author: GOLDENHERSH, P. J.

text:
    William F. Sherman, a Minor, by Robert Lee Sherman, His Father and Next Friend, and Robert Lee Sherman, Plaintiffs-Appellants, v. City of Springfield, Illinois, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 10, 749.
    Fourth District.
    December 6, 1966.
    Rehearing denied January 3, 1967.

      Londrigan & Londrigan, of Springfield (Joseph A. Londrigan, of counsel), and Robert Weiner, of Springfield, for appellants.
    Giffin, Winning, Lindner & Newkirk, of Springfield (Alfred F. Newkirk and Robert S. Cohen, of counsel), and I. J. Feuer, of Springfield, for appellee.
   GOLDENHERSH, P. J.

Plaintiffs appeal from the judgment of the Circuit Court of Sangamon County, entered upon a jury verdict finding in favor of defendant, in plaintiffs’ suit for personal injuries and medical expenses.

Plaintiff, William F. Sherman, a minor, sues to recover damages for personal injuries suffered on June 26, 1964, while swimming in Lake Springfield, a lake owned and maintained by defendant, City of Springfield. Plaintiff, Robert Lee Sherman, is William’s father, and sues to recover for medical expenses incurred by reason of William’s injuries.

Plaintiffs complain of numerous errors committed during the trial. The alleged errors, and the evidence adduced by the parties, will be reviewed and discussed to the extent necessary to this opinion.

The evidence shows that the defendant owns a lake known as Lake Springfield. There is a beach and swimming area which is open to the public between Memorial Day and Labor Day. A fee is charged for admission to the beach area. On the east bank of this part of the lake, there is a sanded beach, where the defendant has constructed a beach house. The swimming area is separated from the rest of the lake by a bulkhead made of sheet steel pilings, which lies to the west of the beach. There are lifeguard stations on the sand beach, on a platform on the bulkhead, and near a safety rope which extends north and south through the swimming area.

When the lake and beach area were completed in 1935, a pipe was installed through which water could be pumped into the swimming area. This was used for a dual purpose, to maintain a proper level of water, and to chlorinate the water.

In January and February of 1964, employees of defendant pumped the water out of the swimming area, removed the old pipe, and installed a new one. The new pipe extended from a pump and chemical treatment room located on the south side of the lake, northwardly, for a distance of approximately 338 feet, and was constructed of pipe ranging from 8 inches to 3 inches in diameter. The pipe lengths were connected by means of mechanical joints, using gaskets, but no washers. The reduction connections were made with reducers. The 8-inch pipe was at the southerly end of the beach and the smallest pipe was at the north end. There are approximately 150 one-half inch holes drilled into the pipe, spaced 16 to 18 inches apart. Lee Nickelson, Chief Utilities Engineer for defendant, testified that the holes are needed in order to distribute the water and chlorine into the swimming area. The water and chlorine are pumped through the pipe by means of an impeller pump designed to pump 1,400,000 gallons per day.

Plaintiffs’ complaint charged 9 acts of negligence, all but one of which were stricken by the court at the close of the plaintiffs’ case. The charge of negligence upon which the case was submitted to the jury was that defendant “carelessly and negligently failed to install said pipe at sufficient depth to be safe for swimmers using said beach.”

On June 26, 1964, plaintiff, William F. Sherman, then 17 years of age, was visiting his grandparents in Springfield. He and his brother, Robert, age 15, went to the beach, paid the admission fee, changed to swimming trunks, and entered the water. They walked out to a safety rope which extends in a northerly and southerly direction, in an area where the water is approximately 3 feet deep. They swam in deeper water, plaintiff dived off the diving tower one time, after which the boys returned to the beach, stayed there awhile, and then decided to run into the shallow water as far as they could. After doing this several times, they decided to run out and dive into the water. Plaintiff dove at a point where he estimates the water to be about 3 feet deep. When he dove, his arms were extended above his head, and his head was “straight with his body.” His head hit something hard and solid, and he suffered injuries resulting in his being almost completely paralyzed.

James McKee, defendant’s employee, called by plaintiffs under section 60 of the Civil Practice Act, testified that he was in charge of the job when the new pipe was installed. The old pipe was removed with a backhoe. At the south end of the beach the pipe was laid in a ditch 3 feet deep, and as it moved northwardly it was shallower, ranging as low as 12 to 14 inches. Despite the pumping there was some water in the area and they were “in the blind somewhat,” and were unable to tell the exact depth of the ditch. The bottom of the ditch in which the pipe was laid was clay and mud, with an “inch or two of rock and gravel,” and as they dug the ditch, the sides of the sand would fall into the ditch.

Anthony Stockus, superintendent of parks and recreation for the defendant, called under section 60, testified that after the pipe was laid, a crew of men working under his supervision, covered the pipe, tamped the gravel to a depth of 4 to 8 inches, and then placed 4 to 6 inches of sand over the gravel. The pump was turned up and the water came up through the sand and gravel like boiling water. He next checked the cover over the pipe in the middle of May. He made this check, barefoot and wearing swimming trunks, by walking the pipe from north to south, and found the pipe to be working properly. He made no check of the depth of the cover.

Plaintiffs’ first complaint of error arises out of a ruling of the court during the testimony of Carter Jenkins, called by plaintiffs as an expert witness. Mr. Jenkins testified that he is a consulting engineer, with many years of experience in the fields of hydraulics, municipal improvements, water systems and recreational facilities. He identified an exhibit described as a topographic map plotted from a survey, to show the beach area, the elevations of the earth surface, the pool level, beach house, diving platform, and various other objects. The survey was made between August 17 and 21, 1964, and on September 1, 1964, at all of which times the beach was in operation. On each of the days on which the survey party worked, the pipe appeared to be functioning, and the water level appeared to be normal. The pipe was located by means of probing rods, and Mr. Jenkins stated that the pipe lay between the beach and the safety rope. The pipe is situated approximately 50 to 75 feet from the water’s edge, the distance varying with the curve of the shoreline of the beach, and the %-inch safety rope is located approximately 15 feet west of the pipe. The water is approximately 3 feet deep, with minor variations, both where the pipe is laid, and the rope installed. Mr. Jenkins described the manner in which the survey was made, and identified another exhibit, described as a drawing, showing the types and sizes of the pipe and reducers used in the lake installation.

Plaintiffs’ counsel then asked this question: “Now Mr. Jenkins, I wish to ask you, from your observation of the particular installation, do you have an opinion based upon your experience as to whether this was a proper installation?” Defendant’s objection thereto on the ground that “they have not stated all of the elements which are involved in the evidence up to now, as to the installation,” was first overruled, and after argument of counsel, sustained. Plaintiffs then propounded a lengthy, detailed hypothetical question, concluding: “Now, Mr. Jenkins, do you have an opinion based on reasonable engineering principles and certainty as to whether the top of the chlorinating pipe installation or construction was at a sufficient depth below the surface of the lake bottom in this pool to prevent its movement or changes in the sand cover? Do you have an opinion?”

In reply, Mr. Jenkins stated that he had an opinion, and expressed the opinion as follows: “My opinion is that the cover is entirely insufficient over the top of the pipe and that the pipe, therefore, could move and that the cover could be moved, also.” In explanation of his answer, he stated that the facts hypothesized would result in movement of the pipe, movement of the sand on top of and on the side of the pipe, and the action of the water, through the holes in the pipe, would move the sand and gravel, causing removal of the fill over the top of the cast-iron pipe.

Plaintiffs contend that the court erred in refusing to permit the witness to express his opinion, based upon his personal knowledge and observation, and requiring that the opinion be given in response to a hypothetical question. Plaintiffs argue that the court’s ruling weakened the effect of the witness’ opinion, to plaintiffs’ prejudice. Defendant contends the court did not err, that in fact, plaintiffs’ case was strengthened thereby, since it presented plaintiffs’ counsel with an opportunity to repeat and emphasize the evidence favorable to them.

In Volume II, Wigmore on Evidence, (3rd edition), in sections 673 through 679, is found a discussion of the question here presented. The conclusion reached is that if an expert witness has knowledge based upon personal observation, no hypothetical presentation is necessary. In Louisville, N. A. & C. Ry. Co. v. Shires, 108 Ill 617, at page 630, the Supreme Court said: “A medical expert may examine the patient, and from such personal examination give his opinion to the jury. If the medical expert has not made a personal examination of the patient, then the proper practice is to put a question to the witness reciting the supposed facts hypothetically, upon which the opinion of the expert is wanted.” In Krueger v. Friel, 330 Ill App 557, at page 567, 71 NE2d 815, the Appellate Court for the First District said: “The answer sought was one not within the common knowledge of the layman. It was peculiarly within the knowledge of a person with special skill or training. The witness was familiar with the street car and testified from his personal knowledge. When an expert witness has personal knowledge or has personal observation and his opinion is sought, a hypothetical presentation is unnecessary, but he may be examined as an expert upon direct interrogation.”

It appears, therefore, that Illinois has followed the rule enunciated in Wigmore, and the trial court erred in not permitting the witness to testify as to his opinion based upon his personal observation.

The alleged failure to consider all of the elements “involved in the evidence” does not affect the admissibility of the expert witness’ opinion based on personal observation. Any evidence which it is contended was not considered, and the effect of its consideration upon the opinion expressed, are subjects for cross-examination.

Plaintiffs contend that the trial court improperly instructed the jury that certain testimony of Mr. Jenkins, Herbert R. Williams, Cindy Campbell, Abigail Clauter and Robert L. Sherman could not be considered as any evidence of the conditions and circumstances in existence on the date on which the minor plaintiff was injured.

Following the expression of his opinion, plaintiffs’ counsel inquired of the expert witness, Carter Jenkins, whether the survey which he prepared, in any manner modified or altered his opinion. The witness stated that the survey confirmed his opinion that there was a movement of the pipe, the sand fill, and the sand to the side of the pipe. He was then asked what he found when he made the survey. Defendant’s attorneys objected, and after considerable colloquy between counsel, and some discussion between counsel and the court, the court stated to the jury: “Ladies and gentlemen of the jury, I’m overruling this objection, and the evidence you’re about to receive you can take only in this limited sense: The testimony that you will receive at this point, I’m advising, you are not to consider as to what the condition was on June 26th, 1964, which was the day of the injury to the plaintiff, but may be received only by you in conjunction with the testimony of this witness. Do you follow me?

“In other words, you are limited on this. You can only consider this testimony in connection or in conjunction with this witness’s testimony, his line of testimony, but you are not to consider this testimony as to what the conditions on the beach were on June 26th, 1964.”

Mr. Jenkins then testified that on August 18, 1964, there was no cover over the flange of the 6-inch by 4-inch reducer, and on September 1, 1964, there were 5 inches of sand cover. He stated that in his opinion the change in cover was due to the movement of the pipe joints, and that there was movement of the sand due to the currents of the water in the swimming area. He fixed the location of the reducer as being 55 feet west of the water’s edge, 151/2 feet from the safety rope, and approximately 1.2 feet north of the south door of the beach house. He stated that on September 1, 1964, the pipe was exposed in two places, lying south of the point where the reducer is located.

Herbert R. Williams, called by plaintiffs, testified that he was chief of the survey party which made the survey under the direction of Carter Jenkins. On objection to Williams’ testimony on the grounds that it should be limited to and considered in conjunction with Jenkins’ testimony, the court instructed the jury as follows: “Ladies and gentlemen of the jury, this witness — Mr. Williams’ testimony is to be considered by you and is limited by court instruction to be considered by you in the light of the testimony of Mr. Carter Jenkins, and you are not to consider any of his testimony as a fact of anything that occurred or was present at the place in question on June 26th, 1964.”

Following this admonition to the jury, Williams testified to locating the reducer previously described by Jenkins, and stated that on August 18th the sand cover in this area was not more than one-eighth or one-quarter inch thick. At another point along the pipe he stepped into a very large hole, and there was an exposure of pipe at this point.

Cindy Campbell called by plaintiffs, testified about stepping on a pipe, and a “bigger pipe,” and fixed the time as the early part of July. The court instructed the jury as follows: “Ladies and gentlemen of the jury, you may consider this evidence with this limitation: That it can only be considered in light of the testimony given by Mr. Carter Jenkins. You may not consider it as any evidence as to what the condition was or the circumstances were at that time or at that place on June 26th, 1964. You may only consider it in the light of Mr. Jenkins’ testimony but not in evidence as to what the situation was on June 26th.”

During the testimony of Abigail Clauter as to feeling pipes on the bottom of the pool on June 30th or July 2nd, the court said to the jury: “Again, ladies and gentlemen of the jury, you may consider this evidence with the limitation only that it can be used in connection with the testimony that you have received today from Mr. Carter Jenkins. It is not to be used in any way as any evidence as to what the situation or condition of the beach was on June 26th, 1964.”

Robert Lee Sherman, Jr. testified that sometime after June 26, 1964, he returned to the beach with one of plaintiffs’ attorneys, took him to the approximate spot where his brother was injured and found a metal object under the sand that felt like a pipe. On objection by defendant, the court instructed the jury: “Ladies and gentlemen of the jury, again, this testimony that you are about to receive is admissible and to be considered by you only in that limited sense that can be taken in consideration with the testimony of Mr. Carter Jenkins and, again, cannot be considered by you as to any evidence as to what the conditions or circumstances of the beach park were on June 26th, 1964.”

Plaintiffs contend that the testimony showed changing conditions of cover over the pipe which tend to prove the allegation in the complaint that defendant “carelessly and negligently failed to install said pipe at sufficient depth to be safe for swimmers using said beach.” Defendant argues that the testimony constitutes evidence of post occurrence conditions and was therefore, inadmissible, and that it cannot be circumstantial evidence of defendant’s negligence as contended by plaintiffs, because circumstantial evidence will not support a theory of liability unless it is of such nature as to leave only one conclusion or inference to be drawn therefrom.

On the issues toward which the testimony above reviewed was directed, defendant adduced the testimony of two lifeguards who stated that the plaintiff, William F. Sherman, was injured at a point “between the shallow guard chair and the sliding board.” The guard chair is situated approximately 20 feet south of the point where the reducer is installed, and the slide is approximately 60 feet south of the guard chair.

Three witnesses testified that they had walked along the place where the pipe was buried, or had searched for exposed places by partly submerging and exploring the area with their hands, and did not find any exposed places. Defendant’s Chief Utilities Engineer testified that the pipe was laid at proper depth, and neither the pipe nor its cover had moved enough to expose it.

The evidence shows that there was no change made in the type or method of installation between the time of the occurrence and the time when the witnesses, both for plaintiffs, and defendant, examined the swimming area.

In People ex rel. Noren v. Dempsey, 10 Ill2d 288, 139 NE2d 780, at page 293, the Supreme Court said: “The basic principle that animates our law of evidence is that what is relevant is admissible. Exceptions to that principle must justify themselves.” Our courts of review have approved the admission of evidence of a condition subsequent to an occurrence, to show the condition of a road bed and track, Jacksonville Southeastern Ry. Co. v. Southworth, 135 Ill 250, 25 NE 1093, an automobile, Morgan v. Mixon Motor Co., 10 Ill App2d 323, 137 NE2d

504, Gass v. Carducci, 37 Ill App2d 181, 185 NE2d 285, and a sidewalk, City of Bloomington v. Osterle, 139 Ill 120, 28 NE 1068. Neither defendant’s evidence as to the method of installation, nor the testimony of the witnesses who failed to find any change precludes proof of a subsequent condition from which it could reasonably be inferred that there was a change in the condition of the cover over the pipe. In considering a situation wherein the weight of certain timbers was in issue, the District Court of the United States for the Southern District of Georgia, in Compania De Navegacion Transmar, S. A. v. Georgia Hardwood Lumber Co., 48 F Supp 402, at page 404, said: “The rule that a state once shown is presumed to continue is not without qualification and is not to be rigidly applied under all circumstances. Where likelihood of change is inherent in the thing itself, i. e., lumber or timbers, green or wet, exposed to the sun and air, whereby it dries and moisture evaporates, the inference of continuance does not arise. The more volatile the situation the less reliable is the presumption of the continuous state. Blocks of ice and blocks of granite weighing the same when the sun shines on them hot do not last equally as long.”

The tendency of sand to move and shift is “inherent in the thing itself.” The evidence shows that there are holes drilled in the pipe, water and chlorine are pumped through, resulting in sprays or jets, into the sand. This evidence, and the testimony of the witnesses concerning the exposure of portions of the pipe, were evidence from which the jury could have drawn the inference that the pipe was exposed at the time of plaintiff, William F. Sherman’s injury. In Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847, at page 134, the Supreme Court said: “. . . reasonable inferences may be drawn from established facts and all that can be reasonably required to establish controverted facts, whether the evidence be direct or circumstantial, is that the evidence creates a greater or less probability leading, on the whole, to a satisfactory conclusion.” To paraphrase the statement of the District Court in its opinion in Compañía De Navegación, sand and gravel, when exposed to sprays and jets of water, will not react in the same manner as concrete.

The testimony was properly before the jury for whatever probative value the jury attributed to it, including its drawing therefrom the inference that the pipe was exposed, that the exposure resulted from the negligence charged in plaintiffs’ complaint, and the negligence proximately caused plaintiff’s injuries. The court improperly limited the purpose for which the jury might consider the evidence, and in so doing, committed error.

Plaintiffs contend that the court erred in excluding their Exhibits “A” and 23. Carter Jenkins identified and described Exhibit “A” as a cast-iron reducer, 14 inches in length, to which were connected a pipe with an internal diameter of 6 inches, and a pipe with an internal diameter of 4 inches, with half-inch holes drilled in each length of pipe. He stated that the “coupling here is as nearly identical to the one we found out there to be possible to assemble.” The record shows that plaintiffs had issued a subpoena duces tecum directed to John H. Hunter, Commissioner of Public Property of the defendant, directing him to bring with him a portion of the chlorinating pipe described in the subpoena. Defendant moved to quash the subpoena on a number of grounds including “Defendant has heretofore answered Plaintiffs’ interrogatories and has named the manufacturer of said pipe and described the make and design of the pipe. Plaintiffs can, through the exercise of discovery and subpoena powers, procure a similar pipe from the manufacturer.” The court allowed defendant’s motion.

Plaintiffs offered the exhibit in evidence and defendant objected on the grounds that the coupling and pipe had already been described, and would serve only to prejudice the jury, and there had been no evidence to connect the pipe or coupling in the lake bottom with plaintiff’s injury.

Defendant argues that plaintiffs’ post-trial motion did not set forth the alleged error with sufficient specificity to preserve it for review in that they merely asserted in their motion that the court “erred in refusing to admit plaintiffs’ Exhibit A in evidence,” without stating specifically the grounds upon which they rely, as required by section 68.1(2) of the Civil Practice Act. We have examined the cases upon which defendant relies and find no authority to support defendant’s contention. In the cases cited, the post-trial motions contained the general allegation that the court erred in admitting or excluding evidence, without specifying which exhibit, or what testimony, the movant meant to include. Here plaintiffs specifically referred to the exhibit in question and the motion meets the requirements of section 68.1 (2).

Defendant argues that the exhibit in demonstrative evidence, and its admission or rejection is discretionary with the trial court, and in the absence of evidence that plaintiff struck his head upon any exposed pipe, the exhibit was wholly immaterial.

Plaintiffs’ Exhibit 23 is a drawing prepared by Carter Jenkins, and contains six diagrams. Three diagrams show the general physical appearance of the types of connections used in the chlorinating pipe, and three are cross-sectional views of the pipe, showing the manner in which bolts are inserted to pull the plain end of a length of pipe up against the flanged bell of the adjacent pipe, the lead and jute joints which the testimony shows were used in the installation to make the pipe watertight, and the type of joint used in the reducer, where the coupling is made of larger and smaller pipe. The diagrams are not to scale. There is a table which shows the sizes and dimensions indicated so that the cross-sectional views would apply to the several sizes of pipe used, ranging from 8 inches to 3 inches in diameter.

In 20 American Jurisprudence at page 600, it is stated that: “It is always proper, when a fact in issue may be explained by the production of an article or object to which testimony relates, to bring such article or object into court and exhibit it to the jury; it may be said, in fact, that this should be done if the circumstances permit. Things may be exhibited to jurors in order that they may obtain clearer views and be able to reach sounder conclusions. This course is viewed as more effective than a description by the witnesses.”

In III Wigmore (3rd ed), Professor Wigmore said, at page 173: “It would be folly to deny ourselves on the witness-stand those effective media of communication commonly employed at other times as a superior substitute for words.” In Springer v. City of Chicago, 135 Ill 552 at page 561, 26 NE 514, the Supreme Court said: “It is a common practice in the trial of causes in the circuit court, to permit parties to produce things before the jury for their inspection, and that practice has been approved. Thus, in Tudor Iron Works v. Weber, 129 Ill 535, which was an action to recover for a personal injury, we held that the torn clothing which plaintiff was wearing when injured might properly be shown to the jury. In American Express Co. v. Spellman, 90 Ill 455, an action against a carrier for the loss of a can of yeast, it was held to be proper to allow plaintiff to put in evidence a can similar to the one in which the yeast was shipped, for the examination of the jury.”

Under the above cited authorities there is no question that the pipe and reducer installed in the swimming area, if relevant, would be admissible. Plaintiffs could not produce the pipe and reducer because the trial court quashed the subpoena duces tecum by means of which plaintiffs attempted to procure it for evidence. Defendant does not question the accuracy of the exhibit, and under the circumstances, the admissibility of this exhibit is governed by the same rules as would apply to the reducer and pipe actually installed in the lake bottom. Contrary to defendant’s contention, it was not necessary that plaintiffs prove that plaintiff actually struck the pipe to make the, exhibit relevant; it was relevant as evidence of the conditions that existed. As to defendant’s contention that the exhibit might prejudice the jury, since the exhibit is clearly illustrative of something which it was necessary for the jury to understand, and relevant to the issue of defendant’s alleged negligence, the fact that it might be awesome, or gruesome, does not render it inadmissible. Smith v. Ohio Oil Co., 10 Ill App 2d 67, 134 NE2d 526. We hold, therefore, that the trial court erred in excluding plaintiffs’ Exhibit “A.”

The exclusion of the drawing (plaintiffs’ Exhibit 23) presents a different situation. In 9 ALR2d at page 1044, is found an excellent annotation on the admissibility of drawings and diagrams. The majority rule, and the rule in Illinois, governing the admissibility of demonstrative evidence (in that case, a skeleton), is well stated in Smith v. Ohio Oil Co., 10 Ill App2d 67, 134 NE2d 526, in which opinion, at page 77, the Appellate Court said: “This court holds that the determination of relevancy and explanatory value of demonstrative evidence is primarily within the discretion of the trial court, but, to curtail abuses, is subject to review as to the actual use made of the object.”

There is testimony in the record which describes what the drawing was intended to demonstrate. Although the exhibit might have been of value in explaining to the jury how the lengths of pipe were connected, and how the reducer couplings were made, and there is no question that the evidence is relevant, we hold that either its admission or exclusion, in view of the evidence of record, would be held to be within the discretion of the trial court. In this instance, we hold that its exclusion was not such abuse of discretion as to be error.

Plaintiffs assert that the trial court erred in permitting Hugh O’Brien, Chief Utilities Accountant for the City Water, Light and Power Department of the defendant, to testify that the beach and swimming facilities were operated at a loss.

The record shows that the testimony was admitted without objection. Plaintiffs’ motion to strike all of the testimony of this witness was properly denied because some of his testimony was admissible, and as said by the Appellate Court for the First District, in Balfour v. Dohrn Transfer Co., 328 Ill App 163, 65 NE2d 624, at page 167, “The trial court could not be expected to sort the evidence, striking those items that were objectionable.”

Because we reverse the judgment here, and remand the cause for a new trial, we point out that the testimony was irrelevant, and its admission, if the point were properly preserved, would be held to be error.

Plaintiffs next contend that the court erred in permitting Lee Nickelson, Chief Utilities Engineer for the defendant, to express an opinion with reference to the pipe installed in the beach area. Nickelson was called by plaintiffs for examination under section 60 of the Civil Practice Act. He testified that James McKee, and the crew who worked under McKee’s direction, were employed under the witness’ jurisdiction as Chief Utilities Engineer. He stated that no plans or specifications were drawn for the installation of the chlorination pipe, that McKee was responsible for the laying of the pipe, that he had never seen it, and had not at any time gone out to look at the job.

He was called by defendant in its case, and testified that there were no plans or specifications for the job because it was considered to be a maintenance job, a repair of an existing pipe, and not a new installation. He was asked whether he had reason to believe that the chlorinating pipe would have had reason to change its position, and answered that in his opinion, the pipe has not moved. Plaintiffs’ counsel objected to the question and answer, the objection was overruled as “not timely,” and the witness stated that in his opinion “this pipe has not moved since it was installed.”

We have previously discussed the rule enunciated in Wigmore, and followed in a number of Illinois cases, that where an expert is possessed of knowledge based on personal observation, no hypothetical presentation is necessary, that where personal observation is lacking, a hypothetical presentation must be used, and an expert may base his opinion on personal observation, a hypothetical presentation, or a combination of both.

In this situation the witness, admittedly, had no knowledge based on personal observation, and he should not have been permitted, without a hypothetical question, to express the opinion that the pipe had not moved. Because plaintiffs failed to move to strike the question and answer subsequent to the overruling of their objection, we would not ordinarily consider this charge of error. However, since the case is remanded for a new trial, we point out the rules applicable to the expression of expert opinions.

Mr. Nickelson was also permitted to state that in his opinion, the freezing and thawing of the chlorination pipe would have no effect upon it. It is obvious from the testimony, and the questions by which it was elicited, that his opinion that the pipe would not be affected by freezing, was based on the fact that the pipe, because of the holes bored in it, would not retain water, and thus would not suffer the damage ordinarily resulting when water freezes in a cast-iron pipe. Under the state of this record this was not an opinion based on expertise, and was an irrelevant, innocuous statement of a fact that since the pipe could not retain water, it would not be damaged by freezing.

Defendant argues that the testimony of this witness with respect to the effect upon the pipe of its freezing and thawing, was relevant, and was made admissible by reason of the fact that Carter Jenkins testified that freezing and thawing would cause movement of the pipe. This assertion is not borne out by the record. Mr. Jenkins, in explanation of his answer to the hypothetical question, said: “The pipe that was theoretically laid was placed during the cold weather. It was subject to — immediately upon construction — to all the forces that nature can bring to bear on it including the heaving of the frost, the action of storms that occurred during that winter season, the later inundation of the area by water, the action of the waves over the top of the fill over the pipe which would cause it to move either in or out of longitudinally, the action of the bathing feet in the vicinity of the chlorinating or feed line pipe and the contraction and expansion that would be created in the pipe itself by changes in temperatures. All of that would cause movement of the pipe.”

We next consider plaintiffs’ contentions with respect to certain instructions for defendant. Over plaintiffs’ objections, the court gave the following instructions:

DEFENDANT’S INSTRUCTION NO. 11
“The fact that you have received instructions as to the measure of damages in this case, or that counsel in their arguments have discussed the question of damages, raises no presumption that you should assess any damages against the defendant, but before any damages can rightfully be assessed against the defendant, the burden is upon the plaintiff to prove his right to damages from the defendant by the preponderance or greater weight of all the evidence in this case.”
DEFENDANT’S INSTRUCTION NO. 12
“There is no presumption of negligence against the defendant from the fact in and of itself that the plaintiff may have received some injury or damage while on the premises of the defendant.”
DEFENDANT’S INSTRUCTION NO. 13
“If you find and believe from the evidence that the defendant was negligent, but you also find and believe from the evidence that the plaintiff was likewise negligent, and that the negligence of both the plaintiff and the defendant contributed to the injuries of the plaintiff, then and under those circumstances the plaintiff cannot recover.”
Supreme Court Rule 25-1 provides, in part,
“Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law.”

IPI instruction 21.07 clearly, concisely, and adequately, covers the subject matter of defendant’s instruction No. 11. If defendant desired an instruction on this matter, the instruction should have been tendered in the form set out in IPI.

Instructions were given in the form of IPI 20.01 and 21.02. These instructions adequately cover the subjeet matter of defendant’s instructions No. 12 and 13, and these instructions should not have been given.

We do not disagree with defendant’s contention that IPI does not cover all situations, and there are instances when an instruction not therein contained should be given. This contingency is provided for in Rule 25-1 which provides:

“Whenever IPI does not contain an instruction on the subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial and free from argument.”

We do not discuss the cases cited by defendant in support of its argument that the giving of these instructions is not error, other than to point out that all of them were decided prior to the adoption of Supreme Court Rule 25-1.

In the course of instructing the jury, while reading defendant’s instruction No. 1, given in the form of IPI 1.01, the court, between 1.01(7) and 1.01(8), interpolated the following oral instruction: “I will call your attention to the fact that on two or three days of this trial at the various situations, ladies and gentlemen of the jury, I admitted certain evidence but to be considered only in conjunction with the testimony of one witness and not to be considered as any evidence as to what the situation was on the date in question, June 26th, 1964. And, again, I would refresh you on the admonishment that the Court gave you at that time.”

The problems which arise with respect to the admission of evidence, admissible for one purpose, but inadmissible in some other capacity, are discussed in "Volume I, Wigmore on Evidence (3rd edition) at page 300. When such limitation is necessary, the jury should be so advised, simply and concisely, without repetition or argument. Such admonition, coupled with an instruction in the form of IPI 1.01 (7): “Whenever evidence was received for a limited purpose, . . . you should not consider it for any other purpose . . .”, is adequate. Anything more might well tend to confuse the jury as to the proper consideration of the evidence, or influence it to disregard it in its entirety. As to the impropriety of the oral interpolation while instructing the jury, under the provisions of section 67 (1) of the Civil Practice Act, the court in so doing, committed error.

Plaintiffs complain of a number of errors allegedly induced by conduct of defense counsel. We do not discuss these for the reason that, for the most part, they arise out of strenuous, and on occasion, heated, disputes on the admissibility of evidence, and are not likely to recur in another trial.

With regard to plaintiffs’ contentions with regard to the trial court’s rulings on certain discovery procedures, we consider the opinion recently handed down in Monier v. Chamberlain (Supreme Court No. 39799), and the cases therein discussed, sufficient guidance for the trial court to correct any alleged errors, and avoid new ones.

We have examined the allegations of negligence which were stricken by the trial court at the close of plaintiffs’ case, and although we do not deem it necessary to discuss them individually, we are of the opinion that the evidence adduced by plaintiffs made a prima facie case with respect to several of them. In the event of retrial, plaintiffs’ complaint is to be considered as containing the charges of negligence alleged therein, and is not to be treated as containing the single allegation of negligence which was not stricken by the trial court.

For the reasons herein set forth, the judgment of the Circuit Court of Sangamon County is reversed, and the cause is remanded for a new trial.

Judgment reversed and cause remanded for new trial.

EBERSPACHER and MORAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Helen P. Poindexter, Plaintiff-Appellee, v. Norman Willis, Defendant-Appellant.
    Gen. No. 66-87. (Abstract of Decision.)
    Fifth District.
    November 23, 1966.
    Armbruster & Diaz, of Alton (Ross Armbruster, of counsel), for appellant; Green and Hoagland, of Alton (James K. Almeter, of counsel), for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


text:
    The Aetna Casualty and Surety Company, a Corporation, Plaintiff-Appellee, v. Roy W. Brunsmann, Defendant-Appellant.
    Gen. No. 66-77.
    Fifth District.
    December 2, 1966.

      Sam S. Pessin, of Belleville, for appellant.
    Ray Freeark, Jr., of Belleville, for appellee.
   GOLDENHERSH, P. J.

Defendant, Roy W. Brunsmann, appeals from the judgment of the Circuit Court of St. Clair County, entered in favor of plaintiff, The Aetna Casualty and Surety Company, upon allowance of a motion for summary judgment.

On April 20, 1965, plaintiff filed a “Complaint to Revive Judgment,” and alleged therein that on December 14, 1939, a judgment was entered in the Circuit Court of St. Clair County in favor of plaintiff, and against defendant, in the amount of $12,779.72 and costs; that on June 9, 1948, a judgment of revivor was entered reviving said judgment; that on February 3, 1956, a judgment of revivor was entered; that the judgment is in full force and effect and has not been reversed, vacated or satisfied.

Defendant answered, raising as a defense, the statute of limitations, plaintiff moved for summary judgment, the circuit court allowed the motion for summary judgment, entered judgment of revivor and for costs, and ordered execution to issue. This appeal followed.

Defendant contends that the provisions of chapter 83, section 24b, Ill Rev Stats 1965, bar an action to revive the judgment after 20 years from the date of its entry, and the intervening judgments of revivor did not serve to toll the running of the statute.

Plaintiff contends that the intervening revivors tolled the statute, and the action was timely filed.

Section 24b (supra) provides that a judgment may be revived by scire facias “. . . or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, . . .” and provides that the action shall be commenced “within 20 years next after the date of such judgment and not after; . . .”

Section 55 of the Civil Practice Act (c 110, § 55, Ill Rev Stats 1965) provides: “Any relief which heretofore might have been obtained by scire facias may be had by employing an ordinary civil action.”

The issue here presented is well stated in Freeman on Judgments (5th Ed) wherein in Volume 2 at page 2249, is found the following statement: “Whether in the case of a judgment which has been revived the statute runs from the date of the original judgment or that of revivor depends upon whether the judgment or order of revival is regarded as a new cause of action.”

In Smith v. Carlson, 8 Ill2d 74, 132 NE2d 513, the Supreme Court stated that a scire facias proceeding and the civil action provided in lieu thereof are concurrent and identical remedies.

The Illinois rule appears to be in accord with the majority rule in the United States, as expressed by the Supreme Court of the United States in Owens v. McCloskey, 161 US 642,16 S Ct 693, at page 694: “Ordinarily, the writ of scire facias to revive a judgment is a judicial writ, to continue the effect of, and have execution of, the former judgment, although in all cases it is in the nature of an action, as defendant may plead any matter in bar of execution, as, for instance, a denial of the existence of the record or a subsequent satisfaction or discharge. Fost Scire Facias, 13, and cases cited; Tidd, Prac 1090; 2 Sell Prac 275.

“Conformably to the exigency of the writ, the judgment on sci. fa., the proceeding being regarded as a eontinuation of the original action, usually is that plaintiff have execution of the judgment mentioned in the writ with costs.”

In Smith v. Stevens, 133 Ill 183, 24 NE 511, at page 191, the Supreme Court said: “The proceeding by scire facias to revive a judgment is not an original suit, but is merely a continuation of the suit in which the judgment was rendered.”

In Bank of Eau Claire v. Reed, 232 Ill 238, 83 NE 820, at page 241, the Supreme Court said: “The judgment under a scire facias to revive a judgment is not quod recuperet for the amount due, but its object is to revive the judgment just as it formerly existed and to reinvest it with the same attributes and conditions which originally belonged to it. The material part of the judgment is that the plaintiff have execution of the judgment described in the writ, . . .”

It appears from the authorities that a judgment of revivor is not a new judgment, but serves merely to restore to the existing judgment the vitality necessary to permit execution in accordance with chapter 77, section 6, Ill Rev Stats 1965, which provides, in part: “No execution shall issue upon any judgment after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by scire facias or by other proceeding provided by law; . . .”

The only case cited by counsel, which involves the specific issue here presented, and a statute similar to that here in force and effect, is Mobile Drug Co. v. McCullough, 215 Ala 382, 112 So 238. The Supreme Court of Alabama held that the statute runs from the date of the rendition of the judgment, and not from the date of subsequent revivor.

Plaintiff argues that the holdings in Bank of Eau Claire v. Reed, (supra) and Motel v. Andracki, 299 Ill App 166, 19 NE2d 832, to the effect that the judgment, when revived, is invested with the same attributes as when it was originally entered, serve to start the running of the period of limitation from the date of revival. Plaintiff also cites the holding in Smith v. Carlson (supra) that the judgment of revivor may be entered after the expiration of the 20-year period, provided the affidavit for scire facias or the complaint for revivor is filed prior to the expiration of the period. We do not consider these cases to be authority for the proposition that a new 20-year period of limitation commences to run upon entry of judgment of revivor. In our opinion, the statutory provision that the action for revivor, whether by scire facias or civil action in lieu thereof, be “. . . brought thereon within 20 years next after the date of such judgment, and not after; . . .” is clearly intended to limit the time for commencement of such action to 20 years from the date of the original judgment, and the statute is not tolled by entry of judgment of revivor.

For the reasons herein expressed, the judgment of the Circuit Court of St. Clair County is reversed, and the cause remanded with directions to vacate and set aside the order allowing plaintiff’s motion for summary judgment, and expunge the judgment of revivor entered on March 25,1966.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Buck Buster, Defendant, and James D. Reynolds, Respondent-Appellant.
    Gen. No. 65-1.
    Third District.
    December 7, 1966.

      ABRAHAMSON, J., dissenting.
    James D. Reynolds, pro se, of Peoria, appellant.
    Channing L. Pratt, State’s Attorney, of Monmouth, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The respondent, James D. Reynolds, was cited to appear and show cause why he should not be held in contempt of the Circuit Court of Warren County for his failure to appear as the attorney of record at two trial settings of the case entitled The People of the State of Illinois v. Buck Buster. An answer was filed to the citation by the respondent, and after a full hearing the court entered an order finding him guilty of criminal contempt and imposing a fine against him in the sum of $50. Respondent appealed from this order to the Third District Appellate Court, which transferred the case to this court for opinion.

The facts are not without some dispute, but there was evidence before the court — including the testimony of the judge who ordered the issuance of the citation, the State’s Attorney who prosecuted the criminal case, the respondent and his secretary — sufficient for the court to find the following: That on May 17, 1963, an Information was filed charging Buck Buster, herein called the defendant, with driving a motor vehicle while under the influence of intoxicating liquor; that the defendant was arraigned on June 27, 1963, entered a plea of not guilty and demanded a jury trial; that the defendant, at the time, advised the court that he was represented by the respondent; that the court noted this on the docket as a courtesy; that the respondent, however, was not in court; and that prior to this, on May 20, 1963, he had written to the State’s Attorney advising him that he represented Buck Buster.

Thereafter, respondent had several conversations with the State’s Attorney regarding the possibility of reducing the charge against his client. On October 18, 1963, the cause was set for trial on November 12. Notice of trial date was given to respondent by mailing to him a copy of the trial calendar, on which he was shown as attorney for defendant. On November 4, 1963, the State’s Attorney and the respondent had a telephone conversation in which the former told the latter that the case would probably come up for trial the week following the 12th of November and that he would let the respondent know the exact date.

On November 6, 1963, the respondent wrote a letter to the State’s Attorney in which he confirmed the telephone conversation and advised that he would be ready for trial upon reasonable notice. He further asked to be advised of the status of the calendar as soon as possible, and stated that he had tentatively marked such trial date on his own calendar for November 19 at 10:00 a. m.

On November 8 and 11, the State’s Attorney again talked to the respondent’s office, the last call being at the request of the judge, to advise the respondent that the matter was definitely set for November 19. However, on November 18, the matter was taken off the jury calendar and continued until the next jury setting.

During this period of time, three continuances were shown on the docket sheet, all as having been granted on the motion of the defendant. It is undisputed, however, that the respondent at no time personally appeared before the court and did not file any written pleadings seeking a continuance. The judge testified that on one occasion he received a telephone call from the respondent’s office advising the court that the respondent could not be in court on a certain date; and that on at least one of the other continuances, the State’s Attorney advised the court that the respondent could not be in court at the time the matter was set.

The case was then set as the first case on May 4, 1964, and notice thereof was sent to respondent by the court on April 17, 1964. In the interim, the State’s Attorney and the respondent had discussions regarding the amount of the possible fine if the defendant were to plead guilty. The respondent testified that on April 30, 1964, he agreed with the State’s Attorney that the defendant would plead guilty to the charge if the State would recommend a maximum fine of $300 with payment to be made within 120 days.

On May 4, the day set for trial, the defendant ostensibly appeared to plead guilty to the charge. The respondent was not with him. In the meantime, the State’s Attorney had received a record of the defendant’s past offenses. In view of this record, the State’s Attorney was of the opinion that the court would probably levy a fine in excess of $300 — which was more or less customary for a first drunken driving offense — and he so advised the defendant and telephoned the respondent at the same time. The respondent then talked to the defendant, the State’s Attorney and the judge on the telephone. In this conversation the judge refused to make any commitment relative to a maximum fine. As a result, the defendant did not plead guilty; and the judge advised the respondent that the State’s Attorney would contact him later that day regarding a definite trial date in the immediate future. In this telephone conversation, the respondent asked the defendant to come over to his office immediately to prepare for the trial and pay the necessary trial fee.

Late in the afternoon on May 4, the State’s Attorney called the respondent indicating that the case might be tried on May 6. On May 5, the State’s Attorney again called the respondent’s office at 10:00 a. m., and advised the respondent’s secretary that the case would go to trial at 10:00 a. m. sharp, the following morning. This call was made at the request of the judge.

Twenty-eight jurors reported on May 6 and the State was ready to proceed at 10:00 a. m. Neither the respondent nor the defendant appeared at this time. However, the defendant appeared — alone — at 11:00 a. m. In the meantime, the State’s Attorney had called the respondent’s office and was told by his secretary that the defendant had not been able to produce the necessary trial fee and that the defendant would be in court alone. Thereafter, the court ordered the citation to issue for the respondent to show cause why he should not be held in contempt for his failure to appear at the May 4 and May 6 jury trial settings.

This proceeding does not question the propriety of the respondent’s representation of his client insofar as the attorney-client relationship is concerned. The respondent first sought to have the charge against the defendant reduced and he devoted substantial efforts toward this end. He then sought assurance of the State’s Attorney and the court that the fine to be imposed would be no greater than $300. Again, he was unsuccessful — but through no lack of endeavor on his part. When it became apparent that all of his exertions were to no avail and that trial could no longer be delayed or avoided, the respondent made preparations on behalf of his client to be ready for trial. It is conceded by all parties that the respondent did not appear before the court because his client did not advance the trial fee.

The issue before this court concerns the relationship of the respondent to the court before which the defendant’s case was pending — the relationship of the respondent to the court, as an attorney and as an officer of the court. The respondent contends that since he did not file any written appearance or any written pleading in the case, he was not the attorney of record and was not obliged to appear before the court at the time the matter was set for trial.

Under the factual circumstance outlined above, we deem it immaterial that the respondent filed no written entry of appearance or written pleading. His course of conduct for a period of approximately one year is totally inconsistent with his present assertion that he was not representing his client before the court. The respondent, without reservation, advised the State’s Attorney that he represented the defendant in the case in question. Thereafter, the defendant stated in open court that the respondent was his attorney. The respondent was from a city other than where the arraignment took place, and the court, as a matter of courtesy, entered respondent’s appearance of record. As we view the matter, such act of courtesy in itself imposed no duty on the respondent to appear before the court or to answer its commands or directives with respect to this case.

Subsequently, however, the court gave notice to the respondent of the trial setting of this case in the fall of 1963. The notice indicated that the respondent was the attorney of record for the defendant in the case pending before the court. The respondent made no objection to this representation, but rather adopted a course of conduct which reaffirmed to the court that he was the attorney for the defendant. After receiving the notice of trial, the respondent did not deny his representation of the defendant, but rather indicated that he would be ready for trial on reasonable notice; and that he could not attend the trial on a certain date. The court was advised by someone from respondent’s office that he could not attend the trial on another date.

Again in the spring of 1964, notice of trial was sent to the respondent by the court indicating that he was the attorney for the defendant in this case. Again, the respondent did nothing to disclaim such representation, and he continued to represent the defendant in his negotiations with the State’s Attorney. When he failed to appear before the court on May 4 — at a time when the matter was set for trial — he talked to the court, the State’s Attorney and the defendant, and in these conversations the respondent again represented to the court that he was the attorney for the defendant. He sought from the court information as to whether a specific fine could be expected, and when the court refused to give an assurance that the fine would not exceed $300, the respondent told the court he would prepare for trial and asked that the defendant be sent to his office to make financial arrangements.

Such conduct by the respondent was consistent only with complete representation of his client in the matter pending before the court. It appears to us that the court did many things as a matter of convenience and courtesy to the respondent. Absent these, the respondent might have had to file a written appearance or written pleadings in this case. The mere fact that such courtesies were extended to the respondent did not lessen his responsibilities or the duties imposed upon him by reason of his representation of the defendant. The course of conduct adopted by the respondent may be equated to his filing an appearance on behalf of the defendant.

One of the primary duties of an attorney is that owed to the court. He is an officer of the court and owes to the court a duty to be obedient to its rules and orders. When engaged in litigation, he owes a duty to the court to appear before it upon notice and to assist the court in the expeditious consideration and disposal of pending cases.

Canon 21 of the Professional Ethics of the Illinois State Bar Association and of the American Bar Association impose upon the lawyer the duty “not only to his client, but also to the Courts and to the public to be punctual in attendance, and to be concise and direct in the trial and disposition of causes.” While such canons do not have the force and effect of judicial decision or statutory law, they nevertheless are of interest to this court, provide guidelines to members of the profession and are helpful in reaching determinations in particular cases. Illinois State Bar Ass’n v. United Mine Workers of America, Dist. 12, 35 Ill2d 112, 119, 219 NE2d 503 (1966).

The respondent’s conduct violated the duty owed by him to the court to be respectful of and obedient to its orders and to assist the court in the disposition of the matters pending before it. On May 4, the respondent did not see fit to appear at the time set by the court for the trial of the defendant’s case. While he may have assumed that upon his advice his client was going to change his plea, he owed to the court the duty to make an effort to see that this case was disposed of promptly and in an orderly fashion.

It seems that at all times the convenience of the respondent was his sole consideration, and that he made no effort to assist the court. Had the respondent appeared at the setting on May 4, as he had a duty to do, it may well be that twenty-eight jurors would not then have had to appear for naught on May 6.

Likewise, on May 6, the respondent again should have fulfilled his duty of punctual attendance to the court, and should not have compelled the court to seek both him and his client to ascertain whether the jury should be retained.

The respondent by his course of conduct was the attorney for and the representative of the defendant in the then pending case before the court. Under Circuit Court Rule 1.4(b) and (c), he was not free to withdraw from this capacity without leave of court. (Ill Rev Stats 1963, c 110, par 301.4(b), (e).) Said Rule provides:

“(b) Notice of withdrawal — An attorney may not withdraw his appearance for a party without leave of court nor unless he has given reasonable notice of the time and place of the presentation of the motion for leave to withdraw by personal service or by registered or certified mail, directed to the party represented by him at his last known business or residence address.
“ (c) Motion to withdraw — The motion for leave to withdraw shall be in writing and, unless another attorney is substituted, shall state the last known address of the party represented. The motion may be denied by the court if the granting of it would delay the trial of the case.”

Until such time as the respondent complied with the above Rule, he owed to the court the duty to appear when commanded. He was not free to appear or fail to appear at his pleasure. While it would have inconvenienced him to appear before the court and to advise the court of the inability of his client to raise the necessary trial fee, such fact did not justify his decision to ignore the court and to cause the resulting incommodity to the court and to the jurors present. The respondent, as the attorney for the defendant and as an officer of the court, was under a duty to observe the commands of the court and to discharge his obligations to it in a manner conducive to the prompt administration of justice and consistent with the maintenance of the respect and confidence of the public in our judicial system.

Contempt has been defined “as any act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity.” The People v. Gholson, 412 Ill 294, 298, 106 NE2d 333 (1952). Also see: The People v. Howarth, 415 Ill 499, 508,114 NE2d 785 (1953); and The People v. McDonald, 314 Ill 548, 551, 552, 145 NE 636 (1924).

The parties litigant here admit that the nature of the contempt charged and found was criminal contempt. Consequently, we are concerned only with whether on the record before it, the trial court was warranted in finding the respondent guilty of such contempt. We hold that the trial court was warranted in so finding.

Respondent has cited cases and texts which deal with the question of the scope of employment of an attorney by a client. These citations are concerned with the question of authority of an attorney — actual or implied — as it relates to the power of the attorney to bind his client in dealings with third parties. We are not here concerned with this power. The issue before this court is the duty of respondent to the court as determined by his course of conduct, irrespective of his scope of employment as between himself, as attorney, and his client.

We feel compelled to add one additional observation applicable to both the respondent-appellant and the plaintiff-appellee. Appellate Court Rule 7, IV (Ill Rev Stats 1963, c 110, par 201.7, IV), provides that a point made in the Points and Authorities of a Brief, but not argued in the Argument portion thereof, may be considered waived. We find it difficult to determine in either of the Briefs filed herein, which of the Points and Authorities, if any, were in fact argued.

By virtue of the decision herein, we deem it unnecessary to pass upon the appellee’s motion to dismiss the appeal; and the order of the trial court finding the respondent guilty of contempt, is affirmed.

Order affirmed.

MORAN, P. J., concurs.

ABRAHAMSON, J., dissents.


author: ALLOY, J.

text:
    John J. Gordan, Plaintiff-Appellant, v. Board of Trustees of the Firemen’s Pension Fund of the City of Joliet, Illinois, and Harry Cox, et al., Defendants-Appellees.
    Gen. No. 65-88.
    Third District.
    December 7, 1966.

      Gray, Thomas, Wallace & O’Brien, of Joliet, for appellant.
    Barr & Barr, of Joliet, for appellees.
   ALLOY, J.

This is an appeal from an order of the Circuit Court of Will County affirming the action of the Board of Trustees of the Firemen’s Pension Fund of the City of Joliet, Illinois, denying the application of plaintiff John J. Gordan to be enrolled as a member of the Firemen’s Pension Fund. Action was filed in the Circuit Court of Will County under the Administrative Review Act. It was plaintiff’s theory in that court and on appeal, that the denial of plaintiff’s application to be enrolled in the Firemen’s Pension Fund contravened section 4-107 (b) (3) of chapter 108% of 1963 Illinois Revised Statutes. In this connection it is contended that action on plaintiff’s application was a mere ministerial act and that the undisputed medical evidence required defendant Board to conclude that plaintiff was physically and mentally fit to perform the duties of a fireman. The Act to which reference is made provides in part (in outlining qualifications for the pension fund after having been appointed as a fireman) that applicant “(3) Be found upon a medical examination of a duly licensed physician selected by the Board to be then physically and mentally fit to perform the duties of a fireman.”

The record discloses that plaintiff was appointed a fireman in the City of Joliet Fire Department on August 15, 1964, and continued to perform his duties as a fireman from the time of his appointment for a period of seven months. Prior to the expiration of such time an application had been made within the time prescribed by the Act (3 months). Following the application plaintiff was examined by a physician who was selected by the defendant Board. In the report of physician he specifically found that plaintiff “was examined and found to be in good health at this time. His chest X-ray and urinalysis were normal. However, the X-ray of his back reveals a deviation which predisposes to a weak back. He also has evidence of a healed fracture of the back. If I had seen this man as a prospective employee, I would have strongly questioned the desirability of hiring him. However, since he has already been working for the Fire Department for six months, I feel that you should weigh the X-ray report versus his competence and desirability, etc. This X-ray states that he has a tendency towards a weak back, and therefore, more prone to back trouble than the average. However, at the present time, his back is in good condition.”

Defendant Board of Trustees held a special meeting to consider applications to the fund and at this meeting the report of the physician together with the X-ray reports were presented and read. Upon consideration, the Board unanimously determined to reject plaintiff’s application and to refund to him money he had paid in contributions during his seven-month employment as a fireman. Plaintiff asserts that as a result of the report, plaintiff was found physically and mentally fit to perform the duties of a fireman and that, therefore, the decision of the defendant Board was illegal. The defendant in the Circuit Court and on appeal in this court denies that the plaintiff met the physical qualifications required by the terms of the Act for enrollment in the Firemen’s Pension Fund and specifically asserts that the power and duty of deciding whether plaintiff was qualified for enrollment in such Fund is vested solely in defendant’s Board of Trustees and that such decision of the Board is sustained by the evidence.

It is noted that the language of the section of the Pension Code referred to above requires that an applicant be found to be physically and mentally fit to perform the duties of a fireman in order to qualify for enrollment in the Firemen’s Pension Fund (1963 Illinois Revised Statutes, Pensions, chapter 108%, section 4-107 (b) (3)). It is pointed out that there is no specific finding in the report that plaintiff is physically and mentally fit to perform the duties of a fireman but only that the plaintiff was examined and found to be in good health at this time subject to the observations with respect to his back hereinabove set forth. In the Act relating to Firemen’s Pension Funds prior to its amendment in 1943 (1941 Ill Rev Stats, c 24, § 918) the Act provided that an applicant “passes a medical examination to determine his general physical condition given by a physician selected by the Board of Trustees.” As noted, this provision was amended to provide specifically that the applicant shall “be found upon a medical examination of a duly licensed physician selected by the Board to be then physically and mentally fit to perform the duties of a fireman.”

The power and duty of determining whether an applicant for enrollment in the Firemen’s Pension Fund is qualified for enrollment is vested in the Board of Trustees of the Fund. The language of the Act does not confer the power of determining whether such applicant is so qualified on a physician selected by the Board but that determination is left to the Board itself. In People for the Use of McCambridge v. Board of Trustees of Firemen’s Pension Fund, 95 Ill App 300, the court stated (at page 302):

“The petition proceeds on the theory that if the medical officer appointed by the board reports that the applicant for a pension is physically or mentally permanently disabled, by reason of service in the fire department, so as to render his retirement from such service necessary, the board, on receiving such report, has no discretion in the matter, and must retire the applicant, and grant his application for a pension. In other words, that the medical officer and not the board of trustees, is to determine whether the applicant should be retired and pensioned.
“We cannot concur in this view. We think it clear that it was not the intention of the legislature to confer such power upon a medical officer appointed by the board to make physical examinations of applicants for pensions. The sole duty of such medical officer is to examine the applicant and report to the board the result of his examination. He has no power to conclusively decide that the applicant shall be retired.”

It is obvious also in the case before us, that the obligation is imposed upon the Board to determine whether the applicant is physically and mentally fit to perform the duties of a fireman, although the determination of whether an applicant should be admitted to the pension fund could not be exercised arbitrarily.

On the record before us the physician reported specifically “the X-ray of his back reveals a deviation which predisposes to a weak back. He also has evidence of a healed fracture of the back.” The report also indicated that the X ray disclosed that he had a tendency toward a weak back and, therefore, more prone to back trouble than the average. We cannot say, on the record before us, that the undisputed facts are susceptible of but a single inference. The Board may very well have concluded that this condition would make plaintiff more prone to back trouble than the average and would adversely affect his present fitness to perform the duties of a fireman. The obligations of the trustees not only include the question of determining the qualifications of an applicant to the pension fund, but also to act properly in preserving the fund by admitting to the fund persons who are presently fit to perform the duties of a fireman.

On the state of the record before us, as a reviewing court, we must consider the findings of the administrative agency as prima facie correct. While we may not ourselves have determined, on the record, that this is the correct conclusion, as a court of review we cannot substitute our judgment for that of the administrative board where substantial evidence supports the finding of the board as is true in the present case (Parker v. Department of Registration and Education, 5 Ill2d 288, 125 NE2d 494; Adamek v. Civil Service Commission of Chicago, 17 Ill App2d 11, 149 NE2d 466).

On the basis of the record before us, the judgment of the Circuit Court will be affirmed.

Affirmed.

CORYN, P. J. and STOUDER, J., concur.


text:
    Howard B. Quinn and Charlotte J. Quinn, Plaintiffs-Appellants, v. Charles E. Larson, Individually and as Sheriff of Lake County, Illinois, and Federal Savings and Loan Insurance Corporation, Defendants-Appellees.
    Gen. No. 66-22.
    Second District.
    December 8, 1966.

      Samuel E. Hirsch, of Chicago, for appellants.
    McCarthy, Witry, Lyon & McCarthy, of Chicago, Bruno W. Stanczak, State’s Attorney of Lake County, of Waukegan, and William M. Graham, Assistant State’s Attorney, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Plaintiffs, Howard B. Quinn and Charlotte J. Quinn, brought this suit against the defendants, Charles E. Larson, individually and as Sheriff of Lake County, Illinois, and Federal Savings and Loan Insurance Corporation (herein called “Federal”), to recover actual damages in the sum of $800,000 and punitive damages in the sum of $1,000,000 for an alleged wrongful seizure and sale of plaintiffs’ personal property. The trial court granted defendants’ motion to strike the second amended complaint (herein called the “complaint”) and plaintiffs have appealed to this court.

Federal confessed two judgments against the plaintiffs in the Circuit Court of Cook County and caused executions to be issued thereon directed to the Sheriff of Lake County. Under these executions, the Sheriff levied and sold certain personal property, consisting of farm machinery, livestock, and other chattels, located on property known as the Lakewood Farm. This seizure and sale was the basis for the plaintiffs’ action.

Plaintiffs’ complaint, as best we can determine, alleged that the levy and sale were wrongful for the following reasons: (1) Federal, as an agency of the United States or as a corporation, created pursuant to an Act of Congress, of which the United States is owner of more than one-half of its capital stock, may by virtue of 28 USCA sections 1345 and 1349, bring suit only in a federal district court; and that the state court was without jurisdiction to enter the judgments confessed against the plaintiffs; (2) that Federal is a foreign corporation and failed to qualify to do business within the State of Illinois as required by ch 32, Ill Rev Stats 1965; and (3) that Federal wrongfully caused the circuit court of Lake County — wherein a real estate foreclosure suit was pending in which Federal was plaintiff — to allow the receiver in such suit to permit the sheriff to levy on the personal property of plaintiffs.

Federal moved to strike the complaint on the ground that it was insufficient in law since the federal jurisdiction granted by the cited sections of the US Code is concurrent and not exclusive, and, therefore, the Circuit Court of Cook County had jurisdiction to enter such judgments by confession and to issue execution for the enforcement thereof; and that the defendant, Charles E. Larson, as Sheriff, likewise had authority to levy upon and sell the goods and chattels of the defendant under the authority of such execution. In this motion Federal further attacked the legal sufficiency of the complaint on the ground that Federal Savings and Loan Insurance Corporation is not a business corporation which is required to qualify as a foreign corporation under the laws of the State of Illinois; and because the other matters alleged in the complaint did not entitle the plaintiffs to the relief sought.

Plaintiffs’ reasons (1) and (2) for the wrongfulness of the levy and sale are not argued in their brief before this court. While we seriously question whether a meritorious argument could have been made on these points, we will not consider them because they were not sufficiently or properly presented to us for review and, consequently, will be deemed to have been waived. Appellate Court Rule 7 (IV), (Ill Rev Stats 1965, c 110, par 201.7 (IV)); McMillen v. Rydbom, 56 Ill App2d 14, 29, 205 NE2d 813 (1965); Slovinski v. Beasley, 316 Ill App 273, 276, 45 NE2d 42 (1942).

As to reason (3), neither the allegations of the plaintiffs’ complaint nor the argument of their brief is clear. Plaintiffs asserted that Federal wrongfully obtained an order from the circuit court of Lake County in a pending foreclosure proceeding, allowing the receiver appointed therein to permit the sheriff to levy on certain of plaintiffs’ personal property located on the premises being foreclosed upon — but did not include such alleged order as an exhibit to the complaint or as a part of the record and they failed to allege who were the defendants in the foreclosure proceeding. Plaintiffs argue that the court in which the foreclosure suit was pending had no jurisdiction to give any assistance to the sheriff in making the levy under the execution directed to him from Cook County; and that the taking Of the personal property was thus an illegal and unlawful conversion.

The execution, levy and sale were based on the judgments confessed in the Circuit Court of Cook County. And, this execution could lawfully be directed to the sheriff of any county of the State against land, goods and chattels of the judgment debtors. (Ill Rev Stats 1965, c 77, par 4.) If, as plaintiffs seem to allege, Federal sought to enlist the aid of the court in the foreclosure suit in connection with the satisfaction of the Cook County judgments, it does not follow that such action — even if contrary to the law concerning foreclosure proceedings — would necessarily invalidate the execution, levy and sale which were carried out in an otherwise lawful manner. Plaintiffs have assumed that the alleged aid in the foreclosure suit would taint an otherwise proper action to enforce these judgments. However, they have cited no authority to support this proposition! The cases cited by plaintiffs for the most part pertain to the restrictions which are placed on a court in a foreclosure proceeding with reference to deficiency judgments, and are not relevant to their apparent position as stated in their complaint or to their argument.

The complaint does not indicate how the court aided or enabled the sheriff to make the levy. It was the execution which empowered the sheriff to make the levy. The plaintiffs did not allege that the sheriff, armed with the execution, lacked the authority to proceed with the levy and sale without the assistance of the court in which the foreclosure proceedings were pending. If it were the plaintiffs’ contention that such alleged procedures in some manner invalidated the levy and sale under the execution, they should have concisely pleaded the attendant relevant and significant facts in their complaint and, upon appeal, they should have clearly and adequately presented these facts in their brief and argument.

It is not our duty to speculate as to supposititious facts and contentions in interpreting plaintiffs’ obscure pleadings and brief (Trust Co. of Chicago v. Iroquois Auto Ins. Underwriters, 285 Ill App 317, 330, 2 NE2d 338 (1936)); and it is not for us to assume the role of an advocate.

Appellate Court Rule 7 (Ill Rev Stats 1965, c 110, par 201.7), placed upon the appellants the duty to present to us in their brief, their theory of the case; points and authorities; an adequate statement of facts; and their argument based on such points and authorities. The brief should be comprehensible and prepared in an orderly manner to the end that we may properly ascertain and dispose of the issues involved. We are not required to determine the real issues of this litigation by conjecture, and our rules have the force of law. Security Bank of Mt. Carmel v. Pollard, 3 Ill2d 153, 156, 157 119 NE2d 777 (1954); Biggs v. Spader, 411 Ill 42, 44, 45, 103 NE2d 104 (1952). From an examination of plaintiff’s brief, we cannot ascertain that the trial court in any way erred in dismissing the complaint for failure to state a cause of action with reference to the contention set forth under reason (3).

Plaintiffs also argue that Federal has no right to access to our courts in that it had not secured a license to do business as an insurance company in accordance with the requirements of section 121 of the Insurance Code of 1937 (Ill Rev Stats 1965, c 73, par 733). They further urge that the Act of Congress creating the Federal Savings and Loan Insurance Corporation is unconstitutional if it permits Federal either to do business in our State, or to seek access to our court without first securing a license. Neither of these contentions were pleaded in the trial court.

Section 1725(c) of 12 USCA, provides that “. . . the Corporation [Federal] shall become a body corporate, and shall be an instrumentality of the United States, and as such shall have power ... (4) To sue and be sued, complain and defend, in any court of competent jurisdiction in the United States . . . .” (Bracket italics ours.) This section appears to authorize suits by Federal in the Circuit Court of Cook County, and plaintiffs concede that they are unable to find any case which supports their argument that said section is unconstitutional or that Federal cannot do business in Illinois without first complying with the license requirements of the Insurance Code.

However, since neither of the last stated contentions was alleged in plaintiffs’ complaint, an argument based thereon may not be presented for the first time to this reviewing court as the basis for plaintiffs’ cause of action. Zelney v. Murphy, 387 Ill 492, 495, 496, (1944); Broberg v. Mann, 66 Ill App2d 134, 138, 213 NE2d 89 (1965); Government Employees Ins. Co. v. Dennis, 65 Ill App2d 365, 370, 212 NE2d 759 (1965).

We are of the opinion that the plaintiffs’ complaint failed to state a cause of action, and that the trial court was correct in ordering the case dismissed.

Order affirmed.

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