text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL BRYANT, Defendant-Appellant.
    First District (4th Division)
    No. 80-3219
    Opinion filed March 25, 1982.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Denise Porn, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Paul Bryant, was indicted for murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 1) and burglary (Ill. Rev. Stat. 1975, eh. 38, par. 19 — 1). After a jury trial, he was found guilty of both offenses and sentenced to 6 2/3 to 20 years for burglary and 500 to 1500 years for murder, the sentences to be served consecutively. Defendant raises the following issues on appeal: (1) whether the delay in taking him before a judge on approved charges at the first scheduled court date contributed to an involuntary confession; (2) whether the trial court’s rulings on the use of prior convictions to impeach him and his offer of proof deprived him of his constitutional right to present a defense, and whether this combination of errors requires reversal; and (3) whether his sentence for murder was excessive and vindictive.

We affirm.

Testimony at the hearing to suppress statements made by defendant established the following.

James Jones, James Biebel and Michael Atkins, investigators for the Chicago police department, arrested defendant Bryant on August 9,1979, at about 5:15 a.m. in the area of 535 West Addison Street, in Chicago. Jones advised defendant of his right to remain silent. Defendant was driven to an address on North Pine Grove where he was identified by a rape victim as her assailant.

Defendant was then taken to police headquarters. While in the police car, Jones gave defendant Miranda warnings by reading from a preprinted card. After reading each right, Jones asked defendant whether he understood the right, and defendant said that he did. Defendant was taken to an interview room and handcuffed to a security hook on the wall. Jones and Biebel talked with defendant for approximately 2 hours.

At about 9 a.m., one of the policemen contacted the State’s Attorney’s felony review section. At 10 a.m., an assistant State’s Attorney, Michael Robbins, came to the station and advised defendant of his constitutional rights. Robbins did not observe any physical injuries on defendant nor did he observe anyone strike, abuse, make a promise to, or threaten defendant. When asked by Robbins whether anyone had threatened or mistreated him, defendant said no one had.

Between 11 a.m. and 1:30 p.m., defendant was placed in several lineups. That afternoon from 2:30 to 4:30, Jones and Biebel talked with defendant. At 5 p.m., Jones, Biebel and Atkins took defendant to a restaurant for dinner. They also drove defendant to places, which he wanted to point out to them, where he had committed other crimes. The officers returned defendant to the interview room about 8 p.m. when he was allowed to see his stepfather and other members of his family. At 10:30 p.m., defendant was taken to the lockup.

At 12:30 p.m. on August 10, 1979, defendant was returned to the interview room. Jones gave defendant Miranda warnings, reading from a preprinted card. Officers Jones and Biebel talked with defendant for about 2 hours. At 5:30 p.m., defendant was introduced to homicide investigators John Philbin and Thomas Stevens. Philbin read Miranda warnings to defendant. The officers’ conversation with defendant lasted approximately Pi hours after which the officers left to eat. When they returned around 8 p.m., they brought food for defendant. Members of defendant’s family again visited with him for 2 hours.

At 10 p.m., defendant stated that he wished to continue to tell the police about the crimes he had committed. Defendant was taken to two addresses on North Kenmore and then returned to the interview room where he was again advised of his constitutional rights. Defendant said that he was still willing to talk. Investigator Philbin called the felony review section of the State’s Attorney’s office and Nicholas Faklis, an assistant State’s Attorney, came to police headquarters. At about 1 a.m. on August 11, 1979, Faklis gave Miranda warnings to defendant and summoned a court reporter. In the presence of the court reporter, Investigators Jones and Philbin, and assistant State’s Attorney Faklis, defendant made two statements. Before each statement, defendant was given Miranda warnings. Defendant read each statement and signed them.

The police officers testified that they did not see anyone strike defendant nor did they themselves strike him. No threats, promises or misrepresentations were made to defendant, and there was no mention made of psychiatrists. Faklis testified that he observed no mistreatment, heard no promises, threats or mention of psychiatrists.

A police report indicated that defendant was scheduled to go to court on August 10, 1979, at 11 a.m. but that the police put a “hold” on defendant because he had informed them of numerous serious crimes he had committed. During the evening of August 9, accompanied by policemen, defendant pointed out places where he had committed those crimes.

At the hearing, defendant said that on the way to the police station he was told to keep his mouth shut. He did not remember seeing assistant State’s Attorney Robbins on the morning of August 9. He saw his stepfather for 30 minutes and told him he wanted a lawyer. Later, defendant also saw his girlfriend and their son. When defendant was taken back to the interview room after appearing in lineups, Officer Biebel came in with a folder containing photographs of a dead person. Biebel said that sooner or later defendant would have to tell the truth and that defendant would get psychiatric help if he cooperated. Defendant was told he would “get no more than 2 or 3 years in a mental institution.”

According to defendant, Officer Biebel threatened, slapped, and kicked him while Officer Jones was out of the room. Biebel also promised to secure help for defendant if defendant would cooperate. When Biebel left the room, Jones would come in and tell defendant he “could keep Biebel off” defendant only if defendant talked. When Biebel brought more photographs, defendant said he knew nothing about them.

Defendant stated that he was not taken to a restaurant on the evening of August 9,1979, and he did not leave .the station that night. On August 10, when defendant was returned to the interview room, Biebel began beating him after Jones left. Biebel hit him in his ribs and side and kicked him for about 20 minutes. On the evening of August 10, defendant was taken to an address on North Kenmore.

Defendant was uncertain as to when he signed the statement. He did not know whether or not assistant State’s Attorney Faklis gave him Miranda warnings. Faklis did not ask defendant whether he had been treated well. Defendant said that he signed the statement but did not get a chance to read it.

At the close of the hearing, the court denied the motion to. suppress statements made by defendant.

Testimony at trial established the following.

On November 16, 1976, at about 8 p.m., Susan Dietz went to the apartment hotel where her mother, Frances Parro, lived. The building is located at 5417 North Kenmore, in Chicago. When Dietz attempted to contact her mother by calling her on the lobby phone, a woman answered. Dietz asked the woman to bring Parro to the telephone. When the woman returned, she said, “My God, I think she’s dead. She is laying in a pool of blood.”

Parro was found lying on her back with a large gaping wound in her neck. She wore a sweater, a dress, which was pulled up about her waist, and pantyhose which were split and pulled down around her knees. The lower portion of her body was exposed. Police recovered a blood-stained towel and a Chicago Tribune newspaper dated November 16, 1976. No fingerprints were recovered and there was no sign of a forcible entry. The medical examiner gave as the cause of death a slash wound of the neck.

Officer James Jones testified that on August 10,1979, around 1 p.m., defendant, after Miranda warnings, informed him and Officer James Biebel that he had once killed a woman in November 1976 in a building at 5417 North Kenmore. Defendant had killed the woman during a burglary. Officer John Philbin also testified that defendant had confessed to the Parro murder. Emmett Smith, a court reporter, and Nicholas Faklis, an assistant State’s Attorney, described the circumstances under which defendant made two statements and signed them in their presence. Defendant’s confession was then introduced into evidence.

Defendant’s confession was made at 1:26 a.m. on Saturday, August 11,1979. Those present besides defendant were Faklis, Jones, Philbin, and Smith. Miranda warnings were given to defendant which he said he understood. Defendant stated that on the evening of November 16, 1976, he went to 5417 North Kenmore to burglarize any apartment. Defendant’s cousin, Joe Patterson, lived in the building. His cousin was not at home, so defendant went up to the fifth floor and listened at doors and turned knobs to see whether the doors would open. Defendant wore burglar’s gloves. When defendant came to a door that was unlocked, he went in. No one was in the apartment. While looking around for valuables, an elderly woman entered. When she saw defendant, she asked him what he was doing there and what he was looking for. As defendant walked passed Parro to get to the door, she grabbed him and began screaming for help. During the struggle, defendant cut Parro’s throat with a pocket knife. Thereafter, defendant grabbed a towel and wiped off the blood. Then he ripped Parro’s pantyhose and cut off her panties. Defendant did not sexually molest the dead victim because he was afraid someone might enter. Defendant then left the building.

At the end of the statement, defendant said that he had been fairly treated. At 4:37 a.m., defendant signed the statement which was also signed by Jones and Faklis.

The defense made an offer of proof which was denied by the court. The defense introduced a picture of the room in which defendant was interviewed. Kevin and Joseph Patterson, cousins of defendant, testified that on the day of the murder, defendant was with them at the house of Kevin’s aunt. A motion to exclude defendant’s five prior rape convictions was denied. But, on the next day, the prosecution stated it would be willing to stipulate to the count of rape in five indictments and not include other charges so that defendant would be able to present his defense. The defense asked for a continuance to Monday which the court denied, saying it would allow the defense 30 minutes to prepare defendant to testify. Defendant did not testify in his own defense. The jury found him guilty of burglary and murder. He was sentenced to 6 2/3 to 20 years for burglary and 500 to 1500 years for murder, the sentences to be served consecutively.

Defendant’s first contention is that the delay in taking him before a judge on approved charges at the first scheduled court date contributed to an involuntary confession. Defendant was scheduled to appear in court on rape charges at 11 a.m. on August 10,1979. But, the police put a “hold” on him because he had informed them of numerous serious crimes he had committed. According to defendant, this delay, together with alleged physical mistreatment and psychological pressures, rendered his confession in the early morning hours of August 11 involuntary and, therefore, inadmissible. In defendant’s opinion, if he had been taken to court as originally scheduled, the judge would have informed him of his right to counsel and a public defender would have been appointed.

Defendant’s argument is without merit for two reasons: (1) the trial court properly found that defendant’s confession was voluntarily made, and (2) the delay in charging defendant was reasonable.

Defendant’s allegations of physical mistreatment and psychological pressures were uncorroborated. Defendant had been given Miranda warnings at least five times before he made the statement. When defendant was informed of his rights, he stated that he understood them. His decision to make a statement and not to request a lawyer is sufficient evidence that he knew his rights and chose not to exercise them. (People v. Higgins (1972), 50 Ill. 2d 221, 227, 278 N.E.2d 68, 72.) The trial court’s finding that defendant’s confession was voluntarily made will not be disturbed upon review unless it is contrary to the manifest weight of the evidence. (People v. Donalson (1977), 50 Ill. App. 3d 678, 687, 365 N.E.2d 658, 664-65.) We hold that the trial court’s finding of voluntariness is not contrary to the manifest weight of the evidence.

Hlinois law (Ill. Rev. Stat. 1979, ch. 38, par. 109 — 1) provides that a person arrested without a warrant shall be taken before a judge without unnecessary delay. In the instant case, defendant had admitted that he had committed other serious crimes. It was reasonable for the police to investigate these other crimes before formally charging defendant. Police have reasonable latitude to fully investigate a crime. (People v. Jackson (1961), 23 Ill. 2d 274, 280, 178 N.E.2d 299, 302.) Furthermore, delay does not render statements made before defendant was charged per se inadmissible, but is just one circumstance to be considered in determining the voluntariness of a statement. (People v. Jackson (1961), 23 Ill. 2d 274, 280.) Therefore, we hold that defendant was taken before a judge without unreasonable delay.

At trial, defendant made an offer to introduce evidence that Joseph Conard might have murdered Parro. Conard had been evicted from the building and had been a suspect in the murder because he had assaulted two residents of the building. According to police reports, a bracelet with blood and human hair on it had been found in Conard’s apartment together with a key that fit the front door of the building at 5417 North Kenmore. A resident of the building had told police that she had seen Conard and Parro together several times. The defense attorney wanted to call the police officers who made the reports containing this information. Defendant urges that this hearsay testimony should have been admitted under Federal Rule of Evidence 804(b)(5) because it was taken in circumstances which guarantee its trustworthiness.

Evidence connecting a third person with the commission of a crime may be shown if and when the third person has been closely linked to the commission of that crime. (People v. King (1978), 61 Ill. App. 3d 49, 52, 377 N.E.2d 856, 859.) In this case, defendant did not show that Conard was closely linked to the Parro murder. Police released Conard when they found no evidence in his apartment linking him to the crime and when he passed a polygraph examination. Furthermore, the statements made to the police were remote in time, having been made in November 1976 when the crime occurred, 4 years before the trial. None of the witnesses were available to testify and their statements were inadmissible hearsay. The statements were not made under oath and there were no guarantees of their trustworthiness. We conclude, therefore, that the trial court properly rejected defendant’s offer of proof.

Defendant’s next contention is that it was error for the trial court to change its ruling with regard to the use of prior convictions to impeach defendant. On Thursday, November 20, 1980, the court ruled that defendant could be impeached with all 26 counts of a previous indictment. These counts included rape, burglary, deviate sexual assault, home invasion, and robbery. On the next day, the prosecution stated that it would limit impeachment of defendant to five prior rape convictions so that defendant could testify. The court allowed the defense attorney one-half hour to prepare. Defense counsel claimed this was insufficient time and did not put defendant on the stand. On appeal, defendant claims this ruling denied him the opportunity to explain the circumstances of his confession.

In People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695, 698, our supreme court held that prior convictions may be admitted to impeach defendant when three conditions are met: (1) the prior conviction was punishable by death or imprisonment in excess of 1 year or was a crime involving dishonesty or false statement; (2) no more than 10 years has elapsed since the date of conviction or the release of the witness from confinement, whichever is the later date; and (3) the trial court determines that the probative value for impeachment purposes is not substantially outweighed by the danger of unfair prejudice.

In the instant case, use of the prior convictions meets all these requirements. The prior convictions all were felony convictions which were less than 10 years old. The trial court held that they were material. The convictions were probative of defendant’s credibility and outweighed the danger of unfair prejudice. Therefore, we hold the trial court’s ruling that the five prior convictions might be used to impeach defendant if he chose to testify was proper. Defendant waived his right to testify and was not precluded from presenting his coerced confession defense to the jury.

Defendant’s final contention is that his murder sentence of 500 to 1500 years is excessive because it precludes any restoration of defendant to useful citizenship. The Illinois Constitution provides that all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (Ill. Const. 1970, art. I, §11.) This requires balancing between the interest of protecting society and the possibility of rehabilitation of the offender. (People v. Belcher (1980), 92 Ill. App. 3d 237, 243, 415 N.E.2d 1120, 1125.) The imposition of a sentence is a matter of judicial discretion. Absent an abuse of that discretion, a reviewing court will not alter the sentence imposed. People v. Belcher (1980), 92 Ill. App. 3d 237, 243.

The trial court observed defendant during the trial, heard the evidence against him, including his signed confession, considered the nature of the murder, and the presentence report showing defendant’s previous convictions. We hold that the trial court did not abuse its discretion in imposing the sentence.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, Trustee, et al., Plaintiffs-Appellants, v. CONTINENTAL CASUALTY COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-57
    Opinion filed March 25, 1982.
    Rehearing denied May 6, 1982.
    Paul J. Cronin, of Chicago, for appellants.

      Daniel Nagle, of Chicago, for appellees M. L. Ensminger Company and John B. Schreiber, Sr.
    Clausen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (James T. Ferrini, William J. Schaefle, Elizabeth Pendzich, and Robert H. Mittelman, of counsel), for appellee Continental Casualty Company.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs in this cause are American National Bank & Trust Company of Chicago (American National) and the Shore Heights Village Partnership (Shore Heights). American National, as a land trustee, was the owner of a 168-unit apartment complex in Kendall County, near Oswego, Illinois. Shore Heights, the beneficiary of the trust, is a limited partnership with Kenneth Ringbloom and American Contractors, Inc., as the general partners. A fire on February 4, 1976, caused near total destruction of a 24-unit building in the complex.

Events stemming from the aftermath of the fire prompted this action against the defendants, Continental Casualty Company (Continental) and M. L. Ensminger Company, Inc. (Ensminger). Continental insured the property for rental loss due to necessary untenantability as a result of the fire. Rental loss coverage was limited to one year. Ensminger contracted with the plaintiffs to repair the damaged property.

Continental paid the plaintiffs for loss of rent covering a 10-month period. The plaintiffs brought this action against Continental for loss of rent for an additional two months. The trial court directed the verdict in favor of Continental at the conclusion of the plaintiffs’ case. The complaint against Continental also contains a count alleging that Continental interfered with the contractual relationship between the plaintiffs and Ensminger. The trial court dismissed that count prior to trial. The plaintiffs appeal both the directed verdict and the dismissal.

The plaintiffs’ action against Ensminger alleges that Ensminger breached its contract by failing to complete repairs within the 4-month period provided in the contract. There are also allegations that the repairs performed by Ensminger were done negligently and improperly. The plaintiffs allege that as a result of Ensminger’s conduct the building was totally uninhabitable through February 1977, a year after the fire, and partially uninhabitable through December 1977, resulting in a rental loss of $18,000. The plaintiffs expended $15,000 to complete the repairs. The trial court directed the verdict in favor of Ensminger and against the plaintiffs at the conclusion of the plaintiffs’ case. The plaintiffs appeal from the directed verdict. The particular details of each issue will be related as they are considered.

The plaintiffs complain that the court was in error in directing the verdict in favor of Continental because there existed a question of fact which should properly have been brought before the jury. The contract of insurance between the plaintiffs and Continental provided that the coverage for rental loss due to necessary untenantability as a result of the fire damage to the insured property was limited to “that period of time only, commencing with the date of the damage or destruction * * * as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace the damaged or destroyed property,” but not exceeding 12 months. (Emphasis added.) Kenneth Ringbloom, the plaintiffs’ representative, on the recommendation of a claims adjuster for Continental, signed a contract with Ensminger on February 11, 1976, seven days after the fire. The contract provided that the restoration was to be completed “in accordance with the terms and conditions of the policy of insurance in force.” Ensminger was to receive the insurance proceeds other than the coverage for rent. The work was to be completed “in a time frame of four months.” Ringbloom, who owned all the stock in American Contractors, Inc., testified that four months seemed reasonable if he had done the work. The agent for Ensminger testified that at the time the work was contracted, he considered four months reasonable. He also testified as to problems with his subcontractors. The work was not completed within four months. Continental made rental loss payments for a 10-month period ending on December 4,1976. Continental claims that the property was ready for occupancy by October 1976, and that only some touch-up work remained to be done. It is Continental’s contention that any delay beyond November 1976 was Ensminger’s fault and further that the difficulty in renting the building was because of slow market conditions. Continental also contends that the apartments were in fact rented in October 1976.

We do not believe that the evidence, when viewed most favorably to the plaintiffs, so overwhelmingly favored Continental that no contrary verdict could stand. Consequently, the court erred in directing the verdict in favor of Continental. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The issue is whether the plaintiffs acted with due diligence and dispatch in repairing the damage to the property. The property was not in fact repaired within four months. The testimony of Ringbloom and Ensminger’s agent when they entered into that contract as to what was reasonable is certainly a question to be considered by the trier of fact on the issue of plaintiffs’ diligence but was not conclusive as is suggested by Continental. There was other evidence bearing on that issue. The contract to repair was made with Ensminger, a contractor recommended by Continental. That contract was made within a week after the fire. Once the contract had been let to an independent contractor, there was little that the plaintiffs could do to control the work. The jury would be instructed to consider the evidence in the light of their own observations and experiences in the affairs of life. (Illinois Pattern Jury Instructions, Civil, No. 1.04 (2d ed. 1971).) The disparity between the times within which construction is scheduled to be done and is in fact done is part of the experience in life of most people. The jury could consider those experiences in determining whether or not the plaintiffs had acted with due diligence in rebuilding and repairing the building.

Continental claimed as a defense that the property was rented in October 1976. Continental points to the testimony of the manager of the plaintiffs’ building, Philip Poninski, who said in a somewhat confused bit of testimony on cross-examination while looking at an exhibit that 14 units were rented in December 1976. However, Poninski later testified far more clearly that he examined the units at the end of January 1977, and none of them were occupied. Further, he explained that the exhibit to which he had been referring when he testified that the units were rented showed that leases had been signed and that the money received was either an advance rental payment or a security deposit. This testimony should be evaluated by the trier of fact, the jury. The directed verdict in favor of Continental at the conclusion of the plaintiffs’ case is reversed and the cause is remanded.

The plaintiffs’ claim against Ensminger is twofold. They alleged that Ensminger failed to repair and restore the property within the four-month time frame provided for in the contract and also that the work was negligently done. The plaintiffs claim that they were damaged because they had to redo and complete many of the repairs with their own money and further that they lost rent. Ensminger responds that time was never of the essence of the contract so that the building did not have to be completed within four months. Even if time is not of the essence the contract must be performed within a reasonable time. (3A Corbin, Contracts §720, at 377 (1960).) What constituted a reasonable time was a question of fact for the jury.

Ensminger also makes the argument that the plaintiffs cannot prove that they were damaged because they had received 10 months’ rent from the proceeds of the fire insurance policy even though the building was occupied within that 10-month period. We indicated before in considering a similar argument by Continental that there was evidence that none of the units were occupied at the end of January 1977. Further, on February 1,1977, a compression fitting on a pipe under one of the vanities which had been installed by Ensminger disconnected, causing water to flood that unit and leak downstairs flooding three more apartments on the first floor. Three weeks later, as a result of the deterioration of the drywall caused by that leaking water, the ceilings of several of the downstairs apartments bowed and one of the ceilings collapsed. Although Ensminger claims that the plaintiffs failed to show that it was responsible for the water damage, the record shows that on February 1,1977, Ensminger was in control of the property. Ringbloom testified that he had a conversation with a representative from Ensminger and that they discussed the repairs to be made because of the water damage. Ringbloom further testified that the representative said he would finish the drywall as per the contract. All of this evidence on the issue of whether the plaintiffs sustained damage was for the jury to consider.

The plaintiffs’ final contention is that the trial court erred in striking count VI of the complaint for failure to state a cause of action. Essentially, count VI alleged that Continental intentionally interfered with the plaintiffs’ contract with Ensminger by paying the property loss proceeds of its insurance contract directly to Ensminger in violation of the loss payable clause of its insurance contract. That clause requires adjustment with and payment to its named insured, American National. The plaintiffs claim that as a result of this intentional interference they lost the power of withholding the insurance proceeds as a means of enforcing Ensminger’s completion of its contract. Count VI thus sought consequential damages in the amount of the rental loss beyond the 12-month period of coverage extended by Continental and punitive damages due to the intentionally tortious nature of Continental’s conduct.

The elements of the tort of intentional interference with contractual relationships are: (1) the existence of a valid and enforceable contract; (2) the defendant’s knowledge of the existing contract; (3) intentional and malicious inducement of the breach; (4) the subsequent breach by the third person due to the defendant’s wrongful conduct; and (5) damage to the plaintiff. (Bergfeld v. Stork (1972), 7 Ill. App. 3d 486, 288 N.E.2d 15.) Although count VI alleges that Continental committed intentional acts which “deliberately interfered” with the plaintiffs’ rights under the contract with Ensminger, there is no allegation that these acts were intended to or did in fact “induce” Ensminger to breach the contract. Since the essential element of inducement is not alleged, we believe that the trial court properly dismissed count VI. See Bergfeld v. Stork.

The plaintiffs correctly assert that Continental’s motion to dismiss count VI alleged as its sole basis the theory that a policyholder has no cause of action in tort against its insurer for the intentional interference with contractual relationships. It should be noted that Continental does not make this argument on appeal. The plaintiffs argue that had Continental challenged count VI on the basis that it failed to allege inducement, the plaintiffs would have had ample opportunity to amend count VI to properly set forth this element. We are sympathetic to this argument and therefore remand count VI to the trial court with directions to allow the plaintiffs leave to amend. For the foregoing reasons, the judgment of the circuit court is reversed and remanded with directions.

Reversed and remanded.

JOHNSON, P. J., and ROMITI, J„ concur.


text:
    THE CITY OF CHICAGO ex rel. JANICE COHEN, Plaintiff-Appellant and Cross-Appellee, v. THOMAS E. KEANE, Defendant-Appellee and Cross-Appellant.—(ADELINE KEANE etal., Defendants-Appellees.)
    First District (4th Division)
    No. 81-516
    Opinion filed March 25, 1982.

      James E. Beckley and Mary E. Keefe, both of Chicago, for appellant.
    Samuel S. Brown, of Chicago, for appellee John Hennessey.
    Jerome H. Torshen, of Chicago, for appellee Thomas E. Keane.
    Abigail K. Spreyer, of Chicago, for appellee Adeline Keane.
   JUSTICE JIGANTI

delivered the opinion of the court:

This taxpayer’s suit was brought against the defendants, former city councilman Thomas E. Keane (Keane), his wife, Adeline Keane, and John Hennessey, Sr., to obtain an accounting and to recover profits allegedly obtained through a fraudulent scheme involving property sold for delinquent taxes in Cook County, Illinois. The defendants were partners in entities which purchased properties at the tax sales. A summary judgment motion presented by the plaintiff was granted as to the liability of Keane to account for any profits he may have received as a result of these transactions. The plaintiff then petitioned the court for an interlocutory decree of accounting. This motion was denied on the grounds that an accounting was already in evidence as a result of Keane’s Federal criminal trial. This will be explained more fully later in the opinion. The case proceeded to trial on the issues of liability as to Adeline Keane and Hennessey and on the issue of damages. On motions by the defendants at the close of the plaintiff’s case, a directed verdict was entered in favor of the defendants and against the plaintiff. The trial court denied the plaintiff’s motion for a new trial and this appeal followed.

The primary issue on appeal is whether the trial court erred in denying the plaintiff’s motion for an accounting after granting summary judgment on the issue of Keane’s liability. The plaintiff also claimed that the court erred in finding that the plaintiff failed to show that the defendants profited from the fraudulent scheme, in directing a verdict in favor of Hennessey and Adeline Keane on the issue of liability, and in denying the plaintiff’s motion requesting sanctions against Adeline Keane and Hennessey for failure to produce certain documents at trial.

On November 18,1974, a judgment was entered against Keane in the United States District Court for the Northern District of Illinois following a jury verdict finding him guilty of 17 counts of mail fraud and conspiracy to commit mail fraud in violation of 18 U.S.C. §§1341, 371. The mail fraud conviction was affirmed on 14 counts and reversed on 3 counts in United States v. Keane (7th Cir. 1975), 522 F.2d 534, cert. denied (1976), 424 U.S. 976, 47 L. Ed. 2d 746, 96 S. Ct. 1481. The complaint in the instant cause tracks the Federal indictment, absent the allegations of mail fraud. Basically, the complaint alleges that Keane, as a city councilman, owed a fiduciary duty to the City of Chicago. He, along with Hennessey and Adeline Keane, devised a scheme to defraud the city by establishing three investment companies, Alpine, THAK and Wabash, which would purchase parcels of property at tax sales for resale at a profit. The complaint states that Keane then violated his fiduciary duty by using the power and influence of his public office for personal profit in the following ways: utilizing his position as chairman of the city council finance committee to obtain advance information as to which parcels would be most profitable on resale; influencing the special assessments subcommittee of the finance committee to set minimal bids with respect to foreclosures of special assessment liens; introducing and voting affirmatively on lien clearances in the city council for properties acquired by the investment companies without disclosing his interest or the interest of his partners; and exerting undue influence in sales and attempted sales to the Chicago Housing Authority and Chicago Dwelling Association. The complaint then recites that there is no adequate remedy at law and asks that the defendants be ordered to account for all profits they had received.

On September 25, 1979, the day before the trial was scheduled to begin, the plaintiff sought to file a motion for summary judgment on all issues including both liability and damages. Judge Nathan M. Cohen hesitated over allowing the plaintiff to file the motion at that late date because Judge Cohen was scheduled to leave the bench on October 31,1979. The plaintiff then represented to Judge Cohen that she would stand on the motion regardless of the court’s ruling and would proceed immediately to trial. The plaintiff further represented to the court that any proof at trial would be limited to having the defendants identify themselves as the same persons involved in the criminal trial and offering into evidence the judgment entered in the Federal district court, the United States Court of Appeals opinion and the record of the criminal proceedings. Based upon these representations, the court agreed to rule on the motion for summary judgment. On October 17, 1979, after considering the memoranda and exhibits filed in support and in opposition to the motion and the record of the Federal criminal trial, the court found that, based upon the doctrine of collateral estoppel, Keane was responsible to account for any profits he received. The court declined however, to grant the plaintiff’s motion with respect to the liability of Hennessey and Adeline Keane. On the issue of damages, the court refused to enter judgment for the plaintiff, stating that although the United States Court of Appeals opinion noted a gross profit of $167,471.30, “[pjrofit, ‘gross’ or ‘net’ was not an element of proof necessary to a determination of the ultimate issue in any count of the indictment.”

After this ruling, the plaintiff requested an interlocutory decree of accounting, ordering Keane to account for all monies received in connection with the activities of Alpine, THAK and Wabash investment companies. The court denied the motion, reminding the plaintiff that she represented to the court that she would prove her case using the evidence which was presented at the Federal criminal trial. Specifically, the court stated:

“Well, that [i.e, the accounting] is in evidence in the federal case. You have relied heavily on it, his accounting, and the federal case shows a loss of $26,000 and some dollars. You may wish to do that in some formal fashion, and that will be your accounting here.
* * * I don’t expect you to engage in a process of discovery. You represented to this court you were ready, and you also represented to the court that the trial would be very, very brief and wouldn’t unduly inconvenience this court. In return for that promise, and in reliance on that promise, I said you could file your motion and I would rule on it, and I have.
e e e
Now in the course of that trial the appellate court made a note
* 0 * in its opinion of the proof with respect to gross receipts that was offered by the government, received by the court, and approved by the defendant with respect to his net loss * * * on those transactions. Now it seems to me you should proceed on that basis here. And I don’t know why you haven’t done so.”

On October 18,1979, the trial proceeded on the issue of liability as to Adeline Keane and Hennessey, and on the issue of damages. The plaintiff introduced into evidence the record of the Federal criminal trial which included books and records from Alpine, THAK and Wabash investment companies. Keane also produced a three-page summary of loss or gain from Alpine and THAK and an agreement reflecting the sale of Keane’s interest in Alpine to Nathan Schwartz. Keane’s partnership tax returns were produced at trial as were the personal joint income tax returns of Keane and Adeline Keane, which were examined in camera by the court. Keane, Adeline Keane and Hennessey were called and questioned as adverse witnesses. At the close of the plaintiff’s case, the court made a finding in favor of Adeline Keane and Hennessey on the issue of their liability and in favor of all three defendants on the issue of damages. The plaintiff’s motion for a new trial was denied on the grounds of lack of diligence.

Although there is some question concerning the ruling on the post-trial motion on procedural grounds, the parties agreed at oral argument that the cause is properly before this court.

The main issue in this appeal is whether the trial court erred in denying the plaintiff’s motion for an interlocutory decree ordering the defendants to render an accounting. Citing Schane v. Conrad (1979), 68 Ill. App. 3d 961, 386 N.E.2d 431, the plaintiff contends that the trial court’s determination that the defendants did not incur any profits as a result of their scheme to defraud the city was based upon insufficient data. The defendants take the position that the trial court correctly perceived that an accounting had already been made in the Federal criminal proceeding and that the plaintiff failed to show how that accounting demonstrated a profit to the investment companies involved in the wrongful transactions.

The court in Schane v. Conrad (1979), 68 Ill. App. 3d 961, 386 N.E.2d 431, discussed the procedure to be followed when an accounting is requested as one of the elements of relief. Basically, the court is to conduct two separate hearings. The purpose of the first hearing is to establish the duty to account of the party from whom an accounting is sought. At the second hearing, the party required to account must come forward with detailed evidence of the transactions in question. The plaintiff then has the opportunity to object to any items listed in the accounting and to use the accounting to show the amount due from the defendant. The Schane court also stated that the second hearing, which encompasses the actual accounting procedure, should have its own attendant phase of discovery.

The plaintiff argues that based upon the Schane case, once the trial court made a finding of liability as to Keane, it should have granted the plaintiff’s motion for an interlocutory decree of accounting and allowed the plaintiff to engage in a second stage of discovery at that time. We believe that based upon the representations made by the plaintiff to the trial court concerning the course of the trial and the evidence to be presented, the trial court did not abuse its discretion in denying the interlocutory decree of accounting.

As previously mentioned, Judge Nathan B. Cohen was scheduled to leave the bench on October 31, 1979. He agreed to rule on the plaintiff’s motion for summary judgment, presented on the eve of trial, only because the plaintiff represented to him that she intended to stand on the motion, regardless of the court’s ruling. The motion, which sought judgment as to both liability and damages, was then filed along with memoranda in support and opposition. Attached to the plaintiff’s memorandum supporting the motion were a certified copy of the judgment in the Federal criminal trial, a certified copy of the United States Court of Appeals opinion and a copy of the Federal indictment. At oral argument on the motion, the plaintiff stated that in the Federal proceeding “[t]he government introduced evidence and the jury found [that] defendant Keane’s [gross] profit was at least $167,471.30.” The plaintiff then presented the court with cases to support her position that judgment should be entered against Keane for this amount and that no credit should be given for taxes, sales commissions, overhead and other costs incurred by Keane in dealing with the properties.

After the court ruled on the motion for summary judgment, it advised the plaintiff that it expected her to proceed immediately to trial. The court stated that it intended to hold her to her representation that the trial would be a perfunctory matter, that she would simply call the defendants to identify themselves as the parties involved in the Federal criminal trial, introduce into evidence the record of that trial and rest her case on that evidence. At that point, the plaintiff requested the court to order the defendant to proceed forward with an accounting. The trial court refused, stating “I don’t expect you to engage in a process of discovery. You represented to the court you were ready, and you also represented to the court that the trial would be very, very brief. * * * In return for that promise, and in reliance on that promise, I said you could file your motion and I would rule on it and I have.” The court also reiterated its understanding that the plaintiff intended to prove her case based upon the evidence introduced at the criminal trial. This understanding is borne out by the following exchange between the court and the plaintiff’s attorney:

“The Court: [W]hat you said was — and you will be held to it 000 that you intended to call Thomas Keane and ask him to identify himself as the same person who was named in the federal case and to offer the court’s ruling, the judgment entered on the verdict in the district court case and the appellate court’s affirmance and the denial of certiorari, and that you would rest. Weren’t those your representations to me?
[Plaintiff’s attorney]: Your Honor, as I remember, I told the court that I would also introduce the record of the criminal proceeding — and those are the books of account of THAK and Alpine and at that point, I will request that we be given a certain period of time to give you a figure on the gross profit, which is just a number accounting.”

On October 18,1979, the day after this conversation took place, the plaintiff again moved for an interlocutory decree ordering the defendant to account. The court denied the motion, and the cause proceeded to trial. We are mindful that the actions of the trial court did not comport with the procedures set forth in Schane v. Conrad (1979), 68 Ill. App. 3d 961, 386 N.E.2d 431. However, we do not believe that the court abused its discretion in denying the motion for an accounting and holding the plaintiff to the representation she made concerning the course of the trial and the nature of the evidence to be presented.

The plaintiff also claims that the trial court’s finding that the plaintiff failed to prove any profit accruing to the defendant was against the manifest weight of the evidence. Specifically, she contends first, that the court erred by relying on dicta from the United States Court of Appeals opinion in United States v. Keane (7th Cir. 1975), 522 F.2d 534, cert. denied (1976), 424 U.S. 976, 47 L. Ed. 2d 746, 96 S. Ct. 1481. Second, she claims that the court erred in giving credence to losses created by a less than arm’s length transaction in which Keane sold his interest in Alpine Investments to Nathan Schwartz.

We find no merit in the plaintiff’s first contention. It is true that the court referred to the United States Court of Appeals’ observations that the evidence before it revealed a “gross profit of $167,471.30,” and a “net loss of $26,032.07 for all transactions involving THAK and Alpine properties.” (United States v. Keane (7th Cir. 1975), 522 F.2d 534, 543-44.) However, the trial court explicitly acknowledged that these figures were not controlling because “[p]rofit, ‘gross’ or ‘net’ was not an element of proof necessary to a determination of the ultimate issue in any count of the indictment.” During the trial, the court received into evidence the record of the Federal criminal trial, which included books and records of Alpine, THAK and Wabash investment companies. He also considered Keane’s three-page summary of loss or gain from Alpine and THAK and the agreement reflecting the sale of Keane’s interest in Alpine. The court ordered that Keane’s partnership tax returns be produced at trial. He also conducted an in camera inspection of the personal income tax returns of Thomas and Adeline Keane. The plaintiff had an opportunity to examine Keane as to the validity of these items. There is no indication in the record that the court chose to ignore the evidence and rely instead upon the observations of the Seventh Circuit Court of Appeals.

In regard to the second contention, we feel that the evidence was sufficient to support the trial court’s finding that the sale of Keane’s interest in Alpine to Schwartz created a bona fide loss. There was evidence before the court that Keane’s interest was transferred after extensive negotiations between Keane and Schwartz, with attorney Harry Ruben-stein acting as a go-between.

Because we agree with the trial court’s finding that the plaintiff failed to prove any profits accruing to Keane, we find it unnecessary to consider Keane’s cross-appeal on the issue of liability. (See Kane v. Nomad Mobile Homes, Inc. (1967), 84 Ill. App. 2d 17, 228 N.E.2d 207.) The same is true as to the liability of Hennessey and Adeline Keane. It appears that the evidence upon which the plaintiff sought to establish damages encompassed the transactions of all three of the investment companies involved in the wrongful transactions. The trial court found that the evidence failed to show any profits resulting from those transactions and this court, in our earlier discussion, held that this finding was supported by the manifest weight of the evidence.

The plaintiff’s final contention is that the trial court abused its discretion in denying her motion for the issuance of a rule requiring Adeline Keane and Hennessey to show cause why they should not be sanctioned for failure to comply with a court order prohibiting them from destroying, disposing of, or obliterating records pertaining to the instant cause. The order was entered on September 17,1975, during the pendency of the appeal from the verdict in the federal criminal trial in United States v. Keane (7th Cir. 1975), 522 F.2d 534, cert. denied (1976), 424 U.S. 976, 47 L. Ed. 2d 746, 96 S. Ct. 1481. On October 30, 1979, after the plaintiff rested her case, she moved for sanctions against Hennessey and Adeline Keane, claiming that the books, records and tax returns produced both prior to and during trial were incomplete. At a hearing on the rule to show cause, Adeline Keane stated that she had never been in possession of the books and records requested by the plaintiff, and that she turned over all documents pertaining to Wabash which she could locate. She stated that her copies of the partnership tax returns were turned over to her personal accountant who died before entry of the order of September 17,1975. She could not locate any copies of those returns and did not remember the name of the person who prepared the Wabash partnership returns. Hennessey stated that at the time the order was entered, all the books and records in his possession which were pertinent to this cause had been delivered to the United States Attorney for the Northern District of Illinois, pursuant to a subpoena served upon Hennessey in the matter of United States v. Keane. On September 13, 1979, the plaintiff served Hennessey with a notice to produce at trial all of the books and records in his possession and control. Hennessey claimed that pursuant to this notice he did turn over all the books and records of Alpine, THAK and Wabash that had been returned to him by the United States Attorney. At the conclusion of the hearing, the court refused to impose sanctions against Hennessey and Adeline Keane. It is a general rule that imposing sanctions against a party for noncompliance with discovery rules is within the discretion of the trial court. (See Reske v. Klein (1962), 33 Ill. App. 2d 302, 179 N.E.2d 415.) We believe that it was within the discretion of the trial judge to find that these defendants complied as fully as possible with the discovery order.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: JUSTICE ROMITI

text:
    LANCE E. FONTANNE, Adm'r of the Estate of Kathy G. Fontanne, Deceased, Plaintiff-Appellee, v. FEDERAL PAPER BOARD COMPANY, INC., Defendant-Appellant.
    First District (4th Division)
    No. 81-731
    Opinion filed March 25, 1982.
    Rehearing denied April 26,1982.

      John C. Doyle and Joseph J. McDonough, both of Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago, for appellant.
    Mullen, Clancy & Associates and Katz, Friedman, Schur and Eagle, Chartered, both of Chicago (Thomas A. Clancy, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court;

The plaintiff as administrator of his wife’s estate recovered from the defendant after the tractor-trailer loaded by defendant and driven by plaintiff and his wife overturned, killing her. Defendant appeals, contending:

(1) the deceased was guilty of contributory negligence as a matter of law because Federal regulations put the duty on the driver to be sure the cargo was properly distributed and adequately secured;

(2) the trial court erred in instructing the jury on recovery under the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2), because the husband was gainfully employed;

(3) the court erred in allowing a high-school dropout to testify as an accident reconstruction expert although he has been an accident reconstruction expert for over 18 years and had testified in over 3,000 cases;

(4) the trial court erred in allowing that witness to testify as to the length of marks in the roadway as determined by him from photographs in evidence;

(5) the trial court erred in refusing to strike the testimony of plaintiff’s economist relative to the number of hours expended in a given day, week or month by a typical housewife working outside the home and the dollar value of said service since deceased was no ordinary working housewife;

(6) the trial court erred in allowing an eyewitness to the accident to testify that in response to plaintiff’s statement that he did not know how the accident had happened, the witness had told the plaintiff “it shifted”;

(7) the trial judge after the jury had been deliberating over seven hours erred:

(a) in not giving a Prim instruction although the jury said they believed they were close to a verdict;
(b) in telling the jury he would give it “another twenty minutes or so,” there being no objection to this statement;
(c) in allowing the jury to report, voluntarily, that it had resolved liability but needed more time to discuss damages;
(d) in extending the time for deliberation after this communication, although this extension was not communicated to the jury;
(e) in not declaring a mistrial when the privacy of the jury’s deliberations was breached by communication to the court of the status of those deliberations.

We find that the case was fairly and properly tried and that no error existed, or if there was any error in the admission of testimony, such was not prejudicial error.

While defendant has contended that the case should not have gone to the jury, it does not contend that the verdict is against the manifest weight of the evidence. Accordingly, neither a detailed nor a comprehensive discussion of the occurrence testimony is required. The plaintiff, Lance Fontanne, was born on May 22,1949; the deceased, Kathy Fontanne, was born on July 24, 1951. They were married on July 24, 1971. When they were first married, she worked as a secretary for J & M Electronics. Afterwards she worked for the International Brotherhood of Electricians. She was a high school graduate and had also taken a course in accounting.

In 1975 they became interested in becoming partners as a truck-driving team. They entered into a lease agreement for the purchase of a tractor. They were to receive title to the tractor around October 1977. They began driving in May 1975 and averaged 14,000 miles a month. He was paid 10$ a mile and she was paid 6$ a mile for every mile the truck was driven regardless of which one was doing the driving.

After Kathy became a truck driver with her husband, she spent 28 or 29 days on the road. Even then, she took care of the lawn most of the time and did everything in the house such as cleaning and washing, preparing meals, and cutting plaintiff’s hair. She handled the family finances. She also sewed most of her own clothes. She was very thrifty and probably spent only $25 a week on herself and her personal needs; she wanted to put as much as she could in the bank. They had joint checking and savings accounts; she also had a savings account in her own name. They were purchasing a house under a mortgage.

On March 2, 1976, they went to defendant’s plant in Richmond, Virginia, to pick up a load of paper products bound for Denver, Colorado. Defendant is a manufacturer of paperboard products. They had to wait about V& hours before pulling into a dock area. Once a dock area was open, plaintiff backed the tractor into the dock, went up on the dock and told them he was picking up the load for Denver. He was immediately instructed to go to another office about 300 feet away to take care of the paper work. That office was not visible from the dock. Plaintiff and deceased went to that office, where they made certain necessary telephone calls in connection with the shipment and completed the paperwork.

Robert McCrone, the dock supervisor, testified by evidence deposition that it took between one and two hours to load the truck. The paper products rested on skids that each weighed close to one ton. They were anywhere from 34 to 36 inches in width and 48 to 60 inches in length. They were 50 inches high. There were 17 skids in the load. Although the truck could legally carry about 44,000 pounds, the total weight of this load was 36,000. While several witnesses described the placement of the skids in the truck it is unclear just how they were placed since the witnesses generally referred to photographs of the skids and diagrams which were introduced into evidence; none of these were part of the record on appeal. It does seem clear that the last skid went across the rear of the truck from the left side to the right side. McCrone admitted that the skids were not nailed or connected to the floor or sides of the truck and no boards were used in the empty spaces.

When plaintiff got back to the truck they were just putting the last skid in. He asked for a board or piece of wood to put at the rear of the first set of double skids and a piece of wood on either side of the last skid. He had a hammer and nails with him. They told him “No, we don’t have anything like that around here, and we have got a lot of trucks to load, you have got to take off. We need the dock space, just bring it out there in the yard.” Raymond Lescault, the defendant’s manager, testified that if a driver were to request a piece of wood to block a load, defendant would endeavor to find him one as there were a number of places around the plant where wood was available. However, McCrone testified that they did not have pieces of wood to bind, secure or wedge in against the walls or back of the truck.

Plaintiff upon returning to the dock peered into the back of the truck. At this time he was standing at the dock; that was the same level as the bed of the truck. If he stood to the side he could see beyond the last skid since it did not run all the way to the sides of the truck. Also he could see along the top of the skids. Lescault testified that normally the trucks were loaded before the drivers got there. They looked at already-loaded trucks and inspected the load by just looking at it from the back. Lescault agreed that anything other than a look in from the rear would be impracticable. Very few drivers were going to crawl up on to a load and crawl to the front and look down. The major objection would be the clearance of the load that they would be crawling over and through. Lescault further stated a driver looking in from the back would see what looked like a safe, balanced load. Plaintiff likewise testified he did not notice anything unusual or hazardous about the condition of the load when he looked into the rear of the trailer.

After being told to leave the dock, he pulled the truck out about 100 feet. He then made a safety check of the vehicle and they left. There were no scales at the plant, although many paper companies have them, so he drove about 15 miles to a certified public scale. The load was not balanced, so he had to adjust the trailer tandems to put more weight on the back of the trailer.

At 7:30 a.m. on March 3,1976, they stopped for breakfast in Indiana. They shared breakfast with another over-the-road driver, Morris Chapman. After breakfast, they decided to follow each other for a while. At the time of the accident, Chapman was following plaintiff.

About 30 feet preceding a particular curve, plaintiff, who was driving, noticed a sign indicating a speed of 40 m.p.h. (The previous speed had been 55 m.p.h. but he had actually been going 42 m.p.h.) When he saw the sign he took his foot off the accelerator, put very slight pressure on the brakes and shifted downward. As he approached the curve he felt a small bump; it felt like it was in the tractor-trailer unit. He continued to keep slight pressure on the brakes. His speed would have been somewhat slower than 39 m.p.h. As he started to approach the very beginning of the curve he started to turn the steering wheel. As he touched the wheel, he felt a very heavy jar and a lean to the right. The truck then started to lean hard to the right. The trailer tilted more as it went into the turn and flipped over. Just before the trailer hit, the tractor also flipped over on the passenger side door. Kathy, who had been in the passenger seat, was thrown out and crushed to death.

Chapman had been driving behind the tractor-trailer. As it rounded the curve he noticed that two of the wheels were coming about one foot off the pavement. The trailer rode approximately 30 feet in this position; the tractor very much intact. The trailer at the top burst open in the center. The trailer then turned over. The tractor wanted to stay upright but finally was pulled over by the trailer. Chapman pulled up beside it, jumped out of his truck and helped plaintiff out of the tractor. He told plaintiff his wife was dead. Plaintiff said he could not understand what happened. Over objection, Chapman testified he responded “it shifted.”

Both sides produced accident reconstruction experts, both testifying as to whether the skids moved and caused the tractor-trailer to overturn. An economist also testified for plaintiff as to value of the homemaker services of a working wife. The jury found for the plaintiff in the amount of $375,000. It answered a special interrogatory finding that deceased was not contributorily negligent.

I

The United States Department of Transportation provides in its regulations that:

§392.9 Safe loading.
(a) General. No person shall drive a motor vehicle and a motor carrier shall not require or permit a person to drive a motor vehicle unless—
(1) The vehicle’s cargo is properly distributed and adequately secured as specified in §§393.100 — 393.106 of this subchapter.

(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must—

(1) Assure himself that the provisions of paragraph (a) of this section have been complied with before he drives that vehicle;

e # #

(4) The rules in this paragraph do not apply to the driver of a sealed vehicle who has been ordered not to open it to inspect its cargo or to the driver of a vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.”

Defendant contends that under this regulation the duty was on plaintiff, not on the defendant, to properly load the vehicle and to properly secure the load, and if the cause of the tractor’s overturning was a shifting of a load due to improper loading, plaintiff was guilty of contributory negligence as a matter of law. It is undisputed that the plaintiff and deceased were joint venturers so any negligence of his would be imputed to the deceased, and the jury was so instructed. The jury was also instructed that any negligence of plaintiff as the only heir would bar his recovery.

As this court has repeatedly held, the issue of contributory negligence is ordinarily and preeminently one of fact for the jury to determine. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267; Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277.) The violation of a safety statute, ordinance or regulation having the force of law is prima facie evidence of negligence. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) It is not negligence per se, however, for the evidence of negligence may be rebutted by proof that the party acted reasonably under the circumstances, despite the violation. Davis; Tabor v. Tazewell Service Co. (1958), 18 Ill. App. 2d 593, 153 N.E.2d 98, appeal denied (1959), 15 Ill. 2d 613.

The regulation relied upon here stated it did not apply if the vehicle had been loaded in a manner that made inspection of its cargo impracticable. Lescault, defendant’s traffic manager, testified that anything more than a look in from the rear would be impracticable and very few drivers would crawl up over the cargo to inspect. Accordingly, the jury could reasonably determine that the regulation was inapplicable.

But even if it determined the regulation was applicable, it could still have found the plaintiff’s conduct reasonable under the circumstances. Lescault testified that looking in from the rear one would see what looked like a safe, balanced load. Plaintiff could look in at the load from the dock since it was at the level of the bed; common sense indicates that if he was standing on the ground he could not see over the skids. Yet, defendant hurried him away from the dock and also refused to give him any wood although he had hammer and nails. The regulation was introduced into evidence, and the jury was properly instructed that if they found plaintiff violated the regulation set forth, it might consider that fact together with other facts and circumstances in evidence in determining whether plaintiff was negligent before or after the time of the occurrence. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.

II

At trial, defendant objected to the instruction informing the jury what to consider in determining the amount of recovery because one of the items listed was “what she earned or what she was likely to have earned in the future.” On appeal defendant contends that the instruction should not have been given because there was no evidence produced at trial to support any contention that plaintiff was in any way dependent on deceased for monetary support.

Section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2) provides:

“§2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.
The amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.”

The first paragraph quoted governs the recovery against the tortfeasor by the administrator of the estate. There is nothing in this paragraph requiring the administrator or any other person to be dependent on the deceased. It does require compensation to be based on the pecuniary injuries resulting from the death. (Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163.) There is a rebuttable presumption of substantial pecuniary loss to a spouse or lineal descendants (Freehill v. DeWitt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52, appeal denied (1970), 44 Ill. 2d 586; Dodson v. Richter (1962), 34 Ill. App. 2d 23, 180 N.E.2d 505, appeal denied (1962), 24 Ill. 2d 627; Robertson v. White (1956), 11 Ill. App. 2d 177, 136 N.E.2d 550, appeal denied (1956), 9 Ill. 2d 628), and the jury was properly so instructed. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) In such instance, whether they are in the habit of claiming and received pecuniary assistance from deceased is immaterial in an action for wrongful death. Dodson v. Richter (1962), 34 Ill. App. 2d 22, 180 N.E.2d 505, appeal denied (1962), 24 Ill. 2d 627.

The paragraph relied on by the defendant does not apply to suits against tortfeasors. Rather it governs the distribution of whatever amount is recovered in the tort action. It changed the mode of distribution so as to prevent, for example, an adult child in no way dependent on a parent from sharing equally with minor children who were fully dependent upon the parent. (Rust v. Holland (1957), 15 Ill. App. 2d 369, 146 N.E.2d 82.) But it is not necessary that a person, or even that all the heirs, taken together be 100$ dependent on the deceased. (In re Estate of Griffy (1978), 64 Ill. App. 3d 504, 381 N.E.2d 755.) As that case stated at 64 Ill. App. 3d 504, 507-08, 381 N.E.2d 757, 758:

“A careful reading of the statute clearly indicates that the court below was correct in its result and whether or not the appellee was 100 percent or less dependent upon the deceased is irrelevant in the facts of the case before us. The statute talks of proportions; proportions of dependency to the total amount of dependency.
It is also possible for the total percentage to be less than 100 which may be the present case. However, if the father and brother both have no dependency or zero percentage, it is impossible for them to have any proportion if any ‘surviving spouse or next of kin’ has a dependency.”

Here, while it is not relevant to this action, the husband who is the sole heir and sole claimant, has admittedly suffered some pecuniary loss, and his percentage of dependency, however small, is the total amount of dependency.

Ill

Defendant objects to plaintiff’s use of John Bentley as an accident reconstruction expert because he had no formal education beyond three years of high school and a course of electronics in the Navy; he has never authored an article or paper in accident reconstruction; and the only course he had ever taught was a one semester evening course in electronics at a two-year college. Bentley had testified as an accident reconstruction expert in 3,000 to 4,000 cases and had been recognized as an expert by appellate courts in such cases as Mitchell v. Fruehauf (5th Cir. 1978), 568 F.2d 1139; O’Kelly v. Jackson (Tex Civ. App. 1974), 516 S.W.2d 748; McIlroy v. Wagley (Tex. Civ. App. 1968), 437 S.W.2d 5, writ refd n.r.e.; Kettle v. Smircich (Tex. Civ. App. 1967), 415 S.W.2d 935.) Before he became an accident consultant in 1964, he had been a deputy sheriff for one year and had served for six years with the Texas Department of Public Safety; during this time he attended both the primary and secondary training academies and took police courses in mathematics and reconstruction of accidents. It is clear in light of Bentley’s vast experience and training that the trial court did not abuse its discretion (Penrod v. Merrill Lynch, Pierce, Fenner, & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376) in permitting Bentley to testify. Certainly we are not willing to say that only college graduates and college professors can qualify as expert witnesses; knowledge can be acquired by means other than a college education.

IV

Defendant alleges that the court erred in allowing Bentley to testify as to the length of marks on the roadway as determined from photographs in evidence, contending that there was no testimony in the record identifying any specific marks as coming from or being related to the vehicle involved in the accident. This contention must fall because Bentley himself identified various marks in the photographs as coming from the accident vehicle. This court must presume that this identification was both possible and reasonable since the photographs were not included in the record on appeal. It is proper, and indeed customary, for an accident reconstruction expert to testify from photographs coupled with an inspection of the accident scene as Bentley did (Murphy v. Hook (1974), 21 Ill. App. 3d 1006, 316 N.E.2d 146, appeal denied (1974), 57 Ill. 2d 604; Plank v. Holman (1969), 108 Ill. App. 2d 216, 246 N.E.2d 694, rev'd on other grounds (1970), 46 Ill. 2d 465, 264 N.E.2d 12; O’Kelly v. Jackson (Tex. Civ. App. 1974), 516 S.W.2d 748; McIlroy v. Wagley (Tex. Civ. App. 1968), 437 S.W.2d 5, writ ref'd n.r.e.; and see Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 211 N.E.2d 733), since normally an accident reconstruction expert does not visit the scene of the accident until after all marks of the accident have disappeared.

V

The plaintiff called an economist, Geraldine Gage, to testify as to the value of- the deceased’s services. In answer to a hypothetical question which included the assumption that after the end of 1977 deceased would work about 40 hours a week, Gage testified that the yearly value of the homemaking services for such an employed married woman was $6,767. In computing this she used two wage rates. One was the wage rate for ordinary housekeeping tasks such as cleaning and laundry. The rate for these tasks was $3.35 an hour. The other component was the managerial aspect, at a wage rate of $5.80 an hour. Defendant did not at this time object to the testimony, but after eliciting on cross-examination that if the hypothetical person was driving an interstate tractor-trailer 28 or 29 days a month, her figures would probably change, defendant moved to strike the testimony. The trial court refused, pointing out that the jury had all the facts and the hourly wages and the defendant could argue to the jury that deceased would only have been working at home three days per month. We agree and find no error.

VI

Defendant objected to Chapman’s testimony that immediately after the accident he told plaintiff the load shifted (actually on direct examination he only stated “it shifted”) on the grounds the remarks were hearsay and an opinion the witness was not competent to make. It is not necessary for this court to decide whether the remark was hearsay (compare People v. Cook (1965), 33 Ill. 2d 363, 211 N.E.2d 374; People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738; Breslin v. Bates (1973), 14 Ill. App. 3d 941, 303 N.E.2d 807, which hold out-of-court statements of testifying witnesses who are subject to cross-examination not to be hearsay, with People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169, cert. denied (1980), 446 U.S. 940, 64 L. Ed. 2d 794, 100 S. Ct. 2162, which holds such statements to be hearsay); since even if the remark was hearsay it clearly fell within an exception to the hearsay rule and was admissible as an excited utterance. Mangan v. F. C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374; Burnett v. Caho (1972), 7 Ill. App. 3d 266, 285 N.E.2d 619, appeal denied (1972), 52 Ill. 2d 597; Perkins v. Chicago Transit Authority (1965), 60 Ill. App. 2d 431, 208 N.E.2d 867.

Chapman witnessed the accident. As a trucker for 26 years, he was experienced with the nature of trucks and trailers and how they operated. He had driven over 2 million miles. Accordingly, it was proper for the trial court to permit Chapman to testify as to what he told plaintiff immediately after the accident, although in so doing he was stating an opinion he had drawn from his own experience and what he had just witnessed, facts which were fully before the jury. The fact that the tractor was closed and he could not actually see the load shift was also before the jury and went only to the weight of the evidence. Birnbaum v. Kirchner (1949), 337 Ill. App. 25, 85 N.E.2d 191, appeal denied (1949), 403 Ill. 628.

VII

The jury began deliberating at 12:25 p.m. At 7 the judge indicated he would call the jury out and read the Prim instruction (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731), and give the jury 30 minutes more to deliberate. Plaintiff objected, and it was then agreed to allow the jury to deliberate until 7:30 p.m., at which time the judge would call the jury out and inquire if it had reached a verdict. He would extend the time another half hour if it indicated it was about to reach a verdict. Defendant raised no objection to this although it still urged that the Prim instruction be given. It also stated the jurors should be asked if they were close, and the court agreed to do so.

At 7:30 the court called the jury out. The forelady stated that they had not reached a verdict but she believed they were close to a verdict. The trial judge told them that since they were close to a verdict he would give them another “20 minutes or so” to deliberate and the jury retired. No objection of any kind was made by defendant either to the judge’s statements or his failure to give Prim.

About 18 minutes later, the bailiff came in and reported the jury indicated they had reached a verdict but had not agreed on an amount yet and were asking for more time; this report was voluntary and not in response to any questioning by the judge. The trial judge indicated to the attorneys that he would give the jury about another half hour; he did not, however, communicate this to the jury. Defense counsel at this time moved for a mistrial contending the extension of time was improper. At 8:20 p.m. the jury came in with the verdict.

It is within the court’s discretion to decide how long a jury will be allowed to deliberate. (People v. Kirk (1979), 76 Ill. App. 3d 459, 394 N.E.2d 1212, cert. denied (1980), 447 U.S. 925, 65 L. Ed. 2d 1118, 100 S. Ct. 3019; Huwé v. Commonwealth Edison Co. (1975), 29 Ill. App. 3d 1085, 332 N.E.2d 60.) The judge did not abuse his discretion when at 7:30 he gave the jury “20 minutes or so” to deliberate particularly when it indicated it was close to a verdict; indeed, a refusal to give more time under such circumstances might well have been an abuse of discretion. That the jury was not coerced as defendant contends by the court’s granting them 20 minutes or so to reach a verdict is shown by the fact the jury did not reach a verdict in 20 minutes but instead asked for more time.

Likewise since the jury was not deadlocked but indicated that it was close to a verdict, the court did not err in refusing to give the Prim instruction since the main purpose of that instruction is to encourage deadlocked juries to reach an agreement. In any event, the defendant made no objection at that time either to the extension of time or the failure to give the Prim instruction. Only after the defendant became aware that the jury had ruled against it and was deliberating on damages did it make an objection to move for a mistrial. A party cannot elect to gamble, hoping that it will win the case and then only when it loses the case complain of some error which allegedly occurred. By not objecting at 7:30 to the errors it now contends happened at that time, it waived them. (Delany v. Badame (1971), 49 Ill. 2d 168, 274 N.E.2d 353. Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 398 N.E.2d 188, appeal denied (1980), 79 Ill. 2d 630; People ex rel. Barrett v. Board of Commissioners (1973), 11 Ill. App. 3d 666, 297 N.E.2d 307.) Likewise the defendant cannot now complain that the court asked the jurors whether they were close to a verdict since it requested the court to make the inquiry. Esderts v. Chicago Rock Island & Pacific Railroad Co. (1966), 76 Ill. App. 2d 210, 222 N.E.2d 117, cert. denied (1967), 386 U.S. 993, 18 L. Ed. 2d 339, 87 S. Ct. 1309; Miller v. Scandrett (1945), 326 Ill. App. 631, 63 N.E.2d 252.

We know of no Illinois case holding that it is error for a trial judge to receive openly a voluntary communication from the jury and defendant has cited none. Furthermore, as we held in People v. Kirk (1979), 76 Ill. App. 3d 459, 394 N.E.2d 1212, cert. denied (1980), 447 U.S. 925, 65 L. Ed. 2d 1118, 100 S. Ct. 3019, it is not reversible error for a court to discover how a jury is divided. Likewise we are unaware of any case, and again defendant has cited none, which holds it is error not to immediately declare a mistrial simply because the jury goes beyond a deadline set by the court. As already stated, the length of time for jury deliberation rests in the sound discretion of the judge. A refusal to declare a mistrial simply because the jury has continued deliberating past some arbitrarily set deadline when it is clear the jury is close to a verdict cannot be considered an abuse of discretion.

It is clear from the record that defendant received a fair trial and that no prejudicial error was committed. More the defendant was not entitled to. The judgment of the trial court is affirmed.

Affirmed.

JOHNSON, P. J., and LINN, J., concur.