author: MR. JUSTICE McCORMICK

text:
    Christine Marbach, et al., Plaintiffs-Appellees, v. Frank Gnadl, et al., Citizens Insurance Company of New Jersey, a Corporation, Insurance Company of North America, a Corporation, and United States Fidelity and Guaranty Company, a Corporation, Defendants. Frank Gnadl and Lieselotte Gnadl, Defendants-Appellants.
    Gen. No. 50,247.
    First District, Fourth Division.
    July 22, 1966.
    Maxfield Weisbrod, of Chicago, for appellants.

      Doyle, Berdelle & Tarpey and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendants, Frank Gnadl and Lieselotte Gnadl, have appealed from a decree of the Circuit Court of Cook County finding that the plaintiffs, Glenn Marbach and Christine Marbach, as contract vendors of certain improved real estate, were entitled to a lien upon the proceeds of various fire insurance policies. The policies were held in defendants’ names only and the proceeds of the policies represented amounts due as a result of fire damage to property covered by contract of sale between the plaintiffs and the defendants.

From the record the following facts appear to be undisputed: The plaintiffs were owners of a tract of land located in Cook County, Illinois, upon which a $30,000 building was located. On November 15, 1959, plaintiffs entered into a written contract with the defendants for the sale of these premises. The consideration to be paid by the purchasers was $35,000, of which $5,000 was paid on the execution of the contract and $500 per month was to paid thereafter; taxes were to be paid by the purchaser. In the contract the defendants agreed “as additional security to keep all buildings on aforesaid premises insured in such company or companies as the said party of the first part may direct for at least the sum of unpaid balance of purchase price.” The terms of the contract with reference to the down payment were complied with and the defendants entered into possession of the subject premises.

On about May 11, 1958, Christine Marbach had obtained fire insurance coverage of $15,000 for five years on the building from Insurance Company of North America. On November 19, 1959, at the time of the sale of the subject property, Christine Marbach assigned this policy, by endorsement on the policy, to Frank Gnadl. All subsequent annual premiums were to be paid by the defendants. Thereafter, the Gnadls insured the building by additional policies of fire insurance issued by United States Fidelity and Guaranty Company and Citizens Insurance Company of New Jersey, each policy for five years with $10,000 coverage. These policies, together with the policy from the Insurance Company of North America, gave the insured protection totaling $35,000. The Gnadls retained possession of these policies and were named therein as the sole insureds. On about July 8, 1962, while the Gnadls were in possession of the premises, the building was considerably damaged by fire (the insureds maintain the damage was about $16,000, while the insurance companies contend that the damage did not exceed $7,500). No payment whatsoever was made by the insurance companies on the policies of insurance. The defendants afterwards defaulted in their payments, and on or about September 18, 1962, plaintiffs filed with the Recorder of Cook County a declaration of forfeiture, in accordance with the terms of the contract.

On October 17, 1962, the Marbachs, as plaintiffs, filed a complaint against Frank Gnadl and Lieselotte Gnadl, defendants. The complaint was originally in two counts. In the first count it was alleged that the plaintiffs and defendants had entered into articles of agreement for the purchase of certain described property; that the defendants had failed to make the payments and had failed to pay the real estate taxes as provided in the said agreement; that on September 18, 1962, the plaintiffs filed with the Recorder a declaration of forfeiture; that copies of the agreement and the declaration of forfeiture were annexed to the complaint; and that plaintiffs pray that the interest of defendants be declared null and void and be vacated and set aside as a cloud upon the title of the plaintiffs. An answer was filed by the Gnadls to Count I of the complaint, in which answer they admit that they failed to make the payments provided for in the purchase contract. Count H of the complaint will be discussed later.

On January 6, 1964, the Circuit Court of Cook County entered an order which set forth the fact that the parties had entered into the contract for the sale of the described real estate, and that the plaintiffs had filed their declaration of forfeiture; the order stated that the answer of the defendants to Count I of the complaint admitted that if the agreement for warranty deed should be determined and adjudged to be duly forfeited and determined because of the declaration of forfeiture, then the defendants would have no right, title or interest in and to the said parcel of improved real estate. The court also found that the “said written contract is hereby declared null and void, and that said written contract does not constitute and is not a cloud upon the right, title and interest of said plaintiffs in and to said parcel of improved real estate.” From this order of the court no appeal is taken and it will not be discussed in the opinion except incidentally.

On October 10, 1963, the Marbachs filed an amended Count II, complaining of the defendants, Citizens Insurance Company of New Jersey, Insurance Company of North America, and United States Fidelity and Guaranty Company. The amended Count II set out, among other things, that the plaintiffs owned a certain described tract of land upon which was a building of the value in excess of $30,000; that articles of agreement for a warranty deed were entered into between the Marbachs and the Gnadls on November 15, 1959, and that the Gnadls took possession of the property under the terms of the contract ; that there was a provision in the contract by which the Gnadls agreed, as additional security, to keep all buildings on the premises insured “in such company or companies as the party of the first part may direct for at least the sum of the unpaid balance of the purchase price,” and that the Gnadls did insure the building in the three previously mentioned insurance companies; that the policies of insurance were obtained pursuant to the terms of the contract as additional security; that the Gnadls at the time of the issuance of the policies had an insurable interest in the property; that on July 8, 1962, the property was “destroyed by fire and damaged” to the extent of $16,000; that subsequently the Gnadls defaulted on the contract, and on September 18, 1962, a declaration of forfeiture was filed with the Recorder; that subsequent to the destruction of the property and the default of the Gnadls the plaintiffs gave notice to the three insurance companies of their interest in the property and of the declaration of forfeiture filed; that all conditions of the policies of insurance have been complied with and proofs of loss have been furnished to the defendants; that the Gnadls have failed to make payments agreed on in the contract of purchase and have refused to assign to the plaintiffs the policies of insurance which were taken out as additional security for the unpaid balance of the purchase price; that the defendants have failed and refused to pay the amounts due under the said policies of insurance, either to the plaintiffs or to the Gnadls; and further, “That by reason of the above the plaintiffs charge that they became and are entitled, in equity, to a lien upon the proceeds of said policies of insurance to the extent of the unpaid balance of the purchase price.”

The Gnadls, by leave of court, filed an intervening petition to amended Count II of the complaint, which was also treated as an answer. They also filed a counterclaim against the three insurance companies. The insurance companies filed an answer to the Gnadls’ counterclaim and an answer to amended Count II of the complaint, in which they deny that the building had a value of $30,000; admit that they issued their policies of insurance on the building; admit that the policies were issued in the name of the Gnadls and did not name the plaintiffs as additional insureds; admit that on or about July 8, 1962, a fire occurred in the building, but deny that the damage was in the sum of $16,000; admit that subsequent to the fire the plaintiffs gave notice to the three insurance company defendants of plaintiffs’ interest in the property and of the filing of the declaration of forfeiture. The insurance companies further say that neither the Gnadls nor the plaintiffs are entitled to any payment under the provisions of the policies, and they deny that the plaintiffs are entitled to an equitable lien upon the policies.

The Gnadls filed a reply to the joint answer of the counterdefendants — the three insurance companies — and in their intervening petition to amended Count II of the complaint the Gnadls admit that there was an agreement in the original contract that insurance should be taken out by the Gnadls, but they say that the Marbachs did not at any time request that they procure such insurance. The Gnadls allege that they were the sole named insured in the policies of insurance, and that the plaintiffs have no right, title or interest in the said policies. They further say that, the contract having been forfeited by the plaintiffs, the obligations and duties under the provisions of said contract became null and void; they state that all the conditions of the policies have been complied with, but that the compliance was on the part of the Gnadls, and that the plaintiffs failed to file any proofs of loss inasmuch as they had no right, title or interest under the policies of insurance. The Gnadls admit that the insurance companies have f ailed to pay the insurance, and they also set out the order of January 6, 1964, where the court declared the contract to be null and void. They state that the policy issued by the Insurance Company of North America was originally issued to Christine Marbach and assigned by her, at the time of the making of the contract, to Frank Gnadl. They allege that the plaintiffs filed an amendment to the complaint designated as Count III; that the Gnadls filed motions to strike Count III, which was stricken by the court on January 6, 1964, and that the order provided that as to that count the Gnadls go hence without day. They allege that that order was an adjudication that the plaintiffs have “no right, title or interest in all or any of said policies of insurance or of the proceeds thereof.”

On November 10, 1964, the court entered an order on the motion of the Gnadls for judgment on the pleadings, and in that order the court stated:

“This matter coming on to be heard on the motion of FRANK GNADL and LIESELOTTE GNADL for Judgment on the pleadings, and the Court having considered said motion and having set this entire cause down for hearing for an adjudication on the issue of whether the plaintiffs are entitled to a lien upon the proceeds of the insurance policies issued by the defendants, and the Court having considered all the pleadings herein, including the Complaint and Answer, the Counterclaim and Answer to the Counterclaim, and the Intervening Petition filed by FRANK GNADL and LIESELOTTE GNADL, and the parties having stipulated and agreed that the sole issue is whether the Declaration of Forfeiture filed by the plaintiffs herein extinguished any and all rights which the plaintiffs had in and to the policies of insurance issued by the defendants, and the Court having heard arguments by counsel for each of the respective parties and being fully advised in the premises:
“The court hereby expressly finds that the plaintiffs’ rights in and to the proceeds of the policies of insurance issued by the defendants were not extinguished by the plaintiffs’ filing of a Declaration of Forfeiture, which Declaration declared the contract between the plaintiffs and FRANK and LIESE-LOTTE GNADL, dated November 15, 1959, to be null and void.
“The Court further finds that by reason of the facts set forth in the pleadings and the .arguments made by the respective counsels, the plaintiffs are entitled to a lien upon the proceeds of the policies of insurance issued by the defendants, to the extent of the unpaid balance of the purchase price under the contract for the sale of real estate executed by and between the plaintiffs and FRANK and LIESE-LOTTE GNADL.
“IT IS, THEREFORE, HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiffs are entitled to a lien upon the proceeds of the policies of insurance issued by the defendants and described in the Complaint and Counterclaim filed herein, and that said policies of insurance be and hereby are impressed with a lien in favor of the plaintiffs to the extent of the unpaid balance of the purchase price under the aforementioned contract between the plaintiffs and FRANK and LIESELOTTE GNADL, and that the balance, if any, of whatever proceeds may be due and owing under said policies of insurance be then payable to FRANK and LIESELOTTE GNADL.
“And the Court further finds no just reason to delay an appeal herefrom.”

The Gnadls filed a notice of appeal from that order of the court. No notice of appeal was filed by any of the three insurance companies, nor are they concerned with this appeal.

Here the Gnadls urge that the Marbachs waived the requirement in the agreement that the defendants provide fire insurance; that by the decretal order finding and adjudicating the agreement for the warranty deed to be null and void, the plaintiff was barred of any of his rights to enforce the agreement for any provisions thereof; and that, the trial court having sustained defendants’ motion to strike Count III, the adjudication is res ad judicata of any right or demand of plaintiffs to enforce the said agreement because of the breach of its provisions. The Gnadls state that paragraph 9 of the agreement contained a provision that the plaintiffs had the option to forfeit and terminate the agreement and, the plaintiffs having exercised such option by their declaration of forfeiture, became bound by the further provision in the contract that all payments made by the defendants should be retained by the plaintiffs in full satisfaction and liquidation of all damages by them sustained, and thereby plaintiffs could have no other further or additional claim or cause of action against these defendants; and that the court erred in finding that the plaintiffs were entitled to an equitable lien upon the proceeds of all the policies of insurance.

Under the contract entered into between the Marbachs and the Gnadls, the Marbachs agreed that they would sell a certain described tract of land to the defendants. It was further provided that a certain down payment should be made and the balance should be paid by designated installments, and as additional security the Gnadls should take out insurance on the building for “at least the sum of unpaid balance of purchase price.” The Gnadls did take out insurance on the building in their own name, apparently in accordance with the intention expressed in the contract, and this is further indicated by the fact that the Marbachs had a policy of insurance on the building issued in their name which they assigned to the Gnadls at the time of the signing of the sales contract. The theory of the contract seems to be that if a fire occurred, destroying or damaging the building, there should be enough insurance in effect which would guarantee to plaintiffs full payment of the purchase price. At that time the Gnadls had an election: they could continue to pay their agreed installments on the tract, collect the insurance which would belong to them in lieu of the building, and at the time agreed upon in the contract they would receive a warranty deed. On the other hand, they could elect to refuse to proceed further with the contract, in which case the Marbachs would have the right to declare a forfeiture. Had there been no fire the Marbachs, on forfeiture, under the terms of the contract, were entitled to keep as liquidated damages the money which had been paid in by the Gnadls; they would also receive back, clear of any claims or liens, the tract of land and the building thereon; however, since in this case the building was damaged or destroyed, when the Marbachs filed their declaration of forfeiture they had the right to retain the monies paid in by the Gnadls, together with the tract of land, and to receive from the insurance companies the proceeds of the policies, but not in excess of the balance unpaid under the contract.

The Gnadls seem to misinterpret the rights of the parties under the contract and the meaning of an equitable lien. They rely on cases which provide that where a contract is declared null and void all rights under the contract cease, but in the instant case the right of an equitable lien upon the insurance policies came into effect before there was any forfeiture on the contract. The authority given the sellers in the event of default under the contract was to declare the contract “forfeited and determined.” This they did. When the court thereafter found that such action rendered the contract “null and void” it spoke as of the date of forfeiture and not “ab initio.” The then existing rights of the sellers under the contract were not disturbed.

The Marbachs notified the insurance companies. After such notification, it would be at their peril if the insurance companies then paid the insurance money to the Gnadls. The Marbachs are not seeking to enforce the contract, nor are they attempting to affirm the contract in part and rescind as to the residue. In 25 ILP, Liens, § 4, it is said:

“In a discussion of the nature of an equitable lien, Justice Daily, speaking for the Supreme Court in Watson v. Hobson, 1948, stated: ‘Equity recognizes, in addition to the personal obligation, in some cases, a peculiar right over the thing concerning which a contract deals, which it calls a “lien,” and which, though not property, is analogous to property, by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly upon that thing.’ The essential elements of an equitable lien include a debt, duty, or obligation owing by one person to another, and a res to which that obligation fastens, identified or described with reasonable certainty.”

In 53 CJS, Liens, § 1, it is said:

“An equitable lien does not divest the debtor of title or possession, but is merely a charge on the property for the purpose of security, since it is a mere floating equity until a judgment or decree subjecting the property to the payment of the debt or claim is rendered.”

In Grange Mill Co. v. Western Assur. Co., 118 Ill 396, 9 NE 274, a bill in equity was brought by the Grange Mill Company against certain insurance companies and Emison and Musselman. In the bill it was alleged that Grange Mill sold its mill property to the defendant, Emison, at a certain price, a part of which was to be paid in cash and the remainder to be paid by promissory note with interest. The mill property was totally destroyed by fire after it was taken possession of by Emison. Suits were brought by Emison against several insurance companies on policies procured by Emison & Co. for its own benefit. This bill was then filed in which the insolvency of Emison & Co. was asserted, and the insurance companies were made defendants. The court said:

“The bill is framed on the theory, Emison agreed at the time of the sale, and as a part of the contract, that he would have the property insured for the benefit of complainant. The evidence contained in this record has been subjected to a careful consideration, and it is thought it fully sustains the position taken, that Emison did agree to have the mill property insured for the benefit of his vendor. It is so expressed in a written memorandum made at the time, . . . But aside from the written memorandum, the agreement to procure insurance upon the property for the benefit of complainant is fully established by other testimony. Undoubtedly, the law is, that, as between the vendee and the vendor, the insurance money, in case of the destruction of the property, represents the property itself, and in equity the insurance money should be appropriated to the vendor in case of the insolvency of the vendee. The principle is of frequent application, where a mortgagor or vendee agrees to insure for the benefit of the mortgagee or vendor, in case of loss, in equity, such party is entitled to the insurance money, to the extent, at least, of his interest in the property which was the subject of insurance. After notice to the insurance company having the risk, such company can not pay the loss to the assured named in the policy, except at its peril, until the rights of the parties claiming the fund shall have been adjusted. Cases in this State, and elsewhere, recognize this equitable doctrine. [Citing cases.] ”

In American Equitable Assur. Co. v. Newman, 132 Mont 63, 313 P2d 1023, the court, quoting from First Nat. Bank of Jessup v. Cappellini, 149 Pa Super 14, 26 A2d 119, stated:

“ ‘. . . that if a mortgage contains a covenant that the property shall be kept insured by the mortgagor for the security of the mortgagee, and pursuant to his covenant, the mortgagor takes out a policy of insurance covering the mortgaged premises the mortgagee will be entitled to the proceeds on an equitable lien even though the policy contains no mortgagee clause.”

Under the general rule as laid down in the cases, the court in the case before us properly imposed an equitable lien upon the proceeds of the insurance policies. The argument on the right of the court to impose such equitable lien is narrowed by the stipulation of the parties which is referred to in the order of the court of November 10, 1964, that the sole issue is whether the declaration of forfeiture filed by the plaintiffs extinguished their rights to the policies of the insurance issued in the case. Under the theory upon which the trial court proceeded, that there was an equitable lien upon the proceeds of the policy of insurance, the equitable lien became an inchoate lien at the time the building was burned. An equitable lien, although not judicially recognized until judgment is rendered declaring its existence, relates back to the time it was created by the conduct of the parties. Hise v. Superior Court of Los Angeles County, 21 Cal2d 614, 134 P2d 748; Wolverine Ins. Co. v. Phillips, 165 F Supp 335, DC Iowa, app dismd, 283 F2d 518, CA 8th; New v. New, 148 Cal App2d 306, 306 P2d 987; Holder v. Williams, 167 Cal App2d 313, 334 P2d 291.

The subsequent finding by the trial court that the Marbachs’ declaration of forfeiture had terminated the Gnadls’ interest in the property and rendered the contract void as a cloud upon the Marbachs’ title, had no effect whatsoever upon the right of the Marbachs to an equitable lien upon the proceeds of the insurance policies. Before this court the Gnadls argue that the fact that the court dismissed Count HI of the complaint and in its order stated that as to that contract the Gnadls should go hence without day, was res ad judicata as to the issue now before the court. It is difficult to see how this issue could arise under the stipulation which was entered into between the parties, and in any case, the argument is not valid since Count HI did not state a cause of action. The dismissal of Count HI is not a bar to Count II, but is consistent with our finding that such insurance had, in fact, been provided through application of an equitable lien.

The cases cited by the Gnadls in support of their argument on this point are not applicable, nor does the fact that in their motion to terminate the contract the Marbachs did not mention that the Gnadls had failed to secure insurance in their name have any effect whatsoever upon the case, inasmuch as the contract made no provision that the Gnadls should secure insurance policies in the name of the Marbachs. The action of the Marbachs in assigning to the Gnadls the policy heretofore issued in the Marbachs’ name was in accord with the contract.

The judgment of the Circuit Court of Cook County finding that the Marbachs are entitled to an equitable lien on the proceeds of the insurance policies issued by Citizens Insurance Company of New Jersey, Insurance Company of North America, and United States Fidelity and Guaranty Company, is affirmed. The case is remanded with directions to the court to determine the amounts payable under said policies and enter judgments therefor in favor of the Marbachs to the extent of the unpaid balance under the purchase contract, and in favor of the Gnadls to the extent of the excess, if any.

This conclusion having been reached by application of equitable principles, not through enforcement of the terminated contract, but in recognition of the equitable rights of the parties as determined prior to forfeiture, the trial court shall then require the Marbachs to do equity by conveying title to the Gnadls if the proceeds of the insurance policies shall equal or exceed the unpaid balance under the purchase contract (including purchase price, taxes, etc., required to have been paid by the purchasers).

Affirmed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Percy Womack (Impleaded), Defendant-Appellant.
    Gen. No. 50,518.
    First District, Fourth Division.
    July 22, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, Percy Womack, was found guilty of attempted theft after a bench trial and was sentenced to the penitentiary for a term of not less than two nor more than five years. In this appeal defendant contends that he was not proved guilty beyond a reasonable doubt.

On November 14, 1964, at approximately 4:00 a. m., a group of people including the defendant and one Mrs. Geraldine Carter boarded a westbound Madison Street bus. Two Chicago Transit Authority police officers (Peter Genutis and Edgar Gillespie) were riding the bus, seated across the aisle from each other near the rear exit door. Genutis testified that upon boarding the bus the defendant nodded in his direction and remarked to Mrs. Carter: “There is one”; that the pair sat down together two seats in front of him; that they looked around the bus, after which Mrs. Carter got up, sat beside him and attempted to pick his pocket as the defendant watched from his seat; that he seized Carter and announced that she was under arrest, whereupon she nodded to the defendant who then slumped down into his seat; and that the defendant was then apprehended by Gillespie. On cross-examination the witness stated that he was sitting on the bus with his eyes open and did not feign that he was asleep. Genutis further testified that the defendant admitted being a friend of Carter but later testified that the defendant admitted only that he knew Carter. He also stated that he had refreshed his memory before the trial with a report he made at the time of the occurrence; that he testified before the Grand Jury and in addition made a statement to the secretary of the Grand Jury which contained the same information found in the aforesaid report; that he related to the secretary all of the information within his knowledge on the case; and that he told the secretary that the defendant admitted being a friend of Mrs. Carter. However, there is a stipulation in the record that the synopsis of Genutis’ statement contains “nothing . . . whatsoever to indicate in any way, shape or form that Percy Womack said that he was a friend of Geraldine Carter.”

Edgar Gillespie testified and substantially corroborated the testimony of Genutis with regard to the events on the bus. However, even though he was sitting directly across from Genutis he did not hear any conversation between the defendant and Carter. The witness also stated that upon his apprehension the defendant denied any complicity in the crime, and that he could not remember whether the defendant ever admitted knowing Carter.

Percy Womack testified in his own behalf and denied his guilt. Womack admitted boarding the bus but stated that he was on his way home and was alone; that he seated himself in the first forward-facing seat behind the driver and promptly fell asleep; and that he did not know Geraldine Carter.

Geraldine Carter, who had confessed to the crime at an earlier trial and was awaiting sentencing, also testified on behalf of the defendant. She denied knowing the defendant and stated that she sat in the second seat behind the driver and the defendant sat in front of her.

Under the Criminal Code of 1961 (Ill Rev Stats, 1963, c 38, § 5-2 (c) a person is legally accountable for the conduct of another when:

Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense ....

The fact that the defendant did not physically aid Geraldine Carter in the attempted theft is undisputed. While the circumstantial evidence of defendant’s complicity is fairly strong in this case, and may even be said to establish the probability of his guilt, it is not such as to prove him guilty of the crime charged beyond a reasonable doubt.

Therefore the judgment of the trial court is reversed.

Reversed.

ENGLISH and MCCORMICK, JJ., concur.


author: MR. PRESIDING JUSTICE DRUCKER MCCORMICK, J.,

text:
    Ida Tolman, Plaintiff-Appellee, v. Wieboldt Stores, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 50,621.
    First District, Fourth Division.
    July 22, 1966.
    Rehearing denied September 12, 1966.

      McCORMICK, J., dissenting.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller, Richard C. Valentine and Thomas W. Dempsey, of counsel), for appellant.
    David Alswang, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiff and from an order denying defendant’s motion for a directed verdict, defendant’s motion for judgment notwithstanding the verdict and the order denying defendant’s motion for a new trial. After a jury trial, a verdict and judgment for $10,000 was rendered for the plaintiff for injuries sustained on November 29, 1960, when plaintiff fell on an escalator in defendant’s store. Defendant urges reversal on the theory that plaintiff failed to make out a prima facie case; that there was no evidence that defendant knew or should have known that the escalator was unsafe and that there is no competent evidence that the escalator was unsafe. In the alternative defendant urges certain trial errors as grounds for a new trial.

Plaintiff introduced into evidence, over objection, two interrogatories propounded to defendant in pretrial discovery proceedings and defendant’s answers thereto:

Interrogatory No. 1: For a five-year period prior to November 29, 1960, and while you were known as Handel Brothers, or you operated, or had control of the escalator specified in the complaint, was anybody injured on said escalator by catching any part of their shoe, or tripping on the slats, or surface of the treads of said escalator?

The answer is: This defendant has no actual knowledge of any such circumstances. However, based upon hearsay evidence (sic), the answer to interrogatory No. 1 as it pertains to Handel Brothers, Inc., the answer is yes. There is no record or information as to any such occurrences during the period of time this defendant was in possession and control of the involved premises and escalator thereon. No records are available prior to October 1, 1956.

Interrogatory No. 2: If the answer to the aforegoing is yes, state the name or names and address or addresses of the person or persons injured, the approximate date of injury, and the manner in which the injury occurred.

Answer to Interrogatory No. 2: Based upon hearsay information, the defendant lists the following names, addresses and dates relating to incidents which occurred subsequent to October 1, 1956, and during the period of time that the involved premises and escalator thereon was in possession and control of Handel Brothers, Inc.: [The names and addresses of eleven women are listed.]

Answers to interrogatories may be used in evidence to the same extent as depositions of an adverse party. [Ill Rev Stats, 1959, c 110, § 101.19-11 (4).] Discovery depositions may be used only as provided by Supreme Court Rule 19-10(2) [Ill Rev Stats, 1959, c 110, § 101.19-10 (2)]:

Discovery depositions may be used only (a) for the purpose of impeaching the testimony of deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness; or (b) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person; or (c) if otherwise admissible as an exception to the hearsay rule.

The answers to the interrogatories clearly stated the defendant had no knowledge of prior accidents. The added information in the answers filed over a year after the incident was stated to be upon hearsay evidence “as it pertains to Handel Brothers, Inc.” There was no proof by plaintiff that this information or any knowledge of the eleven accidents came to the defendant prior to the incident. The answers were not admissions, were not used for the purpose of impeachment and were not admissible as an exception to the hearsay rule. Therefore, the court committed serious prejudicial error in allowing the answers to be admitted into evidence.

No other evidence was introduced by which plaintiff sought to establish knowledge or notice to defendant. Plaintiff argues that there is an inference from the testimony of James Gunderson, defendant’s witness, that the defendant knew of the dangerous, unsafe and outmoded condition of the escalator. This witness testified that he was Chief Engineer of defendant from the time they took over the store from Handel Brothers on August 18, 1960; that he had worked for Handel Brothers at various times from 1936 on; that he had the same duties after defendant took over as above; that he saw the escalator daily and that there had been no change in the treads since 1936. We cannot find in this evidence any basis for holding that the Chief Engineer’s daily observation was proof of knowledge that the escalator was dangerous or unsafe. He was not asked about the eleven accidents mentioned in answers to the interrogatories although plaintiff, of course, had the clear opportunity to do so. Since we have held that these answers were not admissible, and since plaintiff chose not to question Gunderson concerning the accidents, she cannot maintain her argument that Gunderson must or should have known about the accidents. In regard to knowledge or notice as a prerequisite to liability, the court in Fier v. Chicago Orpheum Co., 295 Ill App 247, 14 NE2d 860 said at page 262:

Since there is no evidence in this record that tends to show that defendant had knowledge or notice of the claimed unsafe condition of the stage, plaintiff failed to prove the negligence charged against defendant and the latter’s motion for a finding in its behalf should have been sustained.

So in the instant case we find no evidence, nor is there any inference from the evidence adduced, that the defendant had either notice or knowledge, actual or constructive, of the alleged unsafe condition of the escalator.

Plaintiff’s complaint also charges that the defendant negligently permitted the escalator to be old, outmoded and unsafe in that (1) “the surface of the said escalator was equipped with wooden slats which were spaced far enough apart so that the heel of a woman’s shoe was likely to be caught between the said slats thereof and thereby said person caused to lose her balance in attempting- to remove the heel of her shoe so caught or forced between the space of the slats thereof,” and (2) the escalator “was not the type used as a matter of custom, practice and usage by retail department stores in the loop district of the City of Chicago, or by the said defendant in other parts of its said store described as aforementioned; that it was the general custom, practice and usage at the said time of retail department stores in the loop district of the City of Chicago, including the aforementioned store of the defendant in divers other portions of the said store, to maintain and have in use escalators the surface of which was equipped with steel ridges placed close enough together so that the heel of a customer’s shoe could not be caught between the spaces of the said ridges.”

Plaintiff, the only occurrence witness, testified:

I got on the escalator from the basement going to the first floor. I held the hand rail on the right side. This rail was going up. The rail on the left side was stationary. The treads were wooden slats spaced apart between %, and 1 inch. The space between each slat was about 1 inch deep.

I went up the escalator about one fourth and realized the heel of my left shoe was caught between the slats. I tried to get it out, I tried to shake my foot, but I couldn’t get it loose. I was getting to the top. I gave my foot a violent shake. My foot slipped out of the shoe. I fell backwards on my back.

. . . . . .

I bought these shoes about 9 months before at the same store [then owned by Mandel Brothers].

. . . .

I assume that it was the bottom portion of the heel on my left shoe that caught.

She further testified that defendant had other escalators which had a metal tread and ridges about a quarter of an inch apart; that she saw and used escalators similar to those in other loop stores, including Field’s and Goldblatt’s. In a three-month period prior to this she did not see an escalator in any other store in the loop similar to the one she fell on. From this evidence plaintiff argues that the escalator was old, outmoded and unsafe. While we do not consider this evidence sufficient to establish a custom, we nevertheless refer to Turner v. Chicago Housing Authority, 11 Ill App2d 160, 136 NE2d 543, where the court stated at page 165:

While evidence of a deviation from customary practice is admissible and may be considered by the jury along with the other evidence in the case tending to indicate negligence, it is not, in itself, proof of negligence and cannot, standing alone, sustain a recovery. Peterson v. Feltenberger, 102 Pa Super 6, 156 A 621. So, in the instant case, a showing that the construction of the stairs was not standard is not enough. It must be shown that the deviation from the standard resulted in an unreasonably dangerous and unsafe condition. Kelly v. Loft Inc., 124 NJL 185, 11 A2d 58; Kahn v. Werbel, 4 NJ Super 184, 66 A2d 559.

In the instant case there was no evidence of noncompliance with any statute or ordinance or that defendant had violated its duty toward plaintiff in the construction or maintenance of the escalator. In McQuillan v. City of New Orleans, (La App), 18 So2d 218 (1944), the court said at page 220 :

It is true that the shoes which women presently wear sometimes have narrow toes and heels, and, if the writer’s observation is not at fault, are frequently without any covering over the toes at all, and, of course, the narrower the shoes are the more likelihood of their being engaged in a hole 1%" wide. When this grating was installed 15 years ago the style in women’s shoes might have been different and, doubtless, will be different before many years hence. It may be that our women will wear sturdier and wider shoes or it is as safe to predict narrower and flimsier ones. But must our sidewalks be altered with the prevailing mode of footgear or should the women be charged with greater or less caution as the changing styles require. We incline to the latter view and are constrained to hold this sidewalk is reasonably safe for the pedestrian who is reasonably shod.

The reasoning of the court is particularly applicable in the instant case even though plaintiff whimsically claims it is distinguishable because plaintiff purchased her shoes at defendant’s store.

We are aware of no decision which supports the proposition advocated by plaintiff (and by our colleague) to the effect that the mere occurrence of injury to a passenger raises a presumption of negligence on the part of a common carrier. In each of the cases cited there was something more. In Heffernan v. Mandel Bros., Inc., 297 Ill App 272, 17 NE2d 523, the plaintiff claimed that the escalator “started to vibrate, and it pushed me from one side to the other, and then it gave some kind of a jerk and threw me off my feet”; in McBride v. May Dept. Stores Co., 39 Ohio App 420, 177 NE 773 there was evidence of defective slats on an escalator; in Petrie v. Kaufmann & Baer Co., 291 Pa 211, 139 A 878, the escalator gave a sudden jerk throwing plaintiff down onto the stairs; in Springer v. Ford, 189 Ill 430, 59 NE 953, the injury was caused by the “breaking” or “giving way” of an elevator; in Carson v. Weston Hotel Corp., 351 Ill App 523, 115 NE2d 800, an elevator also “gave way”; and in Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520, the elevator fell 120 feet or more while plaintiff was a passenger.

Defendant’s alternative contention is for a new trial because of trial errors. We agree that there were such errors which would require a new trial, particularly the admission into evidence of the interrogatory answers, referred to above, and a highly prejudicial photograph, but, in view of our decision, we will not discuss this point in further detail.

The court erred in not directing a verdict for defendant at the close of all the evidence. Therefore, judgment is reversed and judgment for the defendant is entered here.

Reversed — judgment for defendant.

ENGLISH, J., concurs.

MCCORMICK, J.,

dissents:

I must dissent to the majority opinion. The issues in a lawsuit are formed by the pleadings. In the instant case a motion of the defendant to strike the complaint on the ground that it did not state a cause of action was denied. Defendant thereupon filed an answer. 30 ILP Pleading § 232 summarizes the Illinois rule that failure of a complaint fully or sufficiently to state a good cause of action is a defect open to waiver, but a total failure to plead a cause of action is a fatal defect open to attack at any time before or after judgment. In the instant case the complaint, in my opinion, did state a cause of action. The defendant practically admitted this since, in its reply brief, it stated that it was plaintiff’s duty to prove “a cause of action,” and apparently it was not relying on any defect in the complaint.

In the complaint it is stated that the plaintiff, at the invitation of the defendant, was in the basement premises of defendant’s store and was using the escalator to go from the basement to the first floor. The plaintiff charges that it became and was the duty of the defendant to use the highest degree of care consistent with the practical operation of the escalator and to maintain, control and equip the escalator for the safety of customers having occasion to use it; that the defendant failed to fulfill its duty in that regard, and that as a result the plaintiff, while in the exercise of. due care, lost her balance and fell or was thrown down, injuring herself. It is also alleged that the defendant, in violation of its duty, carelessly, negligently and improperly permitted and allowed the said escalator to be old, outmoded, and unsafe in that its surface was equipped with wooden slats spaced far enough apart so that the heel of a woman’s shoe was likely to be caught between the slats; that the type of escalator in question did not conform to the escalators used by other retail department stores in the Loop district of the city of Chicago, or by the defendant in other parts of its store, inasmuch as the usage in the Loop district of the city of Chicago at the time was to maintain and have in use escalators, the surfaces of which were equipped with steel ridges placed close enough together so that the heel of a woman customer’s shoe would not be caught between the spaces of the said ridges. There is also the formal allegation of damages suffered by the plaintiff.

The answer of the defendant denies practically all the allegations in the complaint except the allegation that it was the duty of the defendant in providing and operating the escalator to use the highest degree of care consistent with its practical operation.

In passing on a post-trial motion asking for judgment notwithstanding the verdict the trial court must apply the same rule which would be applied in passing on a motion for a directed verdict at the close of all the evidence, and a single question is presented as to whether there is in the record any evidence which, standing alone and taken with all intendments most favorable to the party resisting the motion, tends to prove the material elements of the case. 23 ILP Judgments § 122, and cases cited. In Lutz v. Chicago Transit Authority, 36 Ill App 2d 79,183 NE2d 579, the court said:

“The test to be applied to a defendant’s motion for a directed verdict is whether there is any evidence or reasonable inferences arising from the evidence, tending to prove the cause of action alleged in the complaint. On such a motion, in a jury trial, the court does not weigh the evidence or the inferences to be drawn from the evidence. These are questions for the jury and not for the court to consider. The court must decide if the plaintiff’s evidence fails as a matter of law to establish the claim. It becomes a question of law only where the evidence is such that all reasonable men would reach the same conclusion or where there is a total failure to prove one or more of the elements necessary to the cause of action. If it appears that all reasonable men might not agree in their conclusions, a jury question is presented. [Citing cases.] ”

See also McCullough v. Orcutt, 14 Ill App2d 513, at 517, 145 NE2d 109.

The instant case was tried on the theory that the defendant in operating the escalator in question was a common carrier, and the jury was so instructed. The instructions are not in the record, but the remarks of the trial judge as set out in the additional abstract of record so indicate. It is the law that a common carrier of passengers owes them the highest degree of care, and it is also the law that a person operating an escalator or an elevator in a building such as the one in the instant case is considered to be a common carrier and must use extraordinary care in and about his operation to prevent injuries to persons rightfully riding thereon.

Heffernan v. Mandel Bros., Inc., 297 Ill App 272, 17 NE2d 523, was the first case decided by a reviewing court in Illinois with reference to an escalator, and in that case the court held that the operator of an escalator is a common carrier, and at 278 cited with approval and quoted from McBride v. May Dept. Stores Co., 39 Ohio App 420, 177 NE 773, as follows:

“. . . the plaintiff alleged in her petition ‘that the moving part of said escalator, upon which customers are invited to stand, consisted of slats or cleats so arranged that narrow slots exist between these slats just wide enough to allow the heel of a lady’s shoe to become wedged therein, so that, when descending, and the bottom is reached, and the customer attempts to step off, she finds it difficult, if not impossible, to do so, if her heel has become so wedged; further, that said slats or cleats had become defective by reason of long use, so that they were dangerous, all of which dangers and defects the defendant, in the exercise of ordinay care, should have known.’ ”

The court in McBride, after holding that the plaintiff had presented evidence tending to prove the material allegations of her petition, said that there was no difference in principle between the ownership and operation of an elevator and an escalator, and that it was the duty of a storekeeper owning and operating such an escalator to exercise the highest degree of care in its management and operation. The Heffeman case also cited and quoted from Petrie v. Kaufmann & Baer Co., 291 Pa 211, 139 A 878, in which case the plaintiff — a customer in the store — stepped on an escalator, and had been carried a short distance when the escalator momentarily stopped and then started forward with such a sudden and violent jerk as to throw her down, causing her head and body to strike forcibly against the moving stairway. In that case the court affirmed the judgment for the plaintiff, and said:

. . Hence the rule that an elevator is deemed a common carrier applies equally to an escalator. While a carrier is not an insurer of the safety of the passengers, he is bound to exercise the highest practical degree of care for their safety, and where a passenger is injured through some defect in the means of transportation or the manner of operation, the burden is upon the carrier to show it could not have been prevented by human foresight. ‘But though in legal contemplation, they [common carriers] do not warrant the absolute safety of their passengers, they are yet bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in damages. Nay, the mere happening of an injurious accident, raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist.’ Laing v. Colder, 8 Pa 479, 481, 482 (49 Am Dec 533). [Other cases cited.]”

In the Heffernan case the court approved the rule laid down in the McBride and Petrie cases.

In Springer v. Ford, 189 Ill 430, 59 NE 953, an elevator case, the court said:

“When a passenger is injured by reason of the giving way of some portion of the machinery or appliances by which the elevator is operated, the presumption of negligence from such breaking, unexplained, arises. In New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 Ill 40, we say on page 48: ‘The happening of an accident to a passenger during the course of his transportation raise's a presumption that the carrier has been negligent. The burden of rebutting this presumption rests upon the carrier. Undoubtedly, the law requires the plaintiff to show that the defendant has been negligent. But where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident. If the injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, a presumption of negligence on its part is raised.’ ” [Emphasis supplied.]

In Carson v. Weston Hotel Corp., 351 Ill App 523, 115 NE2d 800, an elevator case, the court cited with approval Springer v. Ford, 189 Ill 430, 59 NE 953, and said:

“. . . Plaintiff was rightfully a passenger in the elevator and Weston was his common carrier. The ■accident happened, when the elevator gave way while he was being transported. These facts raised the presumption of negligence on the part of Weston, which then had the burden of rebutting the presumption by a showing of extraordinary care and diligence.”

The same rule was laid down in Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520.

In the instant case we apply the rule that where an accident occurs to a passenger on a common carrier, the mere happening of an injurious accident raises prima facie a presumption of negligence, and the defendant then has the burden of rebutting the presumption by a showing of extraordinary care and diligence. The record shows that the plaintiff wore a shoe with a narrow heel. The fact that shoes with heels of that type are now generally worn is common knowledge. The defendant is charged with that knowledge. A photograph of the escalator on which the accident occurred was also introduced in evidence, as was testimony with reference to the width between the wooden slats. The defendant must be charged with the knowledge that a shoe with a heel of the type worn by plaintiff could slip between the slats and could cause her to fall. When the plaintiff, under those circumstances, proved that an accident occurred to her because her heel slipped between the slats of the escalator, a presumption was raised that the defendant was negligent. In order to rebut that presumption the defendant must introduce evidence showing extraordinary care and diligence. The defendant introduced no such evidence.

The defendant had purchased the store from Mandel Brothers on August 18, 1960. The instant accident occurred on November 29, 1960. James Gunderson, who was assistant chief engineer of Wieboldt’s at the time of the accident, testified that he had been previously employed by Mandel’s from 1936 until the store was sold to defendant. He testified as to the physical setup of the escalator on which the accident occurred, describing the steps, treads and the distance between the slats. He testified that he had originally begun working for Handel’s in 1936; that while there were some gaps in his employment, from the time he first saw the escalator in 1936 there had been no changes made in the width or height of the treads. This was the only testimony introduced by defendant to rebut the presumption raised in favor of the plaintiff. It is not sufficient to make the disputed question of the alleged negligence a matter of law and not one of fact.

Negligence is the omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do, or the doing of something which a prudent and reasonable man would not do. L. Wolff Mfg. Co. v. Wilson, 152 Ill 9, 38 NE 694. In Hack v. New York, C. & St. L. R. Co., 27 Ill App2d 206, 169 NE2d 372, the court said:

“Negligence is generally ‘a mixed question of law for the court and fact for the jury, and negligence cases in which a nonsuit may be allowed or a verdict may be directed are exceptional. On a motion for nonsuit all conflicts in testimony . . . must be resolved in favor of the plaintiff.’ 38 Am Jur Negligence, sec 344; Kennedy v. Swift & Co., 234 Ill 606, 611, 85 NE 287. Ordinarily in determining as to whether conduct is negligent or not negligent in the light of the foreseeability of the results which occurred, the question is one which a jury may on its own general knowledge resolve without the benefit of expert testimony.”

The trial court properly overruled the motion for a judgment notwithstanding the verdict.

In the majority opinion the court cited and quoted from Fier v. Chicago Orpheum Co., 295 Ill App 247, 14 NE2d 860, which is totally inapplicable here since it was a case involving the question of whether the defendant had actual or implied notice that a rubber ball upon which the plaintiff tripped had been left on a stage. The court in that case discussed the rule that in cases of this character the evidence must establish either that the defect was actually known to the defendant or that the same existed for a sufficient length of time prior to the injury that the defendant in the exercise of reasonable care would or should have known it. In the case before us there was evidence that the defendant knew of the two conditions which caused the accident.

The majority opinion also cites and quotes from McQuillan v. City of New Orleans (La App), 18 So2d 218 (1944). We do not agree with the broad statement from that case quoted in the majority opinion and it is necessary to point out that the case was not one involving a passenger on a common carrier, and the only duty imposed upon the defendant was that of ordinary care.

The majority of the court takes the somewhat extraordinary view that the cases cited in the dissent are not applicable because the accident was not exactly the same type as the accidents which occurred in the cited cases. If the rule is to be that a case is not applicable unless it is a case which has exactly the same facts as the one to which it is sought to be applied as an authority, then we are making a revolutionary change in the application of the case law. The majority theory apparently is that unless there is an actual breaking or collapse or disruption in the use of an escalator, the common carrier rule does not apply. The true rule is that if the proprietor of the escalator was negligent with respect to its construction and maintenance or with respect to the manner in which it was operated at the time of the injury, it is sufficient. 13 CJS Carriers, § 768. In New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill 40, 43 NE 809, a case dealing with a common carrier, the court said, at page 48:

“Being a passenger, appellee was not chargeable with notice of defects in the construction or condition of the cars. ‘As to the selection of suitable machinery and cars, the fitness of the road both as to manner of construction and materials used, and in the use of all appliances adopted for the government or moving of trains, and as to the retention of competent and faithful servants, the carrier of passengers is obligated to use the highest reasonable and practicable skill, care and diligence.' (Chicago and Alton Railroad Co. v. Pillsbury, 123 Ill 9; Pennsylvania Co. v. Roy, 102 US 455.) ”

The court further stated:

“. . . But, where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident. If the injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, a presumption of negligence on its part is raised. [Citing cases.] Proof that plaintiff was a passenger, that the accident happened, and that the injury was inflicted, imposes upon the carrier the duty to explain or account for the accident, and to prove that it resulted from a cause for which the carrier should not be held responsible. . . . The circumstances of exculpation are its matter of defense. . . .”

The court further held that “Whether or not the defendant offered such explanation of the accident as to relieve itself from the charge of negligence, and whether or not the plaintiff exercised due care for his own safety, were questions of fact for the jury, . . .” See Springer v. Ford, 189 Ill 430, at 436, 59 NE 953.

In a footnote in the majority opinion it is said:

“While plaintiff’s inch heel would not catch in a ¼ inch space, a ¼ inch heel (frequently found on women’s shoes in the current mode) could do so. For a ¼ inch heel the ⅝ inch space would be safer and vice versa. One difficulty arising from this approach to the problem of escalator design is that at any given time there are heels being worn in a great variety of widths. Of this we take judicial notice.”

The fact that the court takes judicial notice of the variance in widths of women’s heels and of the alleged fact that certain types of heels could be caught in the more modern escalators does not make it a matter of law. It still remains a question for the jury, and unless we are going to eliminate the jury as a finder of fact, such matters should be submitted to them. In passing on a motion for judgment notwithstanding the verdict, the only question is whether there is any evidence, or reasonable inferences arising from the evidence, tending to prove the cause of action. On such a motion in a jury trial the court cannot weigh the evidence.

In the majority opinion the court finds that the trial court erred in overruling defendant’s alternative contention for a new trial because of trial errors, and the court indicates that it considered that there were such errors in the record, but does not pass upon the question of whether or not those errors would be sufficient to require the court to allow the defendant a new trial. The errors upon which the defendant here relies are that the court erroneously admitted plaintiff’s interrogatories 1 and 2, which requested the names and addresses and the date of injury of any persons who were injured on the subject escalator by “catching any part of their shoe or tripping on the slats or surface of the treads of said escalator in the 5-year period prior to the date of plaintiff’s accident.” The interrogatories were objected to by the defendant and the defendant later objected to the introduction of the interrogatories and answers into evidence. The answers to the interrogatories were to the effect that there were prior accidents on the escalator during the period when the store was owned by Handel Brothers, “based upon hearsay information.” The defendant further answered that no records were available prior to October 1, 1956, and that since 1956 there were, as the defendant learned through hearsay information, eleven accidents. The names and addresses of the parties and the times of the accidents are also given. The answer to the interrogatory indicates that four accidents had occurred in 1959 and 1960. The defendant in its brief points out that it has been frequently expressed by the courts in Illinois that evidence of other accidents by the same agency in the same condition is competent, not for the purpose of showing independent acts of negligence, but for the limited purpose of showing that the occurrence of such other accidents tends to show notice to the owner of such dangerous agency. In its brief defendant objects to the introduction of the interrogatories and answers on the ground that they do not establish that it had knowledge or notice that the subject escalator was in an unsafe condition at the time of the accident. The defendant also argues that they should not have been admitted because there was no showing that the defendant had notice of the danger to the plaintiff at the time of the accident since there is nothing to indicate that the defendant actually acquired any knowledge of these accidents from the time it took over the store until the date of the instant accident. That is not a necessary requirement for their admission. City of Chicago v. Jarvis, 226 Ill 614, 80 NE 1079. It is not reasonable to hold that when defendant took over the store it walked blindly into a situation about which it knew nothing. Gunderson, the engineer, was in close contact with the escalators and he remained as defendant’s employee. It is not reasonable to suppose that when each accident occurred Gunderson became blind and deaf. The admission of the interrogatories and answers was unnecessary to make a prima facie case for plaintiff. The admission of the interrogatories and answers, if error at all, was not such an error on the part of the trial court as would require a new trial.

The defendant also argues that prejudicial error resulted from the introduction in evidence of a photograph showing replacement of the old escalator by a new one with metal treads. The exhibit was admitted in evidence over defendant’s objections. Plaintiff’s Exhibit No. 9 was a picture portraying the new metal replacement escalator. The picture also prominently displays the following large printed sign on the temporary wall next to the escalator: “NEW ESCALATOR, SWIFT SMOOTH SA — ” The defendant argues that the letters “SA — ” leave no doubt that the word was “SAFE” and that from that exhibit the jury could draw an inference that the escalator which was replaced was not swift, smooth, or safe, and consequently, the exhibit was so prejudicial that it would require the court to allow the defendant a new trial. The defendant argues that the mere evidence of change or repairs made subsequent to an accident is admissible in a negligence case, but it does admit that there are certain exceptions to the rule. The plaintiff cites many cases where such evidence was admissible. There are many cases on this subject and each one must be determined on the basis of the facts therein.

Engel v. F. W. Woolworth Co., 213 F2d 482, was a suit brought for injury to a child whose fingers were caught between the moving tread and comb plate of an escalator in defendant Woolworth’s store. The defendant impleaded as a third-party defendant the Otis Elevator Company, which had manufactured and installed the escalator and contracted to maintain and service it. Evidence was introduced over the objection of Woolworth that after the installation of the escalator in 1938 Otis started to manufacture and install a new type of escalator with a new comb plate in which there was a smaller distance between the treads, and that Woolworth had caused forty-four escalators of this new type to be installed in its other stores throughout the country. The court instructed the jury that they should not infer proof of negligence on the part of Woolworth from the fact that later models came out with alleged improvements. The court held that such evidence was properly admissible when the jury was cautioned as it was in the case in question.

In the instant case, while, as has been pointed out, no instructions appear in the record, the plaintiff alleges that the defendant tendered — and the court at its request gave — an instruction based on the Engel case, and that consequently the evidence was properly admitted. It is apparent from the additional abstract that the Engel case was cited in order to convince the trial court that the photograph should be admitted. It is also apparent from the additional abstract that the defendant gave an instruction of the same character as the one given in the Engel case. In its reply brief defendant argues that the Engel case had nothing to do with replacement and it is completely dissimilar from the instant case. With that contention we cannot agree. The trial court’s refusal to grant a new trial to the defendant on the basis of alleged error in admitting the photograph must be sustained. Dallas v. Granite City Steel Co., 64 Ill App2d 409, 211 NE2d 907; Hecht Co. v. Jacobsen, 180 F2d 13.

The defendant also argues that the plaintiff’s cross-examination of the physician who testified in favor of the defendant was so abusive and prejudicial that the court must reverse the judgment for the plaintiff. Whether the examination of the physician fell within such characterization is not material; during plaintiff’s examination of the defendant’s witness the defendant’s counsel sat silent and made no objections, and in fact, went into the same subject in redirect examination. Subsequently, in recross-examination by the plaintiff the plaintiff again attacked the integrity of the physician. Again, counsel for defendant sat silent. At one place the court intervened and indicated that the examination was, in its opinion, improper. Again, counsel for defendant sat silent. It is a well understood rule of law that in order to argue a question in a court of review with reference to improper conduct of an attorney, the question must have first been raised in the trial court. This was not done, and the defendant has waived its right to question the propriety of the cross-examination of the physician. It cannot be said that the defendant did not have a fair trial. The questioning does not fall within the rule laid down in Belfield v. Coop., 8 Ill2d 293, 134 NE2d 249, or any of the other cases cited by the defendant.

The defendant also complains that the verdict awarding damages of $10,000 to the plaintiff was so excessive as to require a reversal. There is testimony in the record that the attending physician found that the plaintiff had a traumatic compression of the nerve roots emanating from the cervical and upper dorsal spine which resulted in numbness of the left forearm which was still present at the time of trial, and that such injuries were permanent. There was also testimony that there were three areas of thrombophlebitis in the left leg which caused swelling and impairment of function.

In Barango v. Hedstrom Coal Co., 12 Ill App2d 118, 138 NE2d 829, the court said:

“. . . There is no precise rule by which an award of damages can be fixed in an action for personal injuries because compensation for them does not lend itself to mathematical computation. In the case before us, the question of damages involves no question of the weighing of evidence. The only question presented to us is whether the jury on the evidence before them could have returned the verdict in issue. Here the trial court denied the motion for a new trial, and the denial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration. The responsibility rests upon a trial court to carefully consider the evidence in the case before it, and in a proper case where the verdict is excessive, to either enter a remittitur or grant a new trial. There is nothing in the record to indicate passion or prejudice on the part of the jury. The question before us is as to whether or not the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience.”

In the instant case the verdict was not excessive.

The trial court in the instant case properly overruled defendant’s post-trial motions for judgment notwithstanding the verdict and for a new trial. Finding no error in the record, the judgment of the Circuit Court of Cook County should be affirmed.

       We would also point out that there is nothing in the answers to interrogatories, nor anywhere else in the record in this case, with regard to the cause of those eleven “incidents.”

       Chief Engineer Gunderson testified that “the distance between the cleats was five-eighths of an inch.”

       While plaintiff’s ¼ inch heel would not catch in a 14 inch space, a ¼ inch heel (frequently found on women’s shoes in the current mode) could do so. For a ¼ inch heel the ⅝ inch space would be safer and vice versa. One difficulty arising from this approach to the problem of escalator design is that at any given time there are heels being worn in a great variety of widths. Of this we take judicial notice.

       There is no dispute over the common carrier status of defendant in the instant case.

       The photograph (Plaintiff’s Exhibit 9) portrayed a new replacement escalator and a large sign next to it of which the following was visible: “NEW ESCALATOR: SWIFT. SMOOTH. SA.” Plaintiff’s attorney in his argument to the jury dwelt heavily on the presence of a sign proclaiming the new escalator as being “swift, smooth and safe.”

       The plaintiff in the instant case testified that the shoes she wore at the time of the accident had been purchased from the defendant.


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John House, Defendant-Appellant.
    Gen. No. 50,916.
    First District, Fourth Division.
    July 22, 1966.
    Stradford, Lafontant, Fisher & Corrigan, of Chicago (Jewel Lafontant, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Samels, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

CHARGE: Murder.

JUDGMENT: The jury found the defendant guilty of murder and fixed his punishment at thirty-five years.

POINTS RAISED ON APPEAL:

(1) It was error for the trial court to deny continuance requested by the Public Defender.

(2) It was error for the court to permit the jury to determine the defendant’s punishment when the new Code of Criminal Procedure provides that the judge fix sentence and such Code was in effect at the time of trial.

(3) The evidence was not sufficient to show that the defendant shot the deceased with malice aforethought.

EVIDENCE. Testimony of State Witnesses:

Mrs. Gertrude Jones. She had seen her son, the deceased, at the morgue. On the day of the shooting he arose at 9:30 a. m., and stayed home until 2:00 p. m. He returned home for about 15 minutes around 5:00 p. m. He seemed sober at these times, and she had not seen him drinking that day.

William Robinson and Robert Brent. These witnesses testified to substantially the same facts. Robinson was a customer and Brent was the manager of the Normal Pool Hall, located at 438 East 63rd Street, Chicago. The deceased, Willie Jones, had been playing pool there the afternoon of June 14, 1961, and again that same evening. About 10:30 p. m. the defendant came in, wanted to play pool, laid a pool cue stick on the table at which Jones was playing, and when Jones tried to remove the stick, the defendant held the stick down on the table. Jones told the defendant not to “mess around” and called him a crazy son of a bitch, and added, “Otherwise I will kill you.” Brent testified that he had warned the defendant that fighting was not allowed in the pool hall. Defendant backed away from Jones and warned him, “You don’t threaten me, you greasy so and so.” Defendant then left. Jones continued playing pool with one “Kilroy.” About 20 minutes later defendant returned with a gun in his possession. The occupants, numbering about 25, began to “dash about,” trying to get out of the way. The defendant went up to Jones, and Brent went toward defendant and said, “House, don’t do that in here.” House told Brent to go on back, then began hitting Jones on the head with the gun. Jones did not hit the defendant, but tried to keep from being hit, and moved back along the row of pool tables until, at the fifth and final table, when Jones was hit the fourth time, the gun went off once. House then walked out of the door, the gun still in his hand. Jones twisted around, sat down on some cases of soft drink bottles, and collapsed. The police arrived about ten minutes later. Both Brent and Robinson had been about 10 or 20 feet away from the altercation; they both testified that the defendant had been whipping Jones with the barrel of the gun — a .45 caliber automatic. There were some minor discrepancies in the testimony of these two eyewitnesses; for example, they differed as td whether all five pool tables were in use at the time defendant initially intimidated Jones; whether defendant ran or walked after the shot went off; whether Jones had finished his game and was playing out the remainder of the time he had paid for, or if he was in the middle of the game. Since the trial occurred more than two years after the shooting it is to be expected that there would be some discrepancies in the testimony. Robinson testified that no liquor was served in the pool hall, that he had not smelled any liquor on Jones’ breath, that he and Jones had not been drinking together. Brent testified that he was in the washroom when House returned, but that he immediately went out when he heard a commotion; that Jones was over six feet tall, and weighed 200 pounds. Both witnesses had previously seen Jones and House around the poolroom over a period of time.

Hubert Harnois. Police Officer Harnois was assigned to a squad car in the Englewood District of Chicago. On the night of June 14, 1961, he received a radio dispatch to go to the Normal Pool Hall, and he arrived there about 11:12 p. m. He described the premises for the court: there was a center entrance to a rectangular store, and there were about five pool tables down the center of the store; there was an adjoining room to one side; and soft drink equipment and bottles were in the rear of the store. He found the body of the deceased in the rear of the store, lying face up, with arms and legs outstretched, over a stack of soft drink bottles. Between the second and third pool tables he found one expended cartridge case. The body was located about six or seven feet further away from the last table.

Claude Andersen, a Chicago Police Department detective, arrested the defendant pursuant to warrant in Los Angeles, California, on February 7, 1963. He was accompanied at that time by another detective. They brought the defendant back to Chicago by commercial air transport. During the trip back Andersen and the defendant conversed, and the defendant (according to Andersen’s testimony) said the deceased had been shooting pool and losing, and that the deceased’s partner had refused to play any longer even though the deceased wanted to “get even.” Defendant then walked to the table and put his cue stick there, whereupon the deceased objected to defendant’s taking the table. An argument ensued, and the deceased said, “Get off me, or I’ll kill you.” House said, “How can you kill me? You have no weapon.” House had also told Andersen that he then pulled a .45 caliber pistol from his pocket and slapped Jones on the side of the head with it; that the gun went off; that he knew he had shot Jones; that he then left the poolroom, went home, packed, and left the following day for Los Angeles. Andersen identified People’s Exhibit One — the .45 caliber gun — as the one which had been turned over to him by the Los Angeles Police Department on the day he arrested the defendant. Andersen told the court that the defendant had at that time admitted that it was the gun the defendant had used to shoot the deceased. It was brought out on cross-examination that the defendant had turned himself in voluntarily in Los Angeles. Detective Andersen did not know if defendant was involved with any other charge in California.

Dr. Eugene Tapia. As Coroner’s Pathologist for Cook County, Illinois, Dr. Tapia, a licensed physician, had on June 15, 1961, examined the body of Willie Jones at the Cook County Morgue. The cause of Jones’ death was a bullet wound which went through his chin and through his chest. The deceased’s blood showed an alcohol content well below an amount which would have rendered him intoxicated or under the influence of alcohol. Dr. Tapia admitted that he had not performed the blood test himself, but had relied upon the toxicologist’s report which had shown there was approximately 105 milligrams per cent of ethyl alcohol in deceased’s blood, or 45 milligrams below an amount sufficient to intoxicate a person. He also testified that the amount of alcohol which would evaporate from a deceased person’s blood between the time of death and the time of a blood sampling was negligible. When asked if he had, in his examination, noticed any scars or abrasions or marks around the head of the deceased, Dr. Tapia replied that the only thing he saw was the bullet wound of entrance and the bullet wound of exit in the chin.

Testimony of Defense Witnesses:

John House, the defendant, testified that he went to the Normal Pool Hall at about 8:30 p. m. Jones was arguing with one “Kilroy” because Kilroy was quitting playing. They were at the No. 3 table, and Jones was in a “frenzy.” House took a pool stick from the rack and placed it on the No. 2 table; Brent took the rack off the balls, and House turned the light on over the table. House commenced playing with one “Shorty,” and as he was preparing to make a shot Jones came alongside of House and twisted the stick out of his arm. When House protested Jones asserted that he had paid for the use of that table; House replied that Jones had not paid for the use of the table, that the light had been out and the table had been vacant. House then said, “What’s wrong ? Are you mad at me because you lost a game of pool?” Jones said, “No, I ain’t mad at you. But don’t you mess with me, because if you mess with me I’ll kill you.” This surprised House; he “couldn’t understand a man getting mad enough to say that he would kill another person over a pool game.” House indicated disbelief to Jones, then saw that Jones had a pool stick which he held in a threatening manner. Jones pushed him back and asked if he was crazy; the spectators laughed at this remark, since House had pulled out a gun. Jones turned to the spectators and said that now House would have to kill him; then Jones charged at House and told him, “You got to kill me,” to which House said that he did not have to kill him. As House got ready to leave, Jones came from behind and grappled with him; House had the gun in his hand, and figured that Jones was trying to get the gun from him. When Jones made a charge at House, House “slapped him . . . with the left hand . . . then . . . swung over at him with the pistol.” House thought he struck Jones on the head, and the gun “went off after I swung at him.” He was not holding the gun as a person normally does; he did not shoot intentionally. After the gun went off, Jones “smiled” at House. “Both of us were real surprised. So he smiles at me. I thought maybe the gun bullet had ricocheted some way. I didn’t have no idea it hit him. I turned and walked out.” House denied striking the victim more than once, denied initiating the argument, and denied having left the poolroom and returning twenty minutes later with the gun. He testified to being upset, and to leaving town after finding out that Jones was shot and killed. He stated that he was upset and panicky when he learned Jones had died, so two days after the incident he left Chicago and went to California. In California he turned himself in; the police from Illinois came and arrested him on January 3, 1963, approximately one and a half years after the killing. The defendant emphasized in his testimony that he did not wilfully and feloniously shoot Jones, and that he felt his life was in danger when he used the pistol on the deceased.

It was brought out on cross-examination that the defendant had not actually seen Jones playing pool. He was uncertain about the time and durations of the time of some of the incidents leading up to the shooting. He testified that this was the first time he had ever owned a gun, that he “bought it from a fellow” three days before the shooting, that he did not register the gun, and that he taught himself to load the gun. It was demonstrated to the jury that the gun could not fire unless it was first cocked and then held with a finger on the trigger. Defendant testified that the gun was not cocked or ready for firing when he walked into the poolroom. He reiterated that the deceased had the pool stick raised, but then the defendant stated that the deceased had grabbed a pool ball, and that thereafter the defendant accidentally shot the deceased. However, the defendant testified that at the time he struck the deceased with the gun he had his finger on the trigger, and that at no time had he held the gun by the barrel and struck the deceased.

OPINION:

(1) On March 18,1963, the Public Defender who had been appointed as attorney for defendant filed his appearance. On June 17, 1963, he was given leave to withdraw his appearance, and two other attorneys were allowed to file their appearance instanter as attorneys for the defendant, and the case was continued until July 26, 1963. On September 3, 1963, leave was granted to the two attorneys to withdraw their appearance, and the court again appointed the Public Defender as counsel for defendant. The case was continued until October 7, 1963. On September 13, 1963, the Public Defender filed his appearance. On October 17, 1963, the defendant moved for a further continuance through his counsel, the Assistant Public Defender. At that time the court pointed out the various attorneys who had been representing the defendant, and that the case had been called nine times in court. The court thereupon denied any further continuance to the defendant. The reason the Assistant Public Defender gave in support of his motion for a continuance was that there were possible witnesses, and that the neighborhood where the deceased was killed was a “transient neighborhood.” Under the circumstances, it cannot be said that the court abused its discretion in refusing to grant a further continuance. People v. Hannah, 54 Ill App2d 218, 203 NE2d 764; People v. VanNorman, 364 Ill 28, 2 NE2d 891.

(2) The defendant here argues that it was error to permit the jury to fix the punishment of the defendant. The criminal act was committed on June 14, 1961. The Code which was in effect at that time was the Criminal Code of 1874. The Criminal Code which was passed in 1961 became effective January 1, 1962. The Code of 1874 (Ill Rev Stats 1961, c 38, § 360) provided that “Whoever is guilty of murder shall suffer the punishment of death, or imprisonment in the penitentiary for his natural life, or for a term not less than fourteen years. If the accused is found guilty by a jury, they shall fix the punishment by their verdict; . . .” The defendant was tried and sentenced in the Circuit Court of Cook County on October 18, 1963. At that time the Criminal Code of 1961 was in effect. That Code provides (c 38, § 1-7):

(a) A person convicted of an offense shall be sentenced as provided in this Section.

(b) Upon conviction, the court shall determine and impose the penalty in the manner and subject to the limitations imposed in this Section.

(c) (1) Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, the jury may return a verdict of death. Where such verdict is returned by the jury, the court may sentence the offender to death or to imprisonment. Where such verdict is not returned by the jury, the court shall sentence the offender to imprisonment.

Section 9-1 provides:

A person convicted of murder shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years. If the accused is found guilty by a jury, a sentence of death shall not be imposed by the court unless the jury’s verdict so provides in accordance with Section 1-7 (c) (1) of this Code.

Ill Rev Stats 1965, c 131, § 4, Rights, etc., saved — Criminal cases, is now in effect and was in effect both at the time of the criminal act and at the time of the sentence. It provides:

No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.

In Kossakowski v. The People, 177 Ill 563, 53 NE 115, the court quoted the above section. In that case the verdict of the jury fixed the punishment of the defendant at three years in the penitentiary and the court pronounced the sentence in accordance with the verdict. At the time of the commission of the criminal act the Act providing for the imposition of indeterminate sentences and for a system of parole was in effect. That Act was in effect at the time the trial court fixed the sentence. The court said:

“. . . If the plaintiff in error was of opinion the manner of punishment provided by the parole system was more favorable to him than that provided by the law in force at the time of the commission of the offense, it was his privilege to have the provisions of such law applied by the court in his case, in accordance with the provisions of said section 4. He did not complain of the action of the jury in fixing a definite period of confinement in the penitentiary at the time of the rendition of the verdict, or in the motion for new trial, or when the sentence was pronounced. In the absence of any objection on his part it was competent to pronounce judgment upon the verdict rendered in accordance with the requirements of the law at the time of the commission of the offense. See Johnson v. People, 173 Ill 131.”

In the case before us, before the jury retired, the defendant, in person and through his attorney, elected that if the defendant was found guilty the jury should fix the terms of the punishment. The jury returned a verdict finding the defendant guilty, fixing the penalty at 35 years imprisonment in the penitentiary, and the court sentenced the defendant accordingly. As in the Kossakowski case, no point was raised by the defendant in his motion for new trial or motion in arrest of judgment. That case is controlling. The new Act did not mitigate the penalty. In both the Code of 1874 and the Code of 1961 the minimum imprisonment when the defendant was convicted of murder was 14 years. The trial court committed no error in sentencing the defendant as it did.

(3) The evidence was sufficient to prove defendant guilty of the crime charged.

DECISION:

We find no error in the record and the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       Ill Rev Stats 1961, ch 38, § 358 [Criminal Code of 1874, in effect when the killing occurred on June 14, 1961] :
      Murder.] § 140. Murder is the unlawful killing of a human being, in the peace of the people, with malice aforethought, either expressed or implied. . . . Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
      Ill Rev Stats 1961, ch 38, § 366:
      Justifiable homicide.] § 148. Justifiable homicide is the killing of a human being in necessary self-defense, or in the defense of habitation, property or person, against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, burglary and the like, upon either person or property, or against any person or persons who manifestly intend and endeavor, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.
      Ill Rev Stats 1961, ch 38, § 367:
      Self-defense.] § 149. If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.
      Ill Rev Stats 1961, ch 38, § 360:
      Murder — Punishment.] § 142. Whoever is guilty of murder, shall suffer the punishment of death, or imprisonment in the penitentiary for his natural life, or for a term not less than fourteen years. If the accused is found guilty by a jury, they shall fix the punishment by their verdict; . . .