author: CORYN, P. J.

text:
    People of the State of Illinois, Defendant in Error, v. James Ogden, Plaintiff in Error.
    Gen. No. 66-2.
    Third District.
    December 16, 1966.
    Harry H. Sonnemaker, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney, of Peoria, for appellee.
   CORYN, P. J.

This is an appeal by the defendant, James Ogden, from a judgment of conviction entered upon a verdict finding him guilty of armed robbery. The defendant argues here that the evidence failed to establish his guilt beyond any reasonable doubt, and that his conviction was obtained by the admission of prejudicial and inflammatory evidence.

We h¿ve thoroughly examined the report of proceedings, and find that the evidence is clearly sufficient to establish that defendant committed the crime of robbery at the Meadowbrook Dairy Store in Peoria on September 28, 1963. The victim of this robbery, store manager John Foster, identified the defendant and his accomplice, Jerry Horner, as the persons who robbed him, and Foster described the event in detail. Thomas Morris, a thirteen-year-old boy, testified that Ogden and Homer, on the evening of the crime, visited the home where he resided with his mother. He stated that they left but returned about an hour later, at which time he observed them counting some money, and saw Ogden with a watch that matched the description of the watch taken from Foster. Other witnesses testified for the State, and they tended to corroborate the testimony of Foster and Morris. Although defendant made no objection at the trial to the competence of the witness, Morris, on account of his minority, it is argued here that because of witness’ minority, little or no weight can be given to his testimony. We do not agree. The child was examined at the trial as to his understanding of the oath, and his answers to these questions reflect a sufficient understanding. His testimony also demonstrates him to be a person of ordinary intelligence. People v. Dilworth, 67 Ill App2d 384, 214 NE2d 9.

John Foster was questioned by the State about the investigation conducted by the Peoria police concerning the robbery. In response to the question, “What did Officer Maxwell do when he was in this store on that date?” he replied, “He had a mug book, and he told me to go through it.” This reference to a “mug book” was objected to by defendant, who moved for a mistrial. The trial court overruled the objection and denied the motion. The witness then testified that he had identified Ogden and Horner from the photographs shown him by Officer Maxwell, which photographs were neither offered nor admitted in evidence. The defendant argues that the use of the term “mug book” in Foster’s reply immediately prejudiced the jury against him, as this reference inferred that he had a criminal record.

The identification of accuseds, by victims of crimes, through the use of police photographs of known perpetrator of crimes is a time honored practice in the investigation of crimes and the detection of criminals. In People v. Maffioli, 406 Ill 315, 94 NE2d 191, the Supreme Court approved the admission of photographs marked with a police legend, for the reason that these photographs were not received in evidence for the purpose of proving prior arrests or convictions, but rather as being photographs from which the defendant was identified by the victims. Although we do not favor the use of the term “mug book” in a criminal trial, the ruling of the Maffioli case is an approval of the use of photographs as a tool for identification of suspects. Moreover, the photographs in the case at bar were not admitted or offered in evidence, and no reference was made by any witness to defendant’s prior record. Accordingly, we are of the opinion that the use of this term by the witness Foster, in response to a question, did not constitute reversible error.

Defendant contends that evidence by the State that he resided with a woman, not his wife, was highly prejudicial as an attempt to persuade the jury by showing him to be a person of bad morals. We have examined the record and find that no such evidence was elicited or offered.

The judgment of the Circuit Court is accordingly affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Harry E. Schoen, Plaintiff-Appellant, v. Caterpillar Tractor Co., a Corporation, Defendant-Appellee.
    Gen. No. 66-31.
    Third District.
    December 16, 1966.

      Moehle, Moehle & Reardon, of Pekin, for appellant.
    Miller, Westervelt & Johnson, of Peoria, for appellee.
   CORYN, P. J.

This is an appeal by the plaintiff from an order of the Circuit Court of Tazewell County dismissing plaintiff’s amended complaint on defendant’s motion. The complaint was for breach of an alleged oral contract of employment, and the trial judge held that this complaint should be dismissed because it appeared on its face that the alleged oral contract of employment was terminable at the will of either party, and therefore unenforceable at law. The order of the Circuit Court dismissing the complaint provided, inter alia, that “. . . the court doth order that the motion of the defendant to dismiss the amended complaint is allowed . . . and the amended complaint is hereby dismissed.” The defendant has filed with this court a motion to dismiss the appeal on ground that said order is not final and appealable, and that therefore this court is without jurisdiction to review this case.

The jurisdiction of Appellate Courts is limited to reviewing appeals from final judgments of the Circuit Courts, except in those specific cases where appeals from interlocutory orders are permitted by Supreme Court Rule. Article VI, §7, Constitution of Illinois, 1870; Supreme Court Rule 31. In Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371, a final and appealable order was defined as follows:

“To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.”

The obvious purpose therefore is to prevent a multiplicity of suits and piecemeal appeals. Consequently, those trial orders dismissing or striking complaints, which if affirmed, might result in the filing by the plaintiff of a new suit or amended complaint arising from the same transaction, are found not to be final and appealable because they have not terminated the litigation between the parties. If a plaintiff desires to stand on his complaint after it has been dismissed for failure to state a cause of action, he should so indicate to the trial court, whereupon a final judgment can be entered for the defendant. If this judgment is affirmed, it could be used in bar, through the principles of res judicata, of any future suits by the plaintiff against the defendant arising out of or based on the same transaction. See Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill 200, 75 NE 473; Prange v. City of Marion, 297 Ill App 353, 17 NE2d 616; Board of Education of Grant Community High School Dist. No. 121 v. Board of Education of Richmond-Burton Community High School Dist. No. 157, 301 Ill App 228, 22 NE2d 400; Aetna Plywood & Veneer Co. v. Robineau, 336 Ill App 339, 83 NE2d 896; Curtis v. Albion-Brown’s Post 590 American Legion, 65 Ill App2d 473, 213 NE2d 621.

Accordingly, we are of the opinion that the order of the Circuit Court dismissing plaintiff’s complaint is not a final and appealable order, and therefore this appeal is dismissed.

Appeal dismissed.

ALLOY and STOUDER, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Appellee, v. Ruth Dell, Appellant.
    Gen. No. 65-135.
    Second District.
    December 20, 1966.

      Julius Lucius Echeles, of Chicago, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan, and William Graham and Jack Hoogasian, Assistant State’s Attorneys, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant was convicted of theft after a jury trial in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, and sentenced to a term of five to ten years in the Illinois State Reformatory for Women.

The indictment, filed December 7, 1964, charged that the defendant “committed the offense of theft, in that she knowingly obtained control over 129 pairs of trousers, having a value exceeding One Hundred Fifty Dollars ($150), the property of Myron Steinberg, knowing that said trousers had previously been stolen from Myron Steinberg by another and Ruth Dell thereafter knowingly abandoned such trousers in such manner as to deprive Myron Steinberg permanently of the use and benefit of said trousers, in violation of Section 16-1 (d), Chapter 38, Illinois Revised Statutes 1963. . . .”

This appeal is brought on defendant’s contentions that there was a fatal variance between the proof of ownership of the pants and the ownership alleged in the indictment; that there was no proof that the pants introduced into evidence were ever possessed by the defendant; that there was no proof that the defendant knew that the pants allegedly in her possession were stolen; that there was no proof as to the value of the pants; that the defendant was denied her right to trial by jury in that the court directed the jury to evaluate the pants at $250; that the defendant was denied a fair trial because the State attempted to introduce evidence of other, unrelated crimes; and, finally, that the conviction cannot be sustained as it is based on the uncorroborated and improbable testimony of an accomplice to the alleged crime. We will deal with each of these contentions in the order we have indicated.

As we have seen, the indictment stated that the trousers were “the property of Myron Steinberg.” At the trial, Steinberg testified that he was a partner in a business known as the Illinois Railroad Salvage Store. Upon his arrival at the store on the morning of July 21, 1964, Steinberg noticed that it was in disarray and that an entrance had been accomplished by the removal of five or six cement blocks from the south wall. On cross-examination, he stated that his partner was Norman Cutler.

Cutler testified that he was a partner of the Salvage Store and that on July 21 he noticed, in addition to the facts related by Steinberg, that the entire stock of men’s work pants was missing. When asked if he recognized People’s Exhibit No. 1 for identification, consisting of 129 pairs of pants, Cutler replied “Those are my pants.” Later, Cutler was asked who owned People’s Exhibit No. 1 on July 20, 1964, and the following colloquy resulted:

“A. I did.
“Q. In addition who else owned it ?
“A. I have a partner.
“Q. What is his name ?
“A. Myron Steinberg.”

The defendant cites several Illinois cases to the point that the specific ownership of stolen property is an essential allegation in an indictment and, as such, must be proven, as laid in the indictment, at the subsequent trial. The People v. Cohen, 352 Ill 380, 382, 185 NE 608 (1933); The People v. Krittenbrink, 269 Ill 244, 245, 109 NE 1005 (1915). The reason for the rule was to permit the defendant to plead either a prior acquittal or conviction in the event of a later prosecution for the same offense. The People v. Smith, 341 Ill 649, 651, 173 NE 814 (1930).

However, under the Criminal Code of 1961, the owner of property as used in the section entitled “Part C. Offenses Directed Against Property” is defined as follows:

“.....‘owner’ means a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.” (Ill Rev Stats 1963, c 38, § 15-2.)

Subsequent cases have held that this section provides that specific ownership of the stolen property in the person named in the indictment is not necessary if it is shown that he has some possessory interest in the property at the time of the offense, such as an agent of the owner or bailee. The People v. Hansen, 28 Ill2d 322, 338, 339, 192 NE2d 359 (1963); People v. Tomaszek, 54 Ill App2d 254, 261, 262, 204 NE2d 30 (1964).

Here, Cutler indicated that the trousers were owned by his partner and himself, that is, that they were partnership property. It is true that the indictment does not aver that the trousers were owned by the partnership but Steinberg, as a partner, clearly had a right of possession “or other interest” in the property as required by section 15-2. We, therefore, feel that the ownership of the trousers was adequately established at the trial as alleged in the indictment.

Charles Freberg, the key witness for the State, a twenty-one-year-old service station attendant, testified that he received a telephone call from the defendant at approximately 2:00 p. m. on July 21, 1964, and that she informed him that “she had some pants for me, if I wanted to come up to the house and pick them up in the evening.” Accordingly, Freberg visited the defendant’s house at about 6:30 p. m. that evening and went to her bedroom with the defendant, her son, Jeffery, one Rodney Gummow, and another woman named “Pat.” Freberg stated that the pants that comprised People’s Exhibit No. 1 were stacked on the bed and that the defendant “told me that she wanted me to sell the pants for her; that she wanted a dollar a pair for her and anything that I could get over that I could have.” Freberg and the others then carried the pants to the trunk of his car and he subsequently sold them for $175. Freberg’s version of what took place at the defendant’s home is sharply controverted by the testimony of Rodney Gummow. Nevertheless, Freberg’s testimony was competent evidence, to be weighed and evaluated by the jury, that the pants were in the possession of the defendant. While no direct proof was introduced to show that the defendant knew at that time that the pants were stolen, such knowledge can be established by indirect or circumstantial evidence. The People v. Stewart, 20 Ill2d 387, 392, 169 NE2d 796 (1960); The People v. Grodkiewicz, 16 Ill2d 192, 197, 157 NE2d 16 (1959). Indeed, although guilty knowledge is an essential element of the crime, direct evidence of that knowledge is seldom available. It is sufficient if the circumstances that surround the possession of the property are such to induce a belief in a reasonable mind that the possessor had knowledge that the property was stolen. The People v. Lindstrom, 9 Ill2d 616, 618, 138 NE2d 495 (1956). The defendant’s unexplained possession of 129 pairs of men’s wash pants within a short time after their disappearance; their location in the bedroom of her home; and her request of Freberg, a service station attendant, to sell them for $1 per pair, are all circumstances that could reasonably induce a belief that she was aware that they were stolen. We are of the opinion that the conclusion of the jury that the guilty knowledge of the defendant in this respect was proven beyond a reasonable doubt is supported by the evidence.

The defendant next urges that since there was no evidence of the fair cash market value of the trousers at the time and place of the theft, the conviction must be reversed. She points out that in a prosecution for theft that the value of the property determines the seriousness of the offense and, hence, the punishment and that, therefore, the market value of the pants was of great importance in her case and should not have been left to vague, indefinite and uncertain proof. The only evidence introduced as to the value of the pants was the testimony of Norman Cutler. He stated that he had purchased trousers for his business for a period of seven years and that during that time he had purchased some 7,000 pairs of trousers. Cutler was then asked as to his opinion as to the “value” of the trousers in People’s Exhibit No. 1. He replied “$250.” No evidence was offered by the defense to rebut that evaluation.

It has been held that testimony in regard to the value of stolen property may be received in response to a question as to its “value” or “worth” and be sufficient proof, by itself, of the market value at the time of the alleged crime in the absence of any objection.. The People v. Officer, 10 Ill2d 203, 206, 139 NE2d 773 (1957); The People v. Howry, 6 Ill2d 132, 140, 126 NE2d 683 (1955).

In view of his past experience in the business, Cutler was qualified to give his opinion as to the value of the trousers before the court, and, since no evidence to the contrary was offered, that opinion, as expressed, was adequate evidence of the market value of the property.

The defendant also raises the point that the trial court directed the jury to find that the value of the trousers was $250 and that she was consequently denied her right to trial by jury. There is a sharp disagreement between the parties as to the completion of the verdict form as to value. The defendant claims that the trial judge had written in the figures “$250” as the value of the property before the verdict form was submitted to the jury. The State insists that the value was added by the jury. We note, however, that this point was not raised by the defense in its post-trial motions for judgment notwithstanding the verdict, in arrest of judgment, or for a new trial. Accordingly, we will not consider it for the first time on review. The People v. Irwin, 32 Ill2d 441, 443, 207 NE2d 76 (1965); People v. Bridges, 67 Ill App2d 236, 239, 214 NE2d 539 (1966).

Freberg was asked, on direct examination, whether he had ever been requested by the defendant in the past to sell anything for her. Over objection, he stated that on five or six prior occasions, she requested him to sell “rings and watches.” At this point, the court sustained the objection of the defense and advised the jury to disregard his testimony in that respect. The defendant contends that the court should have granted the motion for a mistrial. The question and answer were clearly improper. However, the trial court effectively cured the error by its prompt admonition to the jury to disregard the exchange.

Lastly, it is argued that the conviction is based solely on the uncorroborated testimony of Charles Freberg, an admitted accomplice, and that the testimony itself is so burdened with contradictions and improbabilities as to be wholly lacking in credibility.

The uncorroborated testimony of an accomplice is always scrutinized carefully due to its inherent weaknesses. The People v. Hermens, 5 Ill2d 277, 285, 125 NE2d 500 (1955); People v. Zaeske, 65 Ill App2d 495, 212 NE2d 734 (1965). Under the law in Illinois, however, it can be sufficient by itself to sustain a conviction if it establishes the guilt of the accused beyond a reasonable doubt. The People v. Hansen, supra, p 332; The People v. Bugg, 345 Ill 210, 216, 177 NE 718 (1931).

An affidavit signed by Freberg in January of 1965 appears in the record. In that affidavit, Freberg states that Ruth Dell had no connection with the robbery of the Railroad Salvage Store in July of 1964. Freberg further admits telling an attorney in August of 1964 that he had only implicated the defendant in the crime because of threatened prosecution. He also admitted a telephone call to the defense counsel shortly before the trial for advice as to his testimony. During the trial, Freberg testified that although he had sold the trousers for only $175, he paid the defendant $200 “just to be over with it.” The defendant maintains that these self-contradictions and improbable sequence of events as related by Freberg render his testimony insufficient upon which to predicate the conviction.

A close reading of Freberg’s testimony reveals, however, a clear thread of consistency, and that consistency is based on his persistent, deep fear of the defendant. He testified that after receiving an offer of $175 for the pants that Ruth Dell told him she would take no less than $200. Therefore, on July 22, 1964, he paid her the $200 and told her he “didn’t want to have any more” and he gave her $25 of his own money “just to be over with it.” After he was apprehended by the police, he received a phone call from the defendant on July 28 in which she told him that “she found out I squealed on her, and she was going to send a couple of boys down to pick me up and bring me to her house.” Later that evening, Gummow and Jeffery Dell did drive to the service station where Freberg was employed to find him but were diverted by his employer. On another occasion, shortly thereafter, Freberg while in his car, was followed by the defendant and three men until he succeeded in evading them. He described the defendant’s home as set back 600 to 700 feet from the road on a tract of 3 or 4 acres of land, entirely surrounded by a large cyclone fence, and that to gain entrance it was necessary to identify one’s self over a loud speaker before the gates would open mechanically. He explained that his statements to the lawyers and his affidavit were as a result of “fear” and “worry” of reprisals from the defendant.

It is commonplace to recite that the credibility of the witness and the weight of the evidence are matters within the province of the jury and the trial court. If they are convinced that the accused is guilty beyond a reasonable doubt, even on the uncorroborated testimony of an accomplice, we will not substitute our judgment for theirs unless it plainly appears that such a degree of proof is lacking. The People v. Hansen, supra, p 332; The People v. Rudnicki, 394 Ill 351, 357, 68 NE2d 723 (1946).

From the record before us, it does not appear that the court or jury abused their function in this instance. The judgment and conviction of the trial court will be affirmed for the reasons enumerated.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


text:
    Edwin Korleski, Plaintiff-Appellee, v. Lorraine Needham, Administrator of the Estate of Harold E. Needham, Deceased, and Shaw-Barton Company, Inc., a Corporation, Defendants-Appellants.
    Gen. No. 65-141.
    Second District.
    December 20, 1966.

      Knight and Knight, of Rockford, for appellant.

      Miller, Thomas, Hickey & Collins, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This appeal is prosecuted from a judgment against the defendant, Shaw-Barton Company, Inc., a corporation, in the amount of $25,000, entered on a jury verdict, for personal injuries and property damage suffered by the plaintiff, Edwin Korleski, as a result of an accident allegedly caused by an agent of the defendant during the course of his employment.

The complaint, filed August 22, 1963, originally contained two counts. Count I was against Lorraine Need-ham, as Administrator of the Estate of Harold E. Needham, deceased, and charged that as a direct and proximate result of the careless and negligent conduct of Harold E. Needham a collision occurred between an automobile driven by Needham and one driven by the plaintiff. The alleged negligence of Needham was specified as failure to maintain a proper lookout for plaintiff’s automobile; operation of his auto at a high and dangerous rate of speed; and violation of sections 70 and 86 of the Uniform Act Regulating Traffic on Highways in that he failed to obey a stop sign at the intersection where the collision occurred.

Count II repeated the allegations of Count I and further charged that at the time of the collision Need-ham was “then and there in the employ of the defendant, Shaw-Barton Company, Inc., a corporation, as its agent, servant or employee and at the time of the occurrence herein complained of, said Harold E. Needham was in the course of his employment as such agent, servant or employee. . . .”

Both counts alleged plaintiff’s freedom from contributory negligence, pain and suffering, permanent and lasting personal injuries, loss of profits, and sizable obliga»tions for medical care and attention, and prayed for judgment in the amount of $50,000 against each defendant.

Count I was dismissed before trial as a result of an apparent settlement with that defendant and does not concern us here. Shaw-Barton filed an answer to Count II that contained a general denial and a further allegation that the negligence that caused the accident, if any, was on the part of the plaintiff or “some third person, firm, or corporation, their agents, servants or employees, over whom defendant had no control . . .” The plaintiff filed a formal reply to this answer that denied the additional allegations.

On June 4, 1965, pursuant to order of court, the complaint was amended to include a Count III against Shaw-Barton that repeated the allegations of the earlier pleadings and added a paragraph in regard to property damage to Korleski’s car. On June 8, 1965, Shaw-Barton filed an answer to the new Count that contained a further allegation identical to that used against Count II. No reply to this answer was filed until July 30, 1965, several weeks after the trial.

The record indicates that the accident occurred at approximately 7:10 p. m. on November 8, 1962, at the intersection of Belvidere Road and White Pigeon Road in Boone County. The plaintiff was traveling in a northwesterly direction on Belvidere Road on his way home to Rockton from Sycamore. He was driving about 50 to 55 miles per hour, or about 10 miles below the posted speed limit. The road was clear and dry. When he was approximately 60 to 70 feet from the intersection of White Pigeon Road, he noticed dim lights to his left. White Pigeon Road intersects Belvidere Road on a diagonal at this point and continues in a northeasterly direction. The next thing that the plaintiff remembered was that Needham’s car was directly in front of him and the collision occurred. Photographic exhibits, introduced by the defendant during cross-examination, and the testimony of the plaintiff, indicate that there were stop signs on White Pigeon Road on both sides of its intersection with Belvidere. There were no stop signs for traffic on Belvidere itself. The plaintiff also stated that he heard no horn or other warning; that Needham’s car was traveling about eighty miles an hour at the time of the impact; and that it had not stopped at the intersection. After the collision, Needham’s car continued for 87 feet and sheared off the stop sign on the opposite side of the road. Needham died in an ambulance shortly after the accident.

Three doctors testified for the plaintiff relative to his injuries. Korleski himself was the only other witness to testify. The defendant rested at the conclusion of plaintiff’s case and offered no witnesses of its own.

The defendant bases this appeal on seventeen separate instances of reversible error on the part of the trial court. However, many of the instances of alleged error, if not all, are predicated on the points herein discussed so that the essence of this appeal can be considerably shortened. Defendant first urges that the trial court committed fatal error in its denial of its motion for a directed verdict at the conclusion of the evidence and to arrest judgment since neither the pleadings or evidence was sufficient to sustain the verdict. In our consideration of this point, it would be appropriate to also examine defendant’s contention that a certain settlement contract between Shaw-Barton and the Estate of its deceased employee, Needham, was improperly admitted into evidence.

At the very outset of the trial, over the repeated objections of defendant, the trial court admitted into evidence for the purpose of proving an admission against interest on the part of Shaw-Barton, an Industrial Commission of Illinois Settlement Contract between Lorraine E. Needham as widow of Harold E. Needham, deceased, Petitioner, and Shaw-Barton, Inc., Respondent, and approved by the Commission on February 14, 1964. That contract recited, in part, as follows:

“That on the 8th day of November, 1962, Harold E. Needham of 330 Highland Avenue, Algonquin, Illinois, was killed in an accident that arose out of and while in the employment of Shaw-Barton, Inc. .

The defendant contends that the admission of that document was improper since it did not constitute an admission against interest. We do not agree with this contention.

Any statement, oral or written, voluntarily made by a party to an action that contradicts the position taken by that party may be introduced into evidence as an admission against interest if it is pertinent to the issues of the case. Nelson v. Union Wire Rope Corp., 31 Ill2d 69, 115, 199 NE2d 769 (1965); Susemiehl v. Red River Lumber Co., 306 Ill App 430, 435-441, 28 NE2d 743 (1940).

In the recent case of Bassi v. Morgan, 60 Ill App2d 1, 4-6, 208 NE2d 341 (1965) the Appellate Court considered a case that involved a suit brought by a passenger against the driver of an automobile for injuries suffered in an accident caused by his allegedly wilful and wanton conduct. The defendant charged that at the time of the accident the plaintiff was his employee in the course of her employment and that her only relief was under the Workmen’s Compensation Act. As proof of this allegation, defendant sought to admit into evidence the plaintiff’s application for adjustment of claim before the Industrial Commission of Illinois. The reviewing court, in reversing the judgment, held that the application should have been admitted into evidence as an admission against interest.

The admission itself was not conclusive as a matter of law against the defendant. It was properly before the jury to aid it in its final determination but was subject to such rebuttal as defendant saw fit to introduce against it. However, the contract was, of itself, sufficient evidence to establish a prima facie case in favor of the plaintiff on the issue of the agency.

The plaintiff testified that at the time of the accident he was driving approximately 10 miles per hour under the legal speed limit. He was familiar with the intersection and had traveled on Belvidere Road “many times” previously. The road was clear and dry and his headlights were on. Suddenly, Needham’s automobile “lit right out” and the two vehicles collided. He further stated that Needham was driving through the intersection “about eighty miles an hour” and that he did not sound a warning or make any effort to stop.

The defendant made no effort to counter the testimony of Korleski or rebut the evidence that Needham was, at the time of the accident, an employee of Shaw-Barton and in the course of his employment. Under the circumstances, there can be no question about the propriety of the trial court’s refusal to direct a verdict against the plaintiff or in refusing to arrest the judgment. The plaintiff had clearly introduced sufficient evidence to establish a prima facie case. Brill v. Davajon, 51 Ill App2d 445, 449, 450, 201 NE2d 253 (1964). The record also discloses that the further contentions of the defendant that the plaintiff was guilty of contributory negligence and that the verdict was against the manifest weight of the evidence was without merit.

The defendant further complains that Dr. Parker C. Hardin, a witness for the plaintiff, was improperly permitted to express his conclusions as to the nature of the plaintiff’s injuries and their probable duration. Dr. Hardin had examined the plaintiff eleven days before the trial for the purpose of testifying and had not treated Korleski at any time. Ordinarily, an examining physician cannot base his opinions on the subjective complaints of the injured party unless he has also treated the party for those injuries. National Malleable Steel Castings Co. v. Industrial Commission, 377 Ill 169, 36 NE2d 249 (1941); Gaydos v. Peterson, 300 Ill App 219, 226, 20 NE2d 837 (1939). The expert opinion of an examining physician is not disqualified, however, merely because he has taken a history of the injuries if the opinion itself is based on his objective examination. Crane Co. v. Industrial Com., 32 Ill2d 348, 353, 354, 205 NE2d 425 (1965). The record indicates that Dr. Hardin thoroughly examined Korleski and that his opinions were based on that examination and a complete set of x rays taken under Hardin’s direction. Error was committed by the trial court in permitting Dr. Hardin to review the history taken from Korleski relative to the accident and injuries sustained. The admission of incompetent testimony by a physican does not justify a reversal where his testimony is merely corroborative of matters already proven by other evidence. Becherer v. Best, 74 Ill App2d 174, 219 NE2d 371, 375 (1966); Greinke v. Chicago City Ry. Co., 234 Ill 564, 574, 85 NE 327 (1908). In this case all that Dr. Hardin testified to had been previously admitted into evidence by other competent testimony.

Defendant next urges that the failure of the plaintiff to reply to his affirmative defense contained in his answer to Count III of the Amended Complaint amounted to an admission of the truth contained therein. Count III, as we have seen, related to property damage suffered by the plaintiff. A similar “affirmative defense” had been contained in defendant’s answer to Count II and was countered by a timely reply from the plaintiff. The trial court was clearly acting within the realm of its discretion by permitting plaintiff to file its reply after the trial was concluded.

In any event, the alleged affirmative defense raised no new issue that we can determine and was merely an argumentative denial of the complaint. It has been held that allegations in an answer which are merely an argumentative, not an affirmative defense, do not require a reply. Mandel v. Jordan, 57 Ill App2d 276, 277, 207 NE2d 12 (1965).

Defendant also charges that the court erred in giving plaintiff’s instructions 5, 7, 9, 11, 14 and 15, and that, as a result, the jury was incorrectly instructed as to the law governing the case. It is apparent from the record, however, that the defendant made no specific objections to these instructions either at the conference on instructions or in his post-trial motions. It is well established that a reviewing court will not consider alleged error in the giving of instructions unless specific objections to the instructions have been made before the trial court. Prignano v. Mastro, 61 Ill App2d 65, 76, 77, 209 NE2d 12 (1965); Vasic v. Chicago Transit Authority, 33 Ill App2d 11, 11p-11r, 180 NE2d 347 (1961).

Lastly, we consider defendant’s contention that the Court wrongfully refused to give the jury its instructions 8, 31, 32, 33, 35, 36, 37, 40 and 41. Defendant’s instruction 8 was concerned with the impeachment of a witness and was properly refused since there was no evidence before the jury remotely connected with an impeachment. Defendant’s instructions 31, 32, and 33 embodied correct statements of the law of agency but that law was also contained in plaintiff’s instructions 9 and 11 which were given to the jury for its deliberations. Defendant’s instructions 35, 36, and 37 involved the Illinois statutes regulating traffic on Belvidere and White Pigeon Roads at the time of the accident. They were refused as a group by the trial court since no reference was made to the stop sign at the intersection controlling traffic on White Pigeon Road. Under the circumstances we agree with the court that the instructions might have misled the jury on that point and feel that they were properly refused. Instructions 40 and 41 repeated material covered by plaintiff’s instructions that had been given without objection from defendant. Taken as a whole, the instructions given to the jury properly informed them as to the law pertinent to the case and we do not agree that the defendant was deprived of a fair trial or prejudiced in any way.

We do not consider here several other errors alleged by defendant as they are of insufficient merit to warrant a prolongation of this opinion.

For the reasons enumerated, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: MR. PRESIDING JUSTICE MORAN

text:
    Warren L. Dixon and Daisy V. Dixon, His Wife, Plaintiffs-Appellants, v. The County of Kane, State of Illinois, a Body Politic and Corporate, Defendant-Appellee.
    Gen. No. 65-142.
    Second District.
    December 20, 1966.

      Fawell and Larson, of Naperville, for appellants.
    William R. Ketcham, State’s Attorney, of Geneva, and G. William Richards, Assistant State’s Attorney, of Aurora, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This appeal arises from a declaratory judgment action. In 1954 the plaintiffs purchased two and one-half lots on Molitor Road in Kane County. At that time Molitor Road was a two-lane gravel road, typical of the country area. Plaintiffs built their home on the property in question abutting a small creek to the rear. The entire area was then zoned “F” Farming in the unincorporated area of Kane County and the only uses of property were a few single-family residences. In 1960 the East-West Toll Highway was constructed about 700 feet North of the plaintiffs’ property and a cloverleaf interchange was built as part of the toll highway system. In 1957 Farnsworth Avenue was extended along the East boundary of the plaintiffs’ property connecting to the Toll Road Interchange. Farnsworth Avenue is now a four-lane highway with a median strip.

This extensive road construction caused the beginning of change in the neighborhood. Instead of being on a country road the plaintiffs were now located at the Southwest corner of Molitor Road and Farnsworth Avenue, a busy highway intersection. The Northeast corner was rezoned for business purposes by the defendant and a gasoline service station has been installed and is operating on that property. Immediately North of the service station the property was also rezoned for business by the defendant and is used by a cement contractor for excavating machinery. East of the contractor’s yard the property is zoned for manufacturing purposes and is within the City of Aurora. All of the property South of the subject property on the West side of Farnsworth Avenue has been zoned for business. West of the subject property, but not adjacent, is a large tract zoned for multiple-family use and currently being developed with apartment buildings in the City of Aurora.

The plaintiffs received an offer from an oil company to sell a portion of their property for $47,500. They applied to the County zoning authorities for a reclassification to permit the proposed service station. On two occasions the Zoning Board of Appeals of Kane County recommended that the request be granted but each time the Board of Supervisors of that County denied the recommendation. Thereupon, this suit was filed in declaratory judgment to test the validity of the single family classification.

The factors to be considered in a zoning case have been reiterated on numerous occasions, Bauske v. City of Des Plaines, 13 Ill2d 169, 180, 148 NE2d 584 (1957), and it would extend this opinion unnecessarily to repeat those factors. Illinois Courts have repeatedly held that the factor of the greatest importance is the use and zoning of nearby properties. Jacobson v. City of Evanston, 10 Ill2d 61, 70, 139 NE2d 205 (1956).

Applying that test to the subject case it appears that the bulk of the nearby properties are either zoned or used for business purposes and for other purposes not compatible with single-family residence uses. It is obvious that the trend of development in the area is toward nonsingle-family uses. This has been recognized by the zoning authorities in the City of Aurora and even by the Board of Supervisors of Kane County. The defendant rezoned the Northeast corner of the intersection for the very purposes which plaintiffs now seek. That rezoning was apparently not contrary to either good zoning or planning practice. That rezoning installed the first gasoline service station in the area, but now it appears that good planning would prohibit another gasoline station across the street. This appears to be the sum total of the defense.

The Director of Planning for Kane County was the only witness appearing for the defendant. He did not agree that the presently existing gasoline station was good planning or zoning but he felt that its presence had no effect on the proper classification of the subject property. His view of the trend of development was that it was single family. We find this very hard to accept in view of the fact that since the construction of the Toll Highway and Farnsworth Avenue about the only new construction in the area has been other than single family.

The defendant makes the usual arguments that the Zoning Ordinance of Kane County is presumed valid, that we should not substitute our judgment for that of the local authorities, and that even though plaintiffs would suffer a loss in value of their property, this is not determinative.

We acknowledge the usual rules and we hesitate to overrule the local authorities and the trial court, however, in this case we would be remiss in our duties if we upheld the zoning.

It is not the loss in value suffered by the plaintiffs that is determinative. The proper inquiry is — is this loss necessary because of a corresponding benefit to the general public ? In the case at bar we find no benefit to the general public. Uses such as the plaintiffs’ purpose already exist in the area. A continuation of the single-family zoning on the plaintiffs’ property would not benefit the general public at all. As we have indicated the uses and zoning of surrounding property and indeed the trend in the area is towards the type of uses now proposed by the plaintiffs. We, therefore, conclude that the single-family residential zoning classification is invalid.

Our decision to invalidate the present zoning does not finally resolve matters between these litigants. There remains the question of granting appropriate relief. The evils in a decision which merely invalidates existing zoning were clearly pointed out by the Supreme Court in the case of Sinclair Pipe Line Co. v. Richton Park, 19 Ill2d 370, 167 NE2d 406 (1960). The property remains unzoned and can be used for anything or the County Board of Supervisors may take further action and if the plaintiff is not satisfied, further litigation results. Neither of these results are desirable. On the other hand, unless the plaintiff proves a specific proposed use for the property, the court may not assume the roll of a zoning body and determine the most appropriate use. If no specific use is proposed, the most the court can do is invalidate the zoning. If a specific use is proposed, the court, after invalidating the zoning, may authorize the proposed use if that is reasonable under the circumstances of the case. Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323.

In this case the plaintiffs submitted evidence in the nature of a plat showing a proposed gasoline service station. In their complaint plaintiffs prayed that the present zoning be held unconstitutional and void, that they be permitted to use their property for any of the uses in the “B-l Business District” or in the alternative that they be authorized to construct a gasoline service station as proposed. Under our recent decision in the case of Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323, we have no right or authority to rezone the property in question for “B-l Business” use. In so doing we would be operating as the Zoning Board of Kane County. In addition we would be authorizing many business uses, most of which were beyond the evidence presented. However, since the plaintiff did present evidence concerning a proposed use of the property and since this appears to be a reasonable use, we can and do direct that the plaintiffs be permitted to construct a gasoline service station upon their property in accordance with the evidence.

The case should therefore be reversed and remanded to the trial court with instructions to enter a decree authorizing the use of the subject premises for gasoline service station purposes in accordance with the evidence presented and to hear further evidence, if necessary.

Reversed and remanded with directions.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    Matt Rogers, Plaintiff-Appellee, v. Wilbert Gehrke, Defendant-Appellant.
    Gen. No. 66-33.
    Second District.
    December 20, 1966.

      Snyder, Clarke, Dalziel, Holmquist and Johnson, of Waukegan, for appellant.
    Fred Lambruschi, of Chicago, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On December 3, 1961, the plaintiff, a man sixty-one years of age, drove his car onto Route 12 in Lake County and was thereupon hit from the rear by defendant. The plaintiff was employed at a salary of $700 per month and lost three weeks’ work as a result of his injuries. By stipulation the jury was instructed that plaintiff’s car damage amounted to $1,030. The plaintiff incurred medical expenses of $125 for a total out-of-pocket expense in the amount of $1,680. A jury awarded plaintiff $20,000 for his injuries and the defendant appeals to this court on the single ground that the jury verdict was so excessive it demonstrated passion, prejudice or partiality.

We have recently had occasion to consider this question in the case of Wyer v. McKeown-Phalin Chevrolet, Inc., 74 Ill App2d 283, 219 NE2d 355 (1966). We held that a jury verdict of $8,500 based upon special damages of $552 was not excessive.

In the case of Lau v. West Towns Bus Co., 16 Ill2d 442, 158 NE2d 63 (1959), the Supreme Court held that a jury award of $75,000 based upon special damages of $1,500 was not excessive.

The very nature of personal injury cases makes it impossible to establish a precise formula to determine that one award is excessive and another is not. Each case must be determined by its own circumstances having in mind that the trial judge and jury saw and heard the witnesses and are best able to determine that sum which will fairly compensate an injured plaintiff entitled to a verdict.

In the case at bar the evidence indicated that the plaintiff had an impacted fracture of the lower end of the right fibula extending into the joint surface. X rays indicated a very stiff back with spasm and pain. There was irregularity and bone chips in the weight bearing area along the fibula causing stiffness and pain. The plaintiff also suffered from a narrowing of the inter-vertebral space with cystic generation of the marrow. There was a narrowing between the fourth and fifth lumbar vertebrae and also traumatic arthritis with cystic generation in the right ankle and a ruptured disk with neuritis in the sciatic nerve as a result of the condition of the disk. In the doctor’s opinion these conditions were permanent. The plaintiff testified that he had never been free of pain in his back since the accident and that when he walked his foot had a habit of giving way. The plaintiff’s evidence is absolutely uncontradicted since the defendant presented no witnesses and no evidence of any kind.

The defendant’s brief in this court specifies excessiveness of verdict as the only ground for appeal. In the post-trial motion filed in the trial court defendant specified the following points:

“(1) The judgment and verdict were contrary to the law;
“(2) the judgment and verdict were contrary to the evidence and to the manifest weight thereof;
“(3) the verdict award was grossly excessive, vindictive and punitive. The award was so unreasonable and excessive that it demonstrated passion and prejudice on the part of the jury.”

In his argument in this court the defendant goes beyond his post-trial motion. He now argues that the cause should be reversed because of the misconduct of the defendant himself and because the plaintiff was permitted to cross-examine the defendant under section 60 of the Civil Practice Act (c 110, § 60, Ill Rev Stats, 1965) regarding a prior statement made by the defendant without the statement ever having been offered or admitted in evidence.

Section 68.1 of chapter 110 of the Illinois Revised Statutes, 1965, provides in part,

. . the post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, ... A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.”

This rule is based upon the sound reason that a party should not be permitted to hide behind a general objection in the trial court and then criticize the trial judge on a specific point in the Appellate Court. We cannot review a trial decision unless a trial judge has had a chance to make that decision. It is unfair to permit us to sit in review of a trial judge unless he has had an opportunity to consider the same question presented to us. As was said in Perez v. Baltimore & O. R. Co., 24 Ill App2d 204, 164 NE2d 209 (1960) at page 210,

“A trial judge should have an opportunity to appraise the errors which are asserted to have taken place. It is unfair to charge him with errors in a reviewing court without having brought them to his attention so that a new trial could have been granted if he found it advisable.”

In Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 572, 149 NE2d 351 (1958), the court notes that the purpose of the Statute “. . . was to prevent the moving party from hiding behind a general objection in the trial court and for the first time raising with particularity in the Appellate Court an objection that had not been argued before the trial judge. Concealment and surprise should be no part of present day practice.” In the case of O’Keefe v. Lithocolor Press, Inc., 49 Ill App2d 123, 199 NE2d 60 (1964), the defendant objected in the trial court that a doctor was asked a hypothetical question about a hypothetical person. On appeal their objection was that the question invaded the province of the jury. The court held that this objection had not been presented in the post-trial motion and that the two objections were different. Since the objections were different it could not be reviewed on appeal.

Even if the two arguments now raised by the defendant had been properly preserved, they are without merit. A party can hardly rely on his own misconduct as a ground for reversal. Any rule which authorized a party to profit by his own misbehavior would bring chaos to our judicial system.

Prior to trial the defendant had given a written statement to plaintiff. On the trial of the case, defendant’s testimony contradicted his statement. Thereupon, the statement was produced. The defendant admitted that the signature on the last page of the statement was his. He testified that the signature on the first page of the statement looked like his and the signature on the second page of the statement did not look like his. The trial judge found that it was one whole statement with the defendant’s signature at the bottom of the last page. An examination of the record leads to the conclusion that the trial judge was correct in his findings regarding the statement. Therefore it was permissible for plaintiff to impeach the defendant with the prior inconsistent statement and it was not necessary that the statement be admitted. Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill 202, 36 NE 1036 (1893), Kooyumjian v. Stevens, 10 Ill App2d 378, 135 NE2d 146 (1956). Apparently when the defendant discovered that things were not going well, he changed his testimony and denied making the statement. Having once admitted making the statement a party may be impeached by the use of the statement and this may continue even though the party subsequently changes his position and denies making the statement. The admission opens the door to impeachment and a party will not be permitted to change his testimony because the results are not satisfying. Therefore we conclude that the defendant was properly impeached by his own written statements and that the trial court did not commit error in permitting examination without admitting the statement or without the statement having been offered.

We conclude that the jury verdict was not excessive and that no error occurred in the trial. The judgment is therefore affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    Lucille DeCicco, Plaintiff-Appellee, v. Thomas Reed, d/b/a Town & Country Newspaper Agency, Defendant-Appellant.
    Gen. No. 66-45.
    Second District.
    December 20, 1966.
    Diver, Diver, Ridge & Brydges, and F. James Lumber, of Waukegan, for appellant.
    Benjamin Sugar, of Chicago, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

On May 9, 1962, the plaintiff filed her original complaint against the defendant to recover for personal injuries arising out of an automobile accident. Summons was issued the same day and returned on May 23, 1962, showing service upon the defendant by serving another person “as agent.” On June 5,1962, the defendant filed a special and limited appearance with a motion to quash the summons. No action was taken by either party until September 28, 1965, at which time the plaintiff moved to set the special and limited appearance for hearing. The hearing was had on October 5, 1965, and the trial court granted the motion to quash service of summons and to dismiss the case for want of prosecution. No appeal was taken from that order.

On November 16, 1965, the instant complaint was filed alleging substantially the same cause of action as set forth in the earlier complaint. Summons was issued, returned and the defendant again filed a special and limited appearance contesting the jurisdiction of the trial court.

Supreme Court Rule 4(2) (c 110, § 101.4(2), Ill Rev Stats, (1965)), provides as follows:

“If the plaintiff fails to show reasonable diligence to obtain service, the action as a whole or as to any unserved defendant may be dismissed on the application of any defendant or on the court’s own motion.”

The trial court denied defendant’s second special and limited appearance and the defendant brings the case to this court raising the narrow issue — is the plaintiff barred from further action because she did not use diligence in obtaining proper service upon the defendant?

The defendant draws our attention to a number of cases which defendant urges us to accept as authority. In one of them, Daly v. City of Chicago, 295 Ill 276, 129 NE 139 (1920), the plaintiff secured the issuance of summons but failed to deliver the summons to the sheriff for more than four years. After that long time an alias summons was issued and served. The court granted a motion to quash the alias summons finding that the plaintiff had not been diligent in obtaining service. In the case at bar, summons was not only issued the same day of the filing of the case, but actually served within a comparatively short time thereafter, thereby apprising the defendant of the existence of the case. This is apparent because the defendant filed a special and limited appearance in the original case.

In Vukovich v. Custer, 415 Ill 290, 112 NE2d 712 (1953), there was some delay in obtaining service of summons but the court held that it did not show a lack of diligence nor was the defendant prejudiced. The court notes at page 293:

“. . . a technical and sterile application of the Civil Practice Act would contradict its command of a liberal construction and disregard its emphasis on the substantive rights of the parties.”

In Davis v. Anthony, 67 Ill App2d 226, 214 NE2d 603 (1966), the plaintiff made numerous attempts to locate the defendant and after a trial court order of dismissal, the Appellate Court reversed, holding that the plaintiff had indeed used diligence to find and serve the defendant.

In Kohlhaas v. Morse, 36 Ill App2d 158, 183 NE2d 16 (1962), the plaintiff filed an amended complaint and waited for more than one year to obtain an order authorizing the filing of the amended complaint and directing the issuance of summons. The court properly held that this was not a sign of diligence and that the amended complaint should be dismissed and the summons quashed.

It is true that in the case at bar there was a lapse of time between the filing of the first and second complaints. However, the delay did not cause any prejudice to the defendant because he was served with summons in the first case and fully advised about the existence of the lawsuit. This is not a case where the plaintiff fails to obtain service of summons and secretes the complaint in an effort to injure the defendant. In such a case it may well be proper to quash summons and dismiss the case, because in that instance prejudice to a defendant can exist. In our case no prejudice exists and the only question presented is whether or not the plaintiff’s failure to call up the motion in the first case promptly should exclude the plaintiff from the courts. While it may be that the burden of having the pending motion set for hearing was upon the plaintiff, still if the defendant found himself being prejudiced in any manner, he had the same right to have the matter set for hearing as did the plaintiff.

This court has often expressed the view that barring some serious error, controversies should be resolved on their merits after both sides have had their day in court. Hopefully no litigant should be barred from the courtroom because of some legal technicality.

In the recent case of Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358 (1965), we had occasion to consider the opening of a judgment by default. We adopted a quotation from another case in that opinion at page 295, as follows:

“We believe the overriding rule that should determine cases of this character, is whether or not justice is being done.”

We further noted at pages 297 and 298, that the guiding principle in cases of this kind is that of fundamental fairness, having in mind that litigation should be determined on the merits and only by default as a last resort.

The defendant urges that orders of default are unique and while we should treat defaults liberally, the same rule should not be applied to dismissals. A dismissal is similar to a default except that it applies to the plaintiff rather than the defendant. We see no logical basis for distinguishing between a dismissal or a default in the case at bar.

The defendant also urges that his constitutional rights are being violated, but the constitutional provisions he cites apply to all persons, be they plaintiff or defendant, and in this case the plaintiff has the very same constitutional rights as the defendant.

We, therefore, conclude that the trial judge did not abuse his discretion in denying defendant’s motion to dismiss.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    Frank Yuen, Plaintiff-Appellee, v. Board of Education of School District No. 46, Kane, Cook and DuPage Counties, Illinois; Ashley Arnold, et al., Constituting the Board of Education of School District No. U-46, Defendants-Appellants.
    Gen. No. 66-6.
    Second District.
    December 22, 1966.

      Carbary, Carbary & Chapski, of Elgin, for appellants.
    Eugene T. Devitt, of Chicago, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Plaintiff-appellee Frank Yuen was a tenured teacher with the defendant-appellant School District No. 46. His duties were teaching physical education in the various elementary schools of the school system. He was also vice-president of the Elgin Teachers Association.

Following a series of incidents upon complaints, the Board of Education on June 15, 1964, passed a resolution dismissing Frank Yuen from employment as a teacher as of November 2, 1964. A copy of the resolution and a bill of particulars were forwarded to Yuen by registered mail. Yuen thereupon requested a public hearing and a lengthy hearing was conducted by the Board of Education under the Teacher’s Tenure Act, c 122, § 24r-12, Ill Rev Stats (1963). At the conclusion of the hearing the Board of Education passed a resolution and order confirming Yuen’s dismissal.

Yuen filed a complaint for review under the Administrative Review Act in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. The Circuit Court reversed the Board of Education, reinstated Yuen as a teacher and entered judgment in his favor in the amount of $7,500. This appeal follows:

The certain charges of misconduct upon which the dismissal hearing was held were as follows:

1. On January 11, 1964, said teacher was assigned to coordinate the Seventh Grade basketball game at Larsen Junior High School and help the High School Referee when needed. However, he was in the MultiPurpose Room meeting with members of the E. T. A.
2. On May 11, 1964, said teacher failed to appear at a track meet, Abbott and Ellis Schools.
3. Said teacher used certain typewriting equipment in the Physical Education Department after being requested not to use the same.
4. On April 16, 1964, said teacher was absent from his duties despite his requests to the Superintendent of Schools and this Board and their denial of the same.
5. On April 25, 1963, said teacher embarrassed and humiliated Mrs. Edith Morgan, another teacher, by raising his voice against her in the presence of other teachers.
6. That on the afternoon of March 23, 1964, said teacher was absent from his duties at the Stream-wood Elementary School without properly notifying his superiors.

Yuen either denied or offered evidence for the purpose of excusing each of the charges. We feel it necessary to consider only one of these charges; that of his being absent from his duties on April 16, 1964, despite his requests to the Superintendent of Schools and the Board of Education and their denial of the same.

It appears that on March 16, 1964, Yuen submitted a request to his superior to be absent on April 16 and 17, 1964, so that he could attend the Illinois School Problems Commission hearing in DeKalb on April 16 and the National Department of Classroom Teachers meeting at Rockford on April 16 and 17. This request was denied because the meetings were not related to physical education and there was no substitute teacher in the system who could take over his duties for the day.

On April 10, he addressed a letter to the Superintendent and Board of Education again requesting absence to attend the School Problems Commission. On April 15, he was advised that his request was again denied. Notwithstanding this ruling Yuen left his work and attended the DeKalb Seminar.

The evidence showed that Yuen’s duties as physical education teacher took him to each school once every three weeks. As the result of his violation of the ruling of the Board of Education between 160 and 175 children were denied the benefit of his teaching that day. This misconduct on his part, regardless of any other violations with which he was charged, is sufficient to sustain the dismissal.

Under the Illinois School Code, c 122, § 10-22.4, Ill Rev Stats (1963), the School Board has the power:

“To dismiss a teacher for incompetency, cruelty, negligence, immorality or other sufficient cause and to dismiss any teacher, whenever, in its opinion, he is not qualified to teach, or whenever, in its opinion, the interests of the schools require it. . . .”

As stated in Meridith v. Board of Education of Community Unit School Dist. No. 7, Christian County, Ill., 7 Ill App2d 477, 130 NE2d 5 (1955), at page 486:

“The best interest of schools of the district is the guiding star of the Board of Education and for the courts to interfere with the exercise of the powers of the Board in that respect is unwarranted assumption of authority and can only be justified in cases where the board has acted maliciously, capriciously and arbitrarily.”

See also Scott v. Board of Education of Alton Community Unit School Dist. No. 11, 20 Ill App2d 292, 295, 156 NE2d 1 (1959); Pearson v. Board of Education, Community Unit School Dist. No. 5, Macoupin County, Ill., 12 Ill App2d 44, 49, 138 NE2d 326 (1956).

Yuen contends that the denial of his requests to be absent April 16, 1964, amounted only to a refusal to pay him for the time that he was to be absent from his duties and not to an order for his attendance on that day. This contention is not supported by the letter which he wrote to the Board requesting the absence, in which he stated nothing about “release time,” nor in the replies which he received, in which he was advised that the meetings did not pertain to physical education; that no substitute teacher was available and that the district was already being represented at the meeting. Yuen was hired and paid as a teacher. His activities with the Elgin Teachers Association should not be permitted to interfere with his teaching responsibilities. Yet, having expressly been denied his request for absence, he wilfully absented himself and neglected his teaching assignment for the day. This was in direct violation of the decision of the Board of Education regardless of whether or not he was paid for the day.

Yuen also contends there was no showing that his misconduct was not remedial and that he should have been given a warning notice prior to discharge. The finding of the Board of Education that the cause was not remediable involved an exercise of judgment and is not to be reversed by the courts unless the finding is manifestly against the weight of the evidence. Meridith v. Board of Education of Community Unit School Dist. No. 7, Christian County, Ill., supra, at p 295; Keyes v. Board of Education of Maroa Community Unit School Dist. No. 2, 20 Ill App2d 504, 514, 156 NE2d 763 (1959); Last v. Board of Education of Community Unit School Dist. #321, 37 Ill App2d 159, 164, 185 NE2d 282 (1962); Jepsen v. Community High School Dist. No. 307, 19 Ill App2d 204, 208, 153 NE2d 417 (1958). The Board of Education found that the loss to the students from Yuen’s absence and his intentional violation of a ruling of the Board were not remedial. Once the wilful violation occurred the damage was done and could not be remedied. This finding is not contrary to the manifest weight of the evidence.

Finally, Yuen attacks the procedures followed by the Board of Education during the dismissal hearing. Specifically, he charges as error his suspension pending the result of the dismissal hearing, undue restriction upon his attorney during cross-examination and the cross-examination of Yuen by the Board’s attorney. We have reviewed the procedure followed by the Board of Education in conducting the hearing and find that it complied with the statutory requirements. Under the Teacher’s Tenure Act the Board is the trier of the facts. The Board attorney may appear as an advocate at the hearing. He should not, and in this case did not, participate in the decision. The rulings on cross-examination by the two attorneys were not improper. Likewise, the suspension of the teacher during the pendency of the hearing is supported by statute.

In light of our ruling with respect to the misconduct on April 16, 1964, it is not necessary for us to consider the other charges against Yuen. The decision of the Circuit Court is reversed and remanded with instructions to affirm the decision of the Board of Education.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: TRAPP, J.

text:
    In the Matter of the Estate of John A. McWain, Deceased. Arthur Huddleston, Administrator of the Estate of John A. McWain, Deceased, Petitioner-Respondent-Appellee, v. Florence Hoggatt, Respondent-Claimant-Appellant.
    Gen. No. 10,754.
    Fourth District.
    December 22, 1966.

      Phelps, Russell & Boyle, of Carlinville (John W. Russell, of counsel), for appellant.
    Hebron & Denby, of Carlinville (W. W. Denby, of counsel), for appellee.
   TRAPP, J.

This is an appeal from a judgment of the Circuit Court of the Seventh Judicial Circuit, Macoupin County, Illinois, in probate, denying a claim for services of Florence Hoggatt against the estate of John A. McWain, and ordering the delivery of certain assets held by Florence Hoggatt to the administrator upon a citation pursuant to petition of the administrator.

The claim for services and the citation to discover and procure assets were heard together.

A review of the evidence is necessary.

The claimant, Florence Hoggatt, is a married woman, who, at all relevant times, lived with her husband in her own home. For about 10 years prior to the fall of 1960 she lived at Bethalto and the decedent, John A. McWain, lived at Carlinville, Illinois. Claimant was a second cousin of the decedent, and she, her husband and family of four children were always quite friendly with the decedent and referred to him as “Uncle John.”

During the ten-year period prior to 1960 the Hoggatts visited Mr. McWain at least twice a month, bought groceries and supplies for him and cared for him in other ways such as doing his laundry and taking him to the doctor. Mr. McWain had arthritis in his feet and had great difficulty in walking. On six occasions the Hoggatts took Mr. McWain on a vacation.

By October of 1960, Mr. McWain, who was then 82 years of age, was unable to take care of himself. The Hoggatts moved from Bethalto to Worden. At this time Mr. McWain requested Florence Hoggatt to get him a place to live and after his death it would be hers. He signed a blank check and Mrs. Hoggatt purchased a trailer for $1,133. She and her husband cleaned the trailer, moved it to their property immediately adjoining their home and connected it to the utilities.

From the time the trailer was located on the Hoggatt premises, and for fourteen months until he went to the hospital and later the nursing home, Florence Hoggatt took care of all of Mr. McWain’s needs including cleaning the trailer, doing his laundry, taking him to the doctor, purchasing his groceries, running his errands, taking him food and caring for him. He was unable to walk to the store.

The trailer was purchased in the name of John McWain, although he did not direct that it be purchased in his name. In December of 1961, Mr. McWain wrote a note to the post office at Carlinville directing the payment of $1,500 postal savings to Mrs. Hoggatt. On December 26, 1961, he wrote a note to the Carlinville National Bank as follows:

“Please give Mrs. Hoggatt the remainder of my checking account.
JOHN A. MCWAIN.”

There was then $915 in the checking account. He delivered $2,000 in government bonds to Mrs. Hoggatt for cashing. The check for the bonds did not arrive until after his death, and Mrs. Hoggatt delivered this check to the administrator.

Florence Hoggatt claims the trailer, the proceeds of the postal savings, the $915 balance of the checking account and $2,900 for services. All of her claims were denied by the trial court.

Since Mrs. Hoggatt took neither the title to, nor possession of the trailer, and since Mr. McWain occupied the trailer exclusively, it would appear that there was insufficient evidence of delivery of this property as a gift in the absence of any writing or corroborating testimony. In Northern Trust Co. v. Swartz, 309 Ill 586, 141 NE 433, the donee was in possession of the bonds, and a letter was written by the donor stating the bonds were to be held by the donee in fee simple.

The testimony of Mrs. Hoggatt with reference to the postal savings is inconclusive as to a gift. While she stated at one point that he told her to put the bonds in the bank in her name, and at another that he wanted her to have the money, she also stated:

“The postal savings were all in John McWain’s name. At the bank they wrote it in my name. We didn’t know they were going to, I asked them to put ‘For John McWain.’ I took it to the bank like he told me, and put it in his name and mine. I opened a joint account with Mr. John McWain the same day. We had to pay the nursing home bill. I paid his drug bill, and I paid the doctor that served him and came in to look at him. The drug and nursing home were paid out of the joint account; the doctor, I paid out of my own. After December 26 the amount in the joint account would have been $2,415.00. He did not direct me to pay these bills. He absolutely directed me to put this money in a joint account, also the bonds was to go in there.”

Betty Herrmann, Mrs. Hoggatt’s daughter, testified:

“He said, T want you to get all this cashed and put in the bank in your name and my name.’ My mother became quite upset. No one ever mentioned money before. My mother said, ‘Uncle John, do you know what you are doing, I would be able to write a check on your name.’ He said, ‘Absolutely, I want you to; you can write a check today.’ He became quite angry because she couldn’t believe he was doing this, because he was, I am sure, capable of doing whatever he wanted with his money, so he said. To me he said, ‘You tell her what I want done.’ So I explained to my mother he wanted a joint checking account”.

Mrs. Hoggatt testified subsequently:

“I am not telling the court that he didn’t tell me to pay bills out of his $915.00 I got from the National Bank by telling them in my own words these are for payment of bills; all he did was tell me he wanted me to cash them and put them in the bank in my name and his, even that day he said T want you to have this money’; my daughter said joint account but all I remember him saying, T want it in your name so you can write a check today if you wanted to.’ I put it into a joint account. I am not telling the court that he did not want his hospital and medical bills paid out of any cash monies that he might have had; he didn’t say that. He talked exactly like he knew he was going to die. He said, ‘the farm will sell for $2,000.00 and that would take care of the bills.’ He said, T want you to have this.’ ”

Again, in reference to the bank account, Florence Hoggatt testified:

“I told the cashier at the Carlinville National Bank when I obtained the $915.00 that I needed the money to pay bills. I told Uncle John they wouldn’t let me have the money. He said, ‘Tell them I want the bills paid,’ so I told them what he said.”

We think the foregoing is inconclusive as to gift of the postal savings account, and is also inconclusive as to the gift of the bank account. It is also inconclusive as to absolute transfer in payment for services.

Taken as a whole the record indicates an incompletely expressed intent to transfer money or property in payment for, or in appreciation, of services rendered. It can fairly be said that the deceased did not expect the services to be rendered for nothing. In addition to the claimant, Floyd Stevens, Sr., and Rev. Arvis R. Fields testified that Florence Hoggatt took care of all of Mr. McWain’s needs and that he depended on her entirely.

Our courts have had frequent occasion to consider claims for services against decedents’ estates. In Miller v. Miller, 16 Ill 296, the court held that an agreement to pay for services of a daughter living at home would be implied if the daughter was treated differently from other daughters and did the work of a servant. In Heffron v. Brown, 155 Ill 322, 40 NE 583, where a niece came to decedent’s home at his request and was housekeeper, nurse and washerwoman, the court held that a contract to pay the reasonable value of the services might be implied from the circumstances. In Switzer v. Kee, 146 Ill 577, on 581, 35 NE 160, the court said:

“In the case at bar, the mother did not reside in the family of her son, the defendant in error, but separate and apart from him, in her own home, and with sufficient means of her own to care for her and supply her wants. Owing to her helpless and critical condition it was deemed expedient and necessary to remove her to the home of defendant in error, in order that she might be properly cared for, which was done until her death, at great sacrifice on the part of her son and his family, and considerable expense. Had Mary Kee been living in the home of defendant in error as a member of his family a different question might have been presented, . . . and no implied contract have arisen from the mere providing of the support or furnishing the care or attendance upon her. . . .” (Emphasis supplied.)

In Neish v. Gannon, 198 Ill 219, 64 NE 1000, where a niece 15 years of age went to live with her aunt, at the aunt’s request, the family relation was held not to prevent the implication of a promise to pay for services requested. In In re Lyons’ Estate, 303 Ill App 642, 25 NE 2d 555, expressions of decedent that “he did not know how he could get along without his sister-in-law keeping house for him, and that he was ‘really going to take care of her later on,’ ” were considered sufficient to rebut the presumption that services performed by a relative were intended to be gratuitous. It was further held that a provision for the claimant in decedent’s will did not militate against her claim.

In re Estate of Brumshagen, 27 Ill App2d 14, on 22, 169 NE2d 112, the court cited the following rule which is observed by the Illinois courts:

“Where no kin or family relationship exists between the parties, and one accepts and retains the beneficial results of another’s services which were rendered at his own insistence and request and which he had no reason to suppose were gratuitous, the law will imply liability for such services in such an amount as they are reasonably worth. In such a situation a claim can be established by an implied contract. Floyd v. Smith’s Estate, supra. Where the plaintiff or claimant is of no kin to the deceased and is seeking to recover for services rendered by way of a claim filed against the estate, it is not necessary to prove the services were rendered under an express contract. Recovery may be had upon an implied contract. Moreen v. Carlson’s Estate, 365 Ill 482, 6 NE2d 871.”

In the last mentioned case it was held that the existence of a fiduciary relation did not bar recovery. A case in which the facts are similar to the situation at hand in which an implied contract to pay was found is Floyd v. Estate of Smith, 320 Ill App 171, 50 NE2d 254. See also In re Estate of Ruebush, 53 Ill App2d 54, 202 NE2d 344 on 348.

The cases of Newton v. Kunz, 37 Ill App2d 371 at 375, 185 NE2d 716 and Dewein v. Dewein, 30 Ill App2d 446, at 448, 174 NE2d 875, are distinguishable, among other reasons, upon the ground that there was no change of position of the claimant based upon the request for service.

In the present case John McWain had lived alone and had received substantial services from Florence Hoggatt, claimant. By reason of arthritis of the feet and his advanced age, he had become completely unable to take care of himself. About 14 months before his death he requested Florence Hoggatt to provide a place for him. She purchased the trailer for him, moved it on to her own property, next to her home and thereafter, constantly performed the services she had performed occasionally before. These services were necessary and they covered all of Mr. McWain’s needs. Florence Hoggatt received no corresponding benefit of being provided a place to live or board as is frequently the case where services are rendered by one relative to another. The evidence is clear that John McWain did not intend the services to go unrewarded. There is no evidence that the services were to be given gratuitously. The mere fact that there was no specific agreement as to the amount to be paid for the services, or the time of payment, would not prevent the implication of a promise to pay for necessary services requested and faithfully performed.

If Florence Hoggatt and John McWain were related as second cousins, such fact alone would not give rise to an inference that the services were to be performed gratuitously.

We think that from the time John McWain moved to the premises of Florence Hoggatt, 14 months before his death, and received care necessary for him to exist and until his death, a sufficiently definite set of circumstances existed to imply a contract to pay the reasonable value of those services. The services rendered prior to this time, while frequent, do not involve such a change of position on the part of claimant pursuant to any definite request for services as to give rise to such implication.

No reason appears why no evidence of the value of services was offered, but it is probable that the indication of the court that no sufficient foundation existed for the claim precluded the offer of such proof. An opportunity should be given to present such evidence.

The judgment of the trial court ordering the delivery of the trailer, the postal savings account and the bank account to the administrator is affirmed. The judgment of the trial court denying the claim for services performed subsequent to the time the decedent moved to the claimant’s premises is reversed and the cause remanded with directions to receive evidence as to the reasonable value of the services performed.

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

CRAVEN, P. J. and SMITH, J., concur.


author: CRAVEN, P. J.

text:
    The Board of Education of the City of Bloomington, County of McLean and State of Illinois, Being the Board of Education of Bloomington School District No. 87, County of McLean and State of Illinois, Plaintiff-Appellee, v. The County Board of School Trustees of McLean County, The Board of Education of Community Unit School District No. 5, McLean County, Illinois, Ray Page, Superintendent of Public Instruction of the State of Illinois, Harry C. Cade, et al., Defendants, The Board of Education of Community Unit School District No. 5, McLean County, Illinois, Defendant-Appellant.
    Gen. No. 10,779.
    Fourth District.
    December 22, 1966.

      Kenneth H. Lemmer, of Havana, and Simon L. Friedman, of Springfield, for appellant.
    Pratt, Heffernan & Ramseyer, of Bloomington (John T. Pratt and Robert E. Williams, of counsel), for appellee.
   CRAVEN, P. J.

A certain 39^-acre tract of ground was annexed to the city of Bloomington. The effect of that annexation was automatic annexation of the territory to Bloomington Special Charter District No. 87, appellee herein, unless within the time prescribed by statute, proceedings as outlined in ch 122, sec 7-2.1 (Ill Rev Stats 1963, c 122, par 7-2.1) are invoked.

In this case the requisite petition was filed within the time specified by statute, and pursuant to the petition the Superintendent of Public Instruction caused a hearing to be held. The statute provides that if either the County Board of School Trustees or the School Board decides that the annexation is not in the best interests of the schools of the area and the pupils therein, an order may be entered setting aside the annexation.

In this case the McLean County Board of School Trustees entered an order by a vote of 4 to 3 setting aside the annexation of the premises to Special Charter District No. 87. That order was appealed under the provisions of the Administrative Review Act to the circuit court of McLean County. There an order was entered reversing the order of the County Board of School Trustees, thereby making the annexation a reality. This appeal is from that judgment.

Community Unit School District No. 5, McLean County, Illinois, completely surrounds the city of Bloomington and Special Charter District No. 87. The geography of the two districts is such that any annexation of territory to District No. 87 would necessarily result in detachment from District No. 5. The tract here involved carried an assessed valuation of some $140,000. The record before us establishes that from the year 1959 to and including the annexation here involved in July of 1963, there have been some 30 incidents of annexation involving property with an assessed valuation, in the aggregate, at the date of annexation of some $2,784,000.

The parties to this proceeding agree that the decision of the County Board of Trustees must be measured by the statutory standard “that the public interest and the welfare of the districts and persons involved” shall govern. They further agree that the statutory standards for the guidance of the administrative agency must be met and must be established by the record. Community Unit School Dist. No. 6 v. County Board of School Trustees, 9 Ill App2d 116, 132 NE2d 584 (3d Dist 1956). If from that record it can be judicially determined that there has been no departure from the standards and the finding is supported by substantial, competent evidence, then there is to be no judicial interference with the determination. The Administrative Review Act makes the findings of the administrative agency on questions of fact deemed to be prima facie true and correct. (Ill Rev Stats 1963, c 110, par 274.)

This, then, is a contest between two school districts over the annexation of territory by one and detachment from another. The record before us establishes, and indeed each concedes, that the other operates an excellent educational program augmented by the modern-day emoluments necessary for a complete, well-rounded education. School District No. 5 contains approximately 200 square miles of territory in the rural areas surrounding the city of Bloomington but also including the town of Normal and the villages of Hudson and Towanda. School District No. 87 is geographically much smaller — some 9Y2 square miles — but includes all of the metropolitan area of the city of Bloomington. School District No. 5 has an enrollment of some 4,700 students compared to an enrollment of 6,700 for District No. 87. The assessed valuation of the two districts indicates approximately the same wealth per student in 1963. Both districts would offer free transportation to the students involved in the disputed tract, although for the junior high and high school program for Unit District No. 5 the students would necessarily be transported around or through the city of Bloomington to attendance centers in the town of Normal.

The record before us demonstrates that both districts have experienced an increase in the educational cost per student, but the record rather clearly demonstrates the prospects of decreasing assessed valuations for the territory comprising District No. 87 in the absence of annexation of peripheral territory. Only one property owner in the affected tract with children in school testified and he expressed a preference that his children remain in District No. 87. The record clearly establishes that residents of that tract are oriented socially, economically and culturally toward the city of Bloomington.

The circuit court determined that the order of the County Board of School Trustees was not supported by substantial evidence and further that the annexation of the involved premises to District No. 87 was for the best interests of the schools of the area and the educational welfare of the pupils. We agree with that judgment.

School districts, in order to perform their duty of providing adequate educational facilities, must be able to plan programs, budget on the basis of assessed valuations and anticipate some stability as to territory and enrollment within the district. The fact of this annexation clearly would not interfere with the performance of that duty in that the specific annexation would have little economical effect. It is equally clear, however, that continual annexation by District No. 87 of territory of Unit District No. 5 will at some point cross the line of the permissible and result in an interference and conflict with the best interests of the schools of the area and the educational welfare of the pupils in Unit No. 5. This record does not indicate that the point has yet been reached. In affirming the action of the circuit court of McLean County in this case we cannot be unmindful of the prior annexations. While they are relevant, they are not here determinative of the issue. Bloom Township High School Dist. No. 206 v. County Board of School Trustees, 59 Ill App2d 415, 207 NE2d 694 (1st Dist 1965); Horth v. Board of Education of School Dist. No. 205, 42 Ill App2d 65, 191 NE2d 601 (2d Dist 1963). But see McNary v. County Board of School Trustees, 64 Ill App2d 165, 211 NE2d 141 (3d Dist 1965).

The statutory standard for administrative determination of this matter is very broad. While we need not be unmindful of prior annexations, neither are we free to ignore the possibility of future annexation. We must be concerned with the welfare of the districts and the pupils. Neither convenience nor the wish of the residents can be determinative.

Economic reality must cause us to observe that this statutory framework can well permit of nibbling away at territory, taking more in the aggregate than would or could be permitted at any one time. The dilemma of prescribing legislatively the confinement of District No. 87 to its existing territory or permitting the piecemeal dissection of Unit No. 5 must be resolved in a legislative, not a judicial, forum. We are not envious of the task of resolving the conflict. The judgment of the circuit court of McLean County was in accord with the existing statutory standards and that judgment is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: SMITH, J.

text:
    Elwood J. Brandenburg, Plaintiff-Appellant, v. Weaver Manufacturing Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 10,774.
    Fourth District.
    December 22, 1966.
    Rehearing denied January 12, 1967.

      Horsley, Vespa & Lott, of Springfield, for appellant.
    W. J. Simhauser, of Springfield, for appellee.
   SMITH, J.

While using an automobile bumper jack to raise the front end of a Cadillac, plaintiff sustained serious injuries when the car slipped off the jack and fell on him. The trial court directed a verdict in favor of the defendant at the close of plaintiff’s evidence and entered judgment accordingly. Plaintiff’s thrust on this appeal is that the issue of defendant’s negligence and plaintiff’s due care are appropriately questions of fact for the jury.

The facts furnished little or no controversy. Plaintiff was a mechanic of 34 years’ experience in brake and front end alignment repairs. He had used the jack frequently during the preceding 6 or 7 months without incident. Safety stands were available to him but he testified they were in the way for doing a brake repair job. He said that he placed the jack in the usual manner and felt with his hands to see that the jack was safely secured on the bumper. He had worked some 15 minutes when the Jack flew out and let the car fall on him. He knew that it was an experimental jack and he had made some suggestions for its improvement unrelated to the manner in which the accident occurred. No part of the jack broke or malfunctioned. It simply slipped off the bumper. It was used by others to get the car off him. He testified that on no previous occasion had a car slipped off the pads while he was using the jack.

The jack was an experimental jack delivered to Firestone, plaintiff’s employer, for experimental use. From time to time representatives of the defendant would stop by and check on the condition and functioning of the jack. Several changes were made on it during the period of its experimental use. Its feature was that it was mounted on weight-bearing wheels so that it would roll as it lifted a car, thus enabling it to remain perpendicular and not tilt as a stationary jack would do. The lifting arms of the jack were horizontally mobile so that the steel lifting pads would adjust to varying widths under the bumper of a car. These pads had edges or lips bent up to prevent slipping off the bumper. After the accident, the pads were provided with rubberized seats and the length of the lips were lengthened.

The plaintiff’s complaint charged (a) delivery of the jack in a defective condition, (b) negligent manufacture so that it was not reasonably safe for its intended use, (c) negligent failure to test and inspect prior to delivery to plaintiff’s employer, and (d) negligently failed to instruct in the use of the jack. The bill of particulars makes it clear that plaintiff relies on negligent design. Defendant’s answer charged by way of affirmative defense that plaintiff’s injuries were sustained by reason of (a) his failure to use safety stands under the automobile and (b) his failure to properly place the jack and to see that it was safely installed. Motion to strike such defenses was denied.

Plaintiff relies heavily on Suvada v. White Motor Company, 32 Ill2d 612, 210 NE2d 182, where our Supreme Court extended the doctrine of strict tort liability to manufacturers of automotive parts. Plaintiff does not deny that under Suvada he must prove that his injury resulted from (a) a condition of the product, (b) that the condition was an unreasonably dangerous one, and (c) that the condition existed at the time it left the manufacturer’s control. The basic issue in this case is whether or not plaintiff’s injuries resulted from the condition of the product as designed or whether it resulted from a negligent use by the plaintiff for a purpose for which it was designed and made. This issue is squarely presented by the affirmative defense. In short, was it the condition of the jack which produced the injury or was it a careless and negligent use of it by the plaintiff or both which produced the injuries? Suvada is a landmark decision which effectively destroys lack of privity as a defense. It decides the sufficiency of a complaint. We do not read it as providing the open sesame to the strongbox of producers nor that it ipso facto embalms and lays to rest defenses based on the fault, misuse or misconduct of the plaintiff which contributed in whole or in part to his injuries. We do not believe that it hatched a philosophy of liability without fault in products liability cases nor permits one to recover for injuries which are properly traceable to and occasioned by his own fault. Plaintiff must still prove that it was the unreasonably dangerous condition of the product which proximately caused the injuries.

We are not unmindful of the decision in Wright v. Massey-Harris, Inc., 68 Ill App2d 70, 215 NE2d 465. Like Suvada, they considered only the sufficiency of the complaint. We concur in the conclusion there reached on that issue but not with all that is said in the opinion. We do not consider either Suvada or Massey-Harris as controlling on the precise issues which we consider. We are not called upon to determine whether the instrumentality is reasonably or unreasonably dangerous or to differentiate between them — if there is a proper differentiation.

Suvada makes it clear that the imposition of strict liability does not make Weaver an insurer as to the use of the product in the hands of subsequent users. The history of this jack makes it difficult to say that an unreasonably dangerous condition existed. Plaintiff himself testified: “When I would find a jack that would not fit under the car I wanted to work on I didn’t have to use that type of jack. We had other means of lifting cars at the garage.” In response to a question whether plaintiff had noticed anything that affected the safety of the jack, he said, “I think it was of making them arms longer, because I think we had talked about that.” This confirms the testimony of plaintiff’s witness Brammeier that he felt a bumper jack should not be used to contact a certain section of a Cadillac bumper for two reasons: “One is that it has a tendency to damage the bumper, and secondly, from a safety viewpoint the car will wiggle and will not stay stable on the two plates that the car sits on. I noticed this situation on several cars prior to Mr. Brandenburg’s accident. We discussed this in the shop. . . .” Plaintiff further said no car had slipped off the pads when previously used by him. In Day v. Barber-Colman Company, 10 Ill App2d 494, 511, 135 NE2d 231, 239, it is said:

“. . . Where a plaintiff is thoroughly familiar with a possible hazard involved in the performance of his job and with the means to avoid such, the fact that at a particular time he may have been momentarily unmindful thereof, forgetful thereof, or have overlooked the same does not absolve him from the duty of observing due care for his own safety: Munsen v. Illinois Northern Utilities Co. (1930) 258 Ill App 438. If a plaintiff has available to him two different methods or ways of doing a job, performing a task, or proceeding, — one previously tried and known to be safe, — the other either unknown and unexplored or known to involve certain possible hazards, — and he chooses the method or way which is unknown and unexplored or known to involve certain possible hazards, and is injured in the process, he is contributorily negligent as a matter of law: Geraghty v. Burr Oak Lanes Inc. (1954) 2 Ill App2d 48. . . .”

Plaintiff’s testimony considered in a light most favorable to him makes it clear that all jacks, including Weaver’s, do not fit all cars; that he knew this fact; that he knew it applied to Cadillacs, and that he knew the arms were too short. Under Day, it seems apparent that the trial court correctly found that his own lack of due care in dealing with a known condition was the proximate cause of the accident.

The action of the trial court in directing the verdict was proper as a matter of law and it is affirmed. The rules of law which govern when a verdict may be properly directed in a given case were thoroughly discussed by this court in Ferguson v. Lounsberry, 58 Ill App2d 456, 207 NE2d 309, and need not be repeated here.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.