distinguish between the exercise of ordinary care (or the freedom from contributory negligence) arising from the possible misuse of the product, and that arising from failing to discover the defect in the product or from failing to guard against the possibility of its existence.

Although an objection directed to these deficiencies might have brought forth a corrected instruction, this consideration is of no significance since the plaintiff’s objection was to the giving of any instruction on the assumption of risk, not just to this particular instruction. It was the defendant’s obligation to tender a proper instruction on the applicable law and since he did not he cannot complain that his instruction was refused. The fact that the court rejected the instruction for other reasons is inconsequential. The reason the court may give for its decision is immaterial if the decision is correct. Cady v. Hartford Fire Ins. Co., 56 Ill App2d 429, 206 NE2d 535 (1965).

The petition for rehearing is denied.


text:
    Aphrodite F. Sarelas, Plaintiff-Appellant, v. Stanley I. Lerner, a/k/a Stanley J. Lerner, and Matherson-Selig Co., a Corporation, and Chester Stanczyk, Defendants-Appellees.
    Gen. No. 52,597.
    First District, Third Division.
    March 28, 1968.

      Eugene P. Meegan, of Chicago, for appellant.
    Hubbard, Hubbard, O’Brien & Hall, and Ross, Jacobson & Sorensen, of Chicago (Howard T. Sorensen and Timothy J. Gillick, of counsel), for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff’s automobile was damaged, and she was allegedly injured, when her automobile was hit from behind on Chicago’s Outer Drive on a rainy night in August 1960. The auto which bumped into her belonged to the defendant, Matherson-Selig Co., and was driven by its employee, the defendant Stanley Lerner. In the same collision, the Matherson-Selig auto was hit in the rear by the auto of the defendant Chester Stanczyk.

The plaintiff brought an action for personal injuries and a jury trial was held. The jury returned a verdict against Matherson-Selig, and Lerner and assessed the plaintiff’s damages in the sum of $716.50. The jury found the issues in favor of Stanczyk.

The plaintiff appealed from both judgments to the Supreme Court but, upon motion by the defendants, the case was transferred to this court. Apart from the constitutional aspects of her contentions, which the Supreme Court found either nonexistent or insubstantial, the plaintiff claims that the trial court erred in permitting the jury to separate overnight during its deliberations and to resume deliberations the following day. She also claims that someone tampered with the instructions given the jury because handwritten notes appeared on the reverse side of two of them when they were returned to the court upon completion of the jury’s deliberations. A third claim is that the court erred in entering a post-appeal order; however, the record shows neither an objection to nor an appeal from this order.

The plaintiff does not challenge the amount of the verdict in her points and authorities or elsewhere in her brief. Inasmuch as she does not contend that the damages awarded her are inadequate, she does not show how she was prejudiced by the errors which she alleges took place in the trial court. Similarly, although she appeals from the judgment in favor of Stanczyk, she neither contends that the verdict was contrary to the evidence nor raises any point as to his liability.

This case is analogous to those where the defendant urges errors which relate to the question of damages but does not contend that the damages are excessive: Powell v. Goldman, 72 Ill App2d 439, 219 NE2d 666 (1966); Gardner v. Railway Exp. Agency, 274 Ill App 626 (1934). In those cases, the court held that the alleged errors were waived.

A court of review will reverse for only such error or irregularity as may be prejudicial to the party complaining; it will not reverse for harmless error. Kinsch v. Di Vito Const. Co., Inc., 54 Ill App2d 149, 203 NE2d 621 (1964). In view of the plaintiff’s limited assignments of error, it must be concluded that the errors complained of caused her no harm.

The judgments are affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.